By chance I read a celebratory squib last July 14. I objected that Bastille Day merits no celebration, that it symbolizes a series of events that bathed Europe and much of the rest of the world in blood. According to family lore, my four-greats-grandfather died in his early 20s at a north Prussian site in 1806. It seems likely to me that Murat’s invading French horsemen had something to do with that poor fellow’s untimely death.
The standard patriotic account of the French Revolution and the associated wars (and I include the Napoleonic Wars among them, as I”ll explain momentarily) holds that they overthrew a corrupt old regime. That regime deserved its fate, the story goes, because the king and nobles, along with the bishops, abbots, priests, monks, and nuns, were soaking the common people dry. The burden of this iniquitous social structure had to be thrown off, and finally it was.
Polls in France show that only some percentage of the population in the low teens considers itself monarchist. Such people generally favor restoration of the Bourbon dynasty, still the ruling dynasty in Spain and long the ruling dynasty in France. The government, whether led by socialists or Gaullists, propagandizes on behalf of the Revolution’s egalitarianism and enforces its anti-clericalism. Guillotines, aggressive wars, official atheism, and Napoleon I? Ah, if you want to make an omelet, you must first break a few eggs.
Historians commonly distinguish between the Revolution and the First Empire, the Age of Napoleon, which supposedly followed immediately. Their attitude is that of the attendant who asked the ex-emperor in his end-of-life exile why he had betrayed republicanism and made himself a monarch. (Napoleon’s answer, interestingly, was that, “We can”t all be George Washington.” How right he was.) Surely this was a great turning point.
I tend to accept instead the judgment offered by Ralph Waldo Emerson in his fascinating essay “Napoleon; or, The Man of the World” (1850). Napoleon made himself emperor, yes, but he was a new kind of emperor. In fact, the emperor of the French (note: not “emperor of France”) scoffed at old-fashioned, hereditary monarchs such as the Habsburgs. He intentionally insulted the Hohenzollerns.
As Emerson puts it, Napoleon was a representative not of the conservative, but of the democratic class. He stood not for the inherited, the traditional, or the timid, but for “the class of business men in America, in England, in France and throughout Europe; the class of industry and skill.” One might have thought this a self-evidently ignorant judgment. Was it not Napoleon who contemptuously (or impotently) referred to the English as a race of shopkeepers? What useful insight might Emerson have had in referring to Napoleon as a man of the democratic rather than of the conservative class?
Seemingly, he had in mind Napoleon’s solvent effect on everything he touched, his feeling that he must replace whatever he encountered with something new and more sensible. Not 300 German states, but a few. Not separate courts in Italy for commoners and nobles, but one set of courts. Not a hodge-podge of law in France, but the Code Napoléon. David as court painter, scientists on his Egyptian campaign who discovered the Rosetta Stone, everything worthy of inquiry.
The soldiers in Napoleon’s armies were told that there was “a baton in every knapsack.” Emerson has Napoleon boasting that he made his generals from mud, and, with a few exceptions, it was true: merit, not descent, was his chief criterion of preferment.
Soon enough, other European countries felt compelled to follow. So, for example, after the disastrous war in which my ancestor seemingly was killed, Scharnhorst pushed through reforms in Prussia theoretically opening all military ranks to commoners. The German states were never again disaggregated, and soon enough, “Italy” and “Germany” would no longer be merely geographic designations.
To Emerson, this all amounted to a kind of triumph of the common man. He seems to accept Napoleon’s argument that he had been the emperor of the Revolution. So do I. As Emerson put it:
His grand weapon, namely the millions whom he directed, he owed to the representative character which clothed him. He interests us as he stands for France and for Europe; and he exists as captain and king only as far as the Revolution, or the interest of the industrious masses, found an organ and a leader in him.
In the field, then, Napoleon commanded as an autocrat, but a particular kind of autocrat: a popular autocrat.
As the armies of the First Republic became those of the French Empire, and as their brilliant chieftain and his able lieutenants (Davout, Suchet, Berthier, Lannes, Murat, and the rest) subjected Europe to French rule, one saw playing itself out the authentic spirit of the Revolution. Political imperatives had become interchangeable with morality, and the soldiers of the grande nation represented those imperatives. If some Gutzmann had to die in a remote part of northern Prussia, so what? It was glorious! And the French deserved what they could take from the denizens of benighted monarchies, anyway.
What does Bastille Day represent? Ultimately, it represents the elevation to power of the classic man on horseback, a representative in his tastes, aspirations, and (Emerson again) “intellect without conscience” of the democracy. It represents ideology as license. Napoleon took what he wanted in power, things, people … everything. For him, fame was virtue. This was the principle of the French Revolution writ large, of the new class whose ascendancy was aborning, in France and elsewhere.
What is there to celebrate in that?
