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Why We Need A New Constitution: Part 15 of 21

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THE EMPIRICAL CONSTITUTION
I consider the foundation of the Constitution as laid on this ground: that 'all powers not delegated to the U.S. by the Constitution, not prohibited by it to the states, are reserved to the states or to the people' . . . To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.[1]
- Thomas Jefferson, 1791
[I]t exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant & cautious definition of federal powers, should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.

Consider . . . the immeasurable difference between the Constitution limited in its powers to the enumerated objects; and expanded as it would by the import claimed for the phraseology in question. The difference is equivalent to two Constitutions, of characters essentially contrasted with each other; the one possessing powers confined to certain specified cases; the other extended to all cases whatsoever . . . .
[2]
- James Madison, 1830

The Constitution was evaded not only because of institutional inefficiency, but because a strict reading of the Constitution would have crippled the Government. Jefferson's view of a limited Constitution (i.e., a Constitution that allowed the Federal Government to pass laws in a particular area only if the power was explicitly granted) was shattered by Chief Justice John Marshall in McCulloch v. Maryland, 4 Wheat 316 (1819). As Marshall stated in that famous opinion:

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We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.[3]

Marshall later stated in Gibbons v. Ogden, 9 Wheat. 1 (1824) that "narrow construction . . . would cripple the government, and render it unequal to the object for which it is declared to be instituted . . . ."[4] This view was extremely controversial. As James Madison stated (with reference to the "Necessary and Proper" Clause in Article One, Section Eight), the Government could only be given new powers through amendment, not through Judicial interpretation: "Whatever meaning this clause may have, none can be admitted, that would give an unlimited discretion to Congress. . . . Had the power of making treaties . . . been omitted, however necessary it might have been, the defect could only have been . . . supplied by an amendment to the constitution."[5] But Hamilton, Madison's contemporary and a fellow Federalist, argued against narrow interpretation, and introduced the concept of "implied" powers, which opened a veritable Pandora's Box of potential "interpretations":

[T]here are implied, as well as express powers, and . . . the former are as effectually delegated as the latter. . . .

The whole turn of the [necessary and proper] clause . . . indicates that it was the intent of the convention by that clause to give a liberal latitude to the exercise of the specified powers. . . .

[A]n adherence to the letter of its powers would at once arrest the motions of the government.
[6]

But Andrew Jackson stated (many years later) that there were natural limits to the Necessary and Proper Clause - for example, Delegation: "It can not be 'necessary' or 'proper' for Congress to barter away or divest themselves of any of the powers vested in them by the Constitution to be exercised for the public good."[7] Jackson's view, as we have seen, was ignored.

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James Madison, writing in 1819, could see the handwriting on the wall, and argued vehemently that if such a broad interpretation were given, the Constitution would not have been ratified:

[W]hat is of most importance is the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress . . .

[I]t was anticipated I believe by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant as what has occurred. And those who recollect, and still more those who shared in what passed in the State Conventions, thro' which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification.
[8]

According to Madison, broad interpretation would eviscerate the concept of a written constitution:

It has been the misfortune, if not the reproach, of other nations, that their Govt's have not been freely and deliberately established by themselves. It is the boast of ours that such has been its source and that it can be altered by the same authority only which established it. It is a further boast that a regular mode of making proper alterations has been providently inserted in the Constitution itself. It is anxiously to be wished, therefore, that no innovations may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted. If the powers be deficient, the legitimate source of additional ones is always open, and ought to be resorted to. . . .[9]

This opinion was in line with the views of Jefferson, who had rejected the road of broad construction, on similar grounds:

When an instrument admits of two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written constitution. Let us not make it a blank paper by construction. [10]

It was not to be, however. As Marshall and Hamilton saw, Government could not govern in a growing society under a narrowly construed Constitution. Consequently, as Tugwell (1976) noted,

[A]t the very beginning of the government's operations the Constitution began to unfold . . . it was in these earliest years that the compromising began and the Constitution began to soften and lose its sharp outlines. . . .

Once strict construction was abandoned, the limits of implication depended on what powers could be seized and kept. [11]
And this continued over time:
The Constitution, as a product of [Supreme] Court interpretation, became more and more ambiguous. What had begun in the nation's very administration was relied on more as the years passed and extrapolations became more numerous. Because they were never certainly permanent, the nation found itself living with a basic law it revered but could neither understand nor depend on. [12]

Over time, the Supreme Court developed a body of "law" through the doctrine of stare decisis. Under the policy of stare decisis ("the decision stands"), law was established by the Judiciary through the observation of their prior decisions as precedents - Judicial determinations that had to be obeyed as if they were laws. This, of course, directly contradicted the provision in Article Six that the Constitution (and not the opinions of the Supreme Court) was the "supreme Law of the Land." But, as with the expansion of Congressional power, there were pragmatic reasons for accepting the doctrine of stare decisis (and thus expanding the power of the Judiciary). According to Chief Justice Stone, "the rule of stare decisis embodies a wise policy because it is often more important that a rule of law be settled than that it be settled right."[13] A grim truth. Nature abhors a vacuum, and so does society. The Supreme Court filled the vacuum created by ambiguity and the exceedingly difficult process of constitutional amendment contained in Article Five by recognizing its prior decisions as precedents, even though those precedents may themselves not have been in line with the written text of the Constitution. This phenomenon, however, was not intended by the Framers of our Constitution:

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What [the Framers] did not foresee is that because of this provision [Article Three, Section One: "The judicial power of the United States shall be vested in one supreme court . . ."], in conjunction with the extremely difficult arrangements they set up for amending the Constitution, the federal courts would sometimes pervert and abuse this power and would in effect write legislation of their own. What they foresaw still less was that because the members of the Supreme Court as well as of other federal courts owed their appointments to the President and the Senate, they would be creatures of the central government; and therefore their 'interpretations,' over the years, would steadily tend toward the aggrandizement of centralized federal power at the expense of states' rights. The Tenth Amendment, in fact, has long been treated by the Supreme Court as if it did not exist. [14]

END PART 15: TO BE CONTINUED

FOOTNOTES

[1] "Opinion on the Constitutionality of the Bill for Establishing a National Bank," Thomas Jefferson, February 15, 1791, 3 Founders' Constitution 246.

[2] Letter from James Madison to Andrew Stevenson, November 17, 1830, 3 Records 488, (emphasis supplied)

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Barry Krusch is president of Intelligent Communities, Inc., sponsors of The Intelligent Community Initiative. He is also author of 2 books, The 21st Century Constitution and Would The Real First Amendment Please Stand Up?

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