]]>Austin Bramwell began his first attack on me by saying that he had read my books. In his second, he quotes at length from Lysander Spooner, as if I were unaware of his argument. Yet, Tom Woods and I quote Spooner in the conclusion to Who Killed the Constitution? right before we observe that perhaps the history of America’s experiment with written constitutions proves that the idea is a failure. It may be that to expect government officials to exercise only limited powers simply because they have taken an oath to abide by written constitutions is unrealistic. Perhaps once the government has a monopoly of force, inherent human selfishness and self-regard will lead ineluctably to unlimited government.
Bramwell does not care about that. Not only does he boast of having invented a novel argument for unlimited congressional power under the Fourteenth Amendment, but he argues the irrelevance of the consent of the governed. What matters, according to Bramwell, is that the people be governed well.
In other words, do the trains run on time?
I have little to say about constitutions to someone who cares neither about the consent of the governed nor about limitations on government authority. Those are the only two principles underlying the American experiment in written constitutions. If you are uninterested in either idea, you may as well join Bramwell in saying that the Fourteenth Amendment has no meaning, and so Gutzman is wrong to insist that it (or, apparently, any other constitutional provision) does.
Laurence Tribe and William Brennan could not have said it any better.
This is what I meant when I said that Bramwell was merely parroting what he learned at an elite American law school. He thinks I slighted his signal contribution to untethered judging, his universally unheeded theory about the Fourteenth Amendment. He asks me to help him locate others who have agreed with him, even offers to pay me to do so, and I respectfully decline. I tell him here and now, however, that I am certain without even reading it that it is no worse an argument than anything Justice Brennan deigned to emit. I do not waste my time scouting out all of the idiosyncratic justifications for unlimited power, from Caligula to the present. They have contributed nothing to civilization.
On the other hand, Bramwell seemingly considers the many different iterations of Brennan’s “Rule of Five” (With five votes, I can do whatever I want) offered up by Supreme Court justices from time to time to be worthy of serious attention. He can go on Westlaw and count the number of times that Supreme Court opinions have included the phrase “evolving standards of decency,” and then return to tell us it is only three score. Wow! Gutzman is wrong: Brennan and Company have not been guided solely by that slogan. But, of course, I never said that they had been. I pointed out that they have in many areas been guided only by their whims; “evolving standards of decency” is but one pithy way they justified themselves. Who cares that they cloak it in different garb in non-Eight Amendment contexts? I never denied it. I don”t care. It doesn”t matter.
One reason why I consider it unlikely that the U.S. Constitution can be resuscitated is that legal training is so unlike education. People like Bramwell, having paid good money for their JDs, consider themselves expert in constitutional history”even when, as in his case, they are not.
Consider the first-semester undergraduate or law school course in constitutional law. In the first session, students typically learn the meaning of Marbury v. Madison (1803), the Supreme Court decision laying claim to the power of judicial review. In the typical second session, students meet McCulloch v. Maryland (1819), in which Chief Justice John Marshall adopted Alexander Hamilton’s argument for nearly unlimited congressional power under the Necessary and Proper Clause.
Bramwell tells us that I am wrong to say that McCulloch held that the Necessary and Proper Clause empowered Congress to charter a bank. He tells us that the holding was based on the Tax and Spending Clause. His first error lies in thinking that Marshall says that that clause (along with the several others to which Marshall refers) empowers Congress to spend without reference to the objects of the spending, when Marshall’s opinion first takes great pains to say that the object of the spending is appropriate under the Necessary and Proper Clause.
R. Kent Newmyer, in the leading scholarly Marshall biography, says that “the question at hand” in McCulloch was “What, in short, was the meaning of “necessary and proper?”” In a different work, his classic account of the Supreme Court under Marshall and his successor, Roger B. Taney, Newmyer says of McCulloch that, “The scope of congressional power, then, came to hang on the meaning of “necessary.”” The editor of Marshall’s papers, Charles Hobson, in his Marshall biography notes James Madison’s objection that McCulloch broke down the Constitution’s intended link between the Necessary and Proper Clause and the enumeration of congressional powers in Article I, Section 8. Marshall’s opinion in the case is very complex, but Hobson summarizes the key section by saying that Marshall first enunciated a rule for applying the Necessary and Proper Clause, and then applied that rule to the facts at hand to arrive at his holding.
You can believe Bramwell, or you can believe Newmyer and Hobson. Or, if you don”t have time to read Newmyer and Hobson, you can sit in on the second session of an introductory course in constitutional law. I cannot believe that I am debating this.
Bramwell notes that I insist on Jefferson’s standard of constitutionalism: that a constitution be interpreted “according to the true sense in which it was adopted by the States, that in which it was advocated by its friends.” He then provides extensive quotations from Alexander Hamilton and James Madison to the effect that one must not, as Bramwell puts it, “look into the intention of those who wrote it.”
Apparently Bramwell does not know the difference between the Philadelphia Convention that wrote the Constitution and the state conventions that ratified it. I agree with Hamilton and Madison that one should not ask what the Philadelphia Convention intended, even as I agree with Madison and Jefferson that one should ask what the ratification conventions understood. The ratification conventions did not write the Constitution, but they were the ones who gave it effect. They were, in a constitutional sense, the legislators whose understanding counts. Their understanding was shaped by what the Constitution’s friends said of it while it was being considered for ratification, as Jefferson said.
If, as Bramwell implied in his first piece, he had read my books, he would know that. If, as Bramwell implied in his first piece, he had read my on-line articles, he would know that. If he had simply read the Constitution itself, he would know that.
He makes the same mistake when, under “It is unclear whose expectations one should consult,” he says, “We can start with the handful of men who actually drafted the Constitution’s provisions.” Why would we do that? Not for any reason I know. They had no power to make law. One might as well interpret my will by asking not what I meant, but what my lawyer meant. Perhaps Bramwell sets up this straw man simply so that he can knock it down, but it seems more likely that he has confused the men who wrote the Constitution (whose opinions Hamilton and Madison called irrelevant) with those who ratified it (to whose understanding Madison, Jefferson, and I said one must look).
I realize that taking up all of Bramwell’s Brennan-/Tribe-/Douglas-like excuses for rejecting originalism in sequence is more than a typical reader will have patience to bear. I don”t have patience for it either. What it comes down to is that Bramwell believes” indeed, has said in his two Takimag pieces asserting that I don”t understand the Constitution”that the Constitution’s text has no meaning, that the consent of the governed is a non-issue, and that arguments for unlimited government power are worth inventing. If he feels bound to cloak that position in a lot of mistaken assertions about my having erred, one should not lose sight of the forest for the trees.
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Bramwell says that Alexander Hamilton ranks with James Madison as one of the two greatest Framers. He is right only in the sense that Madison was among the five greatest presidents: Madison was a great man, but a sub-par president. So great was his non-presidential career overall that he was among the greatest of presidents. Similarly, Hamilton was a very significant man (largely in a negative sense), but a virtually insignificant Framer. His contribution to the Philadelphia Convention lay mainly in spelling out what kind of elected monarchy he preferred, leaving the Convention for several weeks, returning to see, and to say, that the draft Constitution was unlike what he wanted, and signing it anyway. Yet, so significant was Hamilton overall that he was among the most significant of the Framers. One doubts that this is what Bramwell means in calling Hamilton a “great Framer.”
Bramwell refers to various tendentious “scholars” and judges whose “theories” of and “approaches” to the Constitution always lead them to the desired outcomes. (Bramwell admires them.) Here, one is reminded of the meaning of the phrase “law office history.” I explained in The Politically Incorrect Guide to the Constitution that lawyers” education about the Constitution consists almost exclusively of reading judicial opinions and, perhaps, some bits of The Federalist, and that this was inadequate. It can leave one thinking that McCulloch is unquestionable, say, or that Alexander Hamilton’s was among the most significant contributions to the Philadelphia Convention. It can leave one unaware of the difference between the convention that wrote the Constitution and the ones that enacted (ratified) it. It can leave one certain that the Constitution has no meaning. And, in the process, it can make one certain that he knows all there is to know about the subject.
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That is why I have often told people that given a choice between studying “constitutional law” and just reading the Constitution, they will have a better idea what the Founders established if they take the latter option.
I doubt that many people outside the population of other alumni of elite law schools share Bramwell’s view that the Constitution is meaningless and that arguments need to be devised for Congress to exercise more power. The chief point of my popular-audience books is to call the politicians” and judges” adherence to the Bramwell/Brennan view to people’s attention, and to distinguish between their view and the one to which the people actually assented. Bramwell says that few people share my criticism of the current state of “constitutional law.” To judge by the response to my books, that number is growing. Yet, even if I were alone, the Jeffersonian approach to the Constitution would still be right.
]]>If, as he thus tacitly claims, Bramwell had actually read my books, he would know better. Not only do I not claim “nobody who actually reads the Constitution could possibly conclude otherwise,” but I go to great lengths in The Politically Incorrect Guide to the Constitution to explain why products of law school mis-education like Bramwell will often conclude otherwise. Such poor souls are taught that the U.S. Constitution gives the Federal Government unlimited power from the first session of Con. Law I. Among the results of this indoctrination, as Tom Woods and I note at book length in Who Killed the Constitution? is a bipartisan consensus that the Federal Government is really an unbounded national government.
In American law schools today, one is subjected to reading in “constitutional law,” the body of case law purportedly implementing the U.S. Constitution. In the opinions of Justices such as Douglas, Warren, Souter, Kennedy, and numerous others, particularly William Brennan, one reads again and again the argument that Bramwell adopts: that the Constitution’s chief provisions have no fixed meaning. On the basis of this claim, which Bramwell seems to think original, the Brennans of the world have felt free to impose their own ever-evolving views of the “evolving standards of decency” of a maturing society.
Bramwell notes that I object to the liars” enterprise of telling the American citizenry that the Constitution constantly evolves to require enforcement of intellectuals” latest pet projects. He thinks there is some hypocrisy in my objecting. While I dislike the judges” dishonestly foisting their views upon us in this way, after all, I must have my own ideological commitments, too, or else I would not object. Lying behind my objection is an ideological commitment.
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But Bramwell’s Gutzman-who-claims-to-have-no-principles is a straw man. I never claimed to have no principles. I believe in the idea, once highly fashionable in what then were thirteen colonies, of “government by the consent of the governed.” If you have never heard of that idea, it may be that you, too, have subjected yourself to indoctrination in “constitutional law.”
Bramwell points out that Chief Justice John Marshall, in McCulloch v. Maryland (1819), held for a unanimous Supreme Court that the Necessary and Proper Clause gave the Congress very wide legislative latitude. Citing McCulloch on behalf of the idea that the Constitution created a Congress with virtually unlimited powers is what one expects from products of “constitutional law” education; aspiring lawyers read Marshall’s ex cathedra pronouncement in their first year of law school, and they accept it unthinkingly.
Contrast James Madison’s response on first reading Marshall’s opinion. Madison knew a thing or two about the Constitution’s meaning, since he had been the chief instigator of the Philadelphia Convention that drafted the Constitution, the prime author of the Constitution, the foremost proponent of the Constitution’s ratification in Virginia and the country at large, and the main draftsman of the Bill of Rights (including the Tenth Amendment). Thinking back to his campaign to secure ratification, Madison wrote of McCulloch that “the avowal of such a rule would … have prevented [the Constitution’s] ratification.”
Consider that again: If the people had known that the Supreme Court was going to hold that Bramwell is correct and Congress’s powers aren”t limited by the Constitution, Madison said, the Constitution would not have been ratified.
Madison was right, and not only in regard to Virginia. To my knowledge, in New York, South Carolina, North Carolina, Massachusetts, and, most significantly, Pennsylvania, besides Virginia, Federalists were at pains during the ratification campaign to say that the Federal Government would have only a few powers, with the rest being left to the states. The chief argument on this ground in Pennsylvania came from Framer James Wilson, whose October 6, 1787 speech to that effect was the most widely reprinted and discussed of any argument for ratification made during the entire contest.
In the Virginia Ratification Convention, the notion that Congress would have only a few enumerated powers underlay the report of a ratification instrument made by a five-man committee appointed for the purpose. It was repeatedly explained, and with increasing annoyance as the Anti-Federalists seemed not to “get it,” by the Federalists” chief spokesman, Governor (and Philadelphia Convention Framer) Edmund Randolph.
In Randolph’s words, Congress was going to have only the powers that were “expressly delegated.” George Nicholas, the ratification instrument committee’s other spokesman, made the same point. Nicholas also said that Virginia was to be as one of thirteen parties to a compact in ratifying the Constitution and that its understanding in doing so would bind the Federal Government ever after, as if the Constitution were a contract. Sitting silent through this explanation were the committee’s other three members, two of whom were James Madison and … John Marshall.
So how could Marshall have said the opposite 31 years later? Charitably, perhaps he forgot. More likely, because he knew he could get away with it, and that is what he wanted to do.
Another ground for the notion that Congress’s powers are limited by the Constitution comes from the common law. The powers of Congress are listed in Article I, Section 8. Under the English legal maxim that “whatever is not included is excluded,” that list was exhaustive. This maxim was much discussed during the ratification debate, and not only in relation to the powers of Congress: Anti-Federalists wanted a bill of rights, and Federalists initially responded by saying that since whatever is not included is excluded, to affix a bill of rights to the Constitution would be dangerous.
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Thus, Marshall knew perfectly well in 1819 that “counsel for Maryland” in the McCulloch case had argued for the same reading of the Constitution that Federalists (including Marshall) had sold to the Virginia Ratification Convention. He also knew, however, that people like Austin Bramwell, while they might claim to have read history (the foregoing is in my books, concerning which Bramwell claims expertise), likely would really only have read what the Court said in McCulloch. They would buy the lie out of ignorance.
Bramwell elsewhere in his attack on me distinguishes between the “meaning” of the Fourteenth Amendment and “the alleged intentions of those who wrote and ratified it.” This is a common distinction among lawyers who want to concede unlimited authority to some instrumentality, agency, or branch of the Federal Government. A provision’s meaning, they say, is not the same as what the people intended; rather, legal meaning changes from time to time as society (meaning judges) becomes more enlightened (as, in their opinion, they constantly do). Yet, the equation of a provision’s meaning with the intention of its enactors runs through American law. So, for example, probate courts, in administering wills, attempt to give effect to the intentions of testators. Courts in enforcing contracts attempt to effect the intentions of the parties. Treaties” meaning depends on the understanding of the signatory nations.
And when it comes to constitutions, as Thomas Jefferson wrote, the federal Constitution should be enforced “according to the true sense in which it was adopted by the States, that in which it was advocated by its friends.” In other words, according to the original understanding.
Again, if Bramwell had read my books, as he seems to claim to have done in the snippet of his article repeated at the top of this essay, he would know that Jefferson said this. One could provide numerous similar statements from the Founding. Indeed, what else could “government by the consent of the governed” mean in regard to constitutional interpretation than enforcement of the original understanding? After all, it was only to what they understood that the governed arguably consented.
Bramwell has a better idea: that judges should feel free to “interpret” the Constitution in any way they like. Thus, for example, he argues that the Fourteenth Amendment’s meaning is “totally opaque.” “Nobody knows” what it means. William Brennan could not have put it any more clearly. If one ignores the history of a provision’s ratification, Bramwell-like, one can arrive at this conclusion about a lot of constitutional language. “Ex post facto laws?” I don”t speak Latin, and so I don”t know. Following Bramwell, I cannot ask what it meant in 1788. “Habeas corpus?” Totally unclear. “Veto?”Search me. I guess we”ll have to trust to the likes of William Brennan and Austin Bramwell to invent useful new “interpretations” from time to time. Alternatively, I could claim that the ban on ex post facto laws is a ban on federal budgets that omit to give $1,000,000 per year to me. That would be a less outrageous construction than some of the ones Bramwell is defending.
Any theory of the rule of law would hold a meaningless provision unenforceable. Anglo-American law traditionally has. Still, for Bramwell, as for Brennan, the Fourteenth Amendment’s supposed opacity makes it a bottomless well of judicial power: judges can do anything they want when invoking the Fourteenth Amendment.
Not only is it uninteresting, but Bramwell’s position is plain silly. Of course one must ask what people at the time thought these provisions would mean before he can implement them. I don”t need to know Latin to know what habeas corpus is. And even a poor product of immersion in Brennanism can read Raoul Berger’s classic Government by Judiciary: The Transformation of the Fourteenth Amendment and learn what the Fourteenth Amendment means.
I noted in The Politically Incorrect Guide to the Constitution that legal training should not be confused with an education. I thank Bramwell for his essay in corroboration of my point. He joins a slew of Straussians, neocons, liberals, and other devotés of unlimited government in providing that.
Given a choice between Bramwell’s position and Jefferson’s, count me a Jeffersonian adherent to the bedraggled old notion that, yes, the Constitution has a fixed meaning. Despite what Bramwell says, I know and have repeatedly written that the Jeffersonian position is defended by only a small minority of intellectuals. It was ever thus.
]]>So, for example, the Republican Party decried the Supreme Court’s decision in Kelo v. City of New London (2005) that the Fifth Amendment did not bar New London, Connecticut, from seizing private property for a public purpose. According to the stock criticism, the Fifth Amendment left open the possibility of government seizure of private property only for public use, not for public purpose. What this criticism omits, however, is that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government. Since the government of New London is not the Federal Government, an originalist reading would hold the Fifth Amendment inapplicable.
Just try explaining this to a Republican audience. Not only do Republicans argue for application of the Fifth Amendment’s Takings Clause against state governments. They also vociferously insist that the Second Amendment is enforceable against the states. In fact, Republican lawyers have recently found success in persuading some federal judges for the first time to treat the Second Amendment as enforceable against the states. It once was only the left-most Supreme Court advocates (for example, those who argued against prayer in public schools) who argued for the Incorporation Doctrine. Now, however, this is a “conservative” position and “conservative” public-interest lawyers take this position before the Supreme Court.
The Bill of Rights as an obstacle to federal infringement on state authority was only one element of the underlying principle of the U.S. Constitution. This is “federalism,” the notion that the states (meaning the sovereign people of each state) had delegated only particular powers to the Federal Government. In the Reagan era, with Edmund Meese as attorney general and Charles Cooper as assistant attorney general, this principle received an emphasis it had not since 1937.
Now, however, the Republicans take an energetic position on the wrong side of the question. So, for example, Sen. John Thune of South Dakota recently offered his Concealed Carry Amendment to a defense authorization bill. Under this amendment, if someone had a right to carry a concealed weapon in his home state, he would be given federal authorization to carry it in states he might visit. What constitutional provision empowers Congress to force this policy upon the states? Don”t be silly.
Of course, the question of gun rights is not the only currently live one that excites core Republican voters. Therefore, it also is not the only one that prompts Republican office-holders to ignore the principle of federalism. In 2006, the editors of National Review endorsed the notion of an amendment to the Constitution defining marriage. Why should the Federal Government impose a single definition on all the states, who have always had complete control over such questions? Because federal judges cannot be restrained, those editors reasoned, from legislating their own definition. In other words, if you don”t trust one fox, put the whole fox family in charge of the chicken coop. Alas, to argue for augmenting federal authority seems to be what the editors of National Review reflexively do. Who cares about the Tenth Amendment’s reservation of all undelegated powers to the states?
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No wonder Democrats and pro-choicers generally say that the Republicans are hypocritical in invoking the principle of federalism against Roe v. Wade. What is a “principle,” they rightly wonder, that is only invoked when it cuts in the desired direction? That is a good point. It gains additional force from the fact that Republicans do not even invoke it consistently across all abortion disputes. In Gonzales v. Carhart (2007), the Supreme Court upheld a congressional ban on partial-birth abortion. In a concurring opinion in that case, Justices Antonin Scalia and Clarence Thomas noted that the Commerce Clause, as properly understood, did not give Congress power to enact such a ban. However, they said, so long as the Court’s unfounded Commerce Clause precedents stood, Scalia and Thomas would join in extending them to this new area.
Principled originalism in action!
Republicans also generally join in opposing pro-black discrimination in government hiring, firing, promotions, contracting, and other such decisions (and cheered the recent Ricci decision). They do this on the ground that the Equal Protection Clause of the Fourteenth Amendment requires color-blindness on the part of government. This is of course a morally appealing argument. But the issue is not whether the Republican policy positions are appealing; that is a legislative question. The question is whether the Republicans” constitutional position has merit.
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Here, as in the other areas described above, it does not. The Equal Protection Clause was not intended as a wide-ranging mandate for government equality, but to have much narrower application. The Supreme Court long recognized this fact. Conservatives do their reputation for intellectual honesty no favors by arguing for extension of unfounded precedents.
In short, then, Republicans generally do not stand for principled adherence to originalism, which once was called “the Constitution.” Across a range of questions, they mirror their Democratic opponents in advocating judicial legislation of their preferred legislative outcomes.
]]>New Haven had administered the test to 118 firefighters, 25 of whom were black. None of the blacks qualified for promotion to the 15 available positions, while all 20 of the white (including Hispanic) plaintiffs did. Black firefighters who had failed the examination threatened to sue New Haven if it considered the test in making promotion decisions. Their suit would be based on the statute’s disparate impact provision.
It was the disparate impact provision that Pat Buchanan and others had in mind when they accused President George H. W. Bush of having signed a quota bill when he agreed to revisions of the “64 Civil Rights Act in 1991. The elder Bush’s critics said that if employers knew they could be successfully sued for using any measure that disproportionately excluded black applicants, they would seek measures that included proportionate shares of black applicants. That is, they would tacitly follow a quota system.
The facts of Ricci v. DeStefano vindicate Bush’s critics. Shot through American employment law is a requirement that favored minorities be proportionately successful; most applicants who are rejected in cases like this are not so fortunate as to have the legal resources upon which the New Haven firefighters involved in this case could draw. The people who said that Buchanan was race-baiting by making this point now must consider that the Supreme Court has agreed that in this perfectly predictable disparate-results case, the firefighters suffered illegal treatment.
But not unconstitutional treatment. At least, that is how the Court’s opinions read. The Court did not reach the issue of the constitutionality of New Haven’s decision to throw out the test results because, it said, Title VII banned New Haven’s action. How could Title VII simultaneously ban New Haven from throwing out the test results and ban use of promotion criteria that have disparate impacts on different ethnic groups? Because Anthony Kennedy wrote the decisive opinion in the case.
Since the early 1970s, when President Richard Nixon appointed Lewis Powell to the Court, there has been at least one justice who specialized in “moderate” behavior, in writing “non-ideological” opinions. From Powell through Sandra O”Connor to Kennedy, in other words, there has been at least one justice who specialized in never writing a clear opinion that gave applicable guidance to lower courts charged with the task of employing the Court’s reasoning in succeeding cases.
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Kennedy said in Ricci that before a government institution could throw out a promotion criterion with a disparate impact, it must have a “strong basis in evidence” that a disparate-impact lawsuit was likely. In other words, it must have good reason to think that if it came to that, Anthony Kennedy would favor the government’s action. Consider yourself a judge on an inferior federal court. Would you find that guidance useful?
Likely not. That is why the head of the New Haven black firefighters” organization said in the New Haven newspaper on Tuesday that he was considering bringing suit against New Haven if it made promotion decisions on the basis of the examination and promoted an all-white group of firefighters to captain and lieutenant. New Haven taxpayers should at some point send Justice Kennedy a token of their thankfulness to him for the burden of ongoing litigation of the matter that they seem certain to have to bear.
The winning attorney in the case, in common with some of the white firefighters, spoke to the media after the Court’s ruling was announced. In different ways, they said that in America, whether an injured party was white, Hispanic, or black was immaterial. These statements reflected the social consensus in the United States. One hopes that someday, they will reflect the law.
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New Haven Mayor John DeStefano’s response more accurately reflected thinking in the reigning precincts of the Democratic Party. “Today there is a natural tendency to count winners and losers,” the Hartford Courant had him saying. “I have no doubt that the firefighters who brought the lawsuit genuinely felt that they played by the rules, that they did nothing wrong and that they were egregiously wronged. I also have no doubt that there is another group of firefighters today who feel that the rules are constantly stacked against them and that when they finally do start to get ahead, the rules get changed.”
In other words, maybe the victorious 20 “feel” that they were mistreated, but observers should be equally concerned for the firemen who had come to expect proportionate promotion regardless of examination performance. Each is a “feeling,” a merely visceral response. DeStefano’s understanding of the situation remains that it is wrong to apply a neutrally derived examination on a neutral basis.
James Antle wrote at The American Spectator that this case “exposed the extent to which anti-discrimination laws, intended to protect all Americans regardless of color or creed, can be used by the politically connected to discriminate.” There is nothing new about this, of course. It was perfectly predictable. Since it was predictable, one might hazard the guess that it was intended. And, in one more way, one might ask what exactly the Bush dynasty was good for.
]]>They are right to think that a great amount of ink has been spilled on these topics. Where a layman’s intuition fails him, however, is in telling him that these subjects must have been, or can ever be, exhausted.
Consider the current state of Thomas Jefferson scholarship.
In 1997, Annette Gordon-Reed published Thomas Jefferson and Sally Hemings: An American Controversy. Gordon-Reed, a professor at New York Law School since 1992, hazarded a new approach to an old question: whether Jefferson fathered Sally Hemings’s children. She also described the way that bygone Jefferson scholars had handled the issue.
The first person publicly to assert that Jefferson had children by one of his slaves was James Callender. This hired-gun journalist leveled this charge to besmirch Jefferson’s reputation at the dawn of the 19th century. While Jefferson’s partisan opponents snickered or sneered, this allegation had little contemporary political effect. (Instead, Callender himself became the target of obloquy that is still heaped upon him today.)
In fact, exceedingly little attention was paid to such issues in the nineteenth century or the first half of the twentieth. Only coincidentally with the Civil Rights Movement did scholars begin to investigate the history of slavery in America. One of the great fruits of American historiography is the increasingly full picture of slave society bequeathed us by scholars as diverse as Kenneth Stampp , Eugene Genovese, John Hope Franklin, and Peter Kolchin these past five decades. Reading their works, one is struck by how little was known before.
Still, even as the tide of slavery scholarship swelled, the image of the Master of Monticello remained essentially unblemished. From their high positions at the University of Virginia, historians Dumas Malone and Merrill Peterson”authors respectively of the leading multi-volume and one-volume biographies”scoffed. A psychohistorian who dared to raise the question in the 1970s earned stern rebukes from the “thoughtful” precincts of both academia and the media.
Gordon-Reed’s 1997 book asked why that should be. Marshalling long-standing oral traditions in black families connected to Monticello, traditions that included but certainly were not limited to claims of descent from the penman of the Declaration of Independence, Gordon-Reed asked how the matter would be treated if those traditions had been preserved by white people instead of by black. Notably, she made no assertions. She simply asked the question. As a historian of Jeffersonian Virginia not fixated on sex, slavery, or the Hemings question, I found her book persuasive. Jefferson, it seemed, had fathered children by Hemings.
Thomas Jefferson and Sally Hemings: An American Controversy was not merely a work of historiography, however: it also instantly became an artifact of American social and intellectual history. Virtually immediately, Gordon-Reed found herself under attack. Her book suffered comparisons to that 1970s psychohistory, comparisons it in no sense deserved. Psychohistory, a trendy approach in the days of “Boogie Oogie Oogie” and “Saturday Night Fever,” pet rocks and 8-tracks, and ex-seg committee chairmen and Cabinet secretaries, featured in the hands of the inexpert a heaping helping of speculation about its subjects” thoughts and psyches. Gordon-Reed’s book, on the other hand, dared simply to ask the right questions and to interrogate the subject of Jefferson historians” approach to their materials as a scholar might have evaluated the work of virtually any other group of historians.
She did not call reflexive incredulity toward the Jefferson-Hemings story a vestige of white supremacy. She didn”t have to.
Note that I am not saying that serious scholars could not disagree with her implication. Some did. Among them were leading lights such as the late Lance Banning, Forrest McDonald, and Alf Mapp. In general, however, the historical profession found her book devastating “ not of Jefferson, but of the Malone/Peterson approach.
Among those who resist the idea that Jefferson fathered slave children are some of his white descendants. Seldom has the question been publicly discussed that one or more of them did not turn up to dispute what came to be seen as the Gordon-Reed thesis.
And then, the year after the book’s publication, Nature published results of genetic testing dispositively proving that at least one Hemings descendant descended from a male Jefferson. It also proved that at least one family’s oral history of being descended from Jefferson was almost certainly mistaken. Ha! Said the opponents, this didn”t prove that Jefferson sired children by Hemings. It only proved that oral history couldn”t be trusted! Some of them trotted out other Jefferson males as likely candidates for the role of father of Hemings offspring.
They were right that the DNA evidence did not perfectly prove that the black families” oral history of being descended from Jefferson must be true. I note, however, that there is more proof that Jefferson is the ancestor of certain black Americans now living than there is that the person I understand to have been my great-grandfather had anything to do with events leading to me.
There is, in fact, virtually no one living or in history, virtually no one, for whose ancestry we have more evidence than we do for the descendants of Eston Hemings, whom some now call Eston Hemings Jefferson. Certainly not John Kennedy. Or Julius Caesar. Or Queen Elizabeth I. Quite probably not you.
Most leading Jefferson scholars fell into line. Joseph Ellis, who had denied that Jefferson had fathered Hemings offspring, now hopped on board. Andrew Burstein, who admitted to his “love” for Jefferson, wrote an entire book on the subject.
Gordon-Reed’s new book on the Hemings family has won two of this year’s major prizes, the National Book Award and the Pulitzer. As the review in the latest issue of The Journal of Southern History aptly notes, there is a growing desperation in the arguments of those who deny that Jefferson does indeed have black descendants.
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Why are they so desperate? And come to think of it, why did Gordon-Reed’s book win these major prizes? As the same review notes, this new Gordon-Reed tome was in serious need of an editor; it could well have packed more punch into far fewer pages. So, if not the craftsmanship, what makes it so notable? Book prizes, like most publication decisions and awards in the field of history, are highly political. To some extent, they are concerned with rewarding authors of books that contribute to the construction of what one historian/activist called a “usable past.” (Thus, for example, I knew as soon as I saw Gordon Wood’s The Radicalism of the American Revolution in a bookstore that it would win major prizes, and I told my shopping companion so. Certain ideological precincts had an interest in claiming the heretofore conservative Revolution for a left-wing usable past.) For Malone and Peterson, a certain image of Jefferson, that of the Olympian dispenser of democratic truths, “The Sage of Monticello,” had immediate applicability. While a slave-owner, their Jefferson was unhappily so; while a man of the nineteenth century, he is easy to imagine in the twentieth; while an exhorter to violence and proponent of states” rights, he only took those stances in specific circumstances, and his statements of principle are to be found elsewhere.
More recent scholars have dethroned that old marble man. Ellis, in saying that he had changed his mind about the Hemings question, added that he hoped that knowing Jefferson had behaved this way would help persuade senators to acquit Bill Clinton at his impeachment trial. This seemed to be a non sequitur to me, but in Ellis’s mind the two subjects were closely linked.
Having noticed the political goings-on in the historical profession, some members of the white Jefferson family have pointed to an academic cabal intent on tearing Jefferson down for contemporary purposes. If his personal probity is called into question, they say, it becomes that much easier to flout his limited-government principles. Note that Jefferson’s personality and sex life are the prime concerns of contemporary Jefferson scholars. Long gone are the days when attention to his advocacy of peace, limited government, states” rights, and citizen involvement in decision-making lay at the heart of prize-winning books. Gordon-Reed, Burstein, and Ellis are typical of contemporary Jefferson chroniclers.
How might public awareness of Jefferson’s siring slave offspring affect today’s political debates? While scholars long have known that slave-owners, indeed men of the slave-owning class, commonly had sex with slaves, that knowledge seems not to have made much of an impact on the populace at large. If it had, the reasoning goes, perhaps contemporary proposals of compensatory measures would be more popular. So, this fact about Thomas Jefferson and the stories of his slaves” relationships with him certainly could help to make a “usable past” for those with contemporary ideological and political fish to fry.
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Gordon-Reed, from all appearances, is not one of them. She does not say that Jefferson’s relationship with Hemings was tantamount to rape, although she might have. (The Journal of Southern History review, in evaluating the onset of the Hemings relationship, rightly calls Jefferson “creepy.”) Instead, she endeavors to situate the two of them in their environment and to imagine a relationship consistent with everything she knows about them. This, too, marks her as an excellent historian.
How much effect should recognition that Jefferson quite likely behaved this way have? While Jefferson remains a popular personage with Americans today, his political philosophy is essentially defunct. States” rights? Almost entirely local self-government? Highly limited federal spending? Strenuous endeavor to avoid war? No entangling alliances? Anger at federal judicial usurpation? They are nearly as dead as Jefferson’s seemingly comfortable acceptance of the idea that, as a slave-owner, he had a certain droit de seigneur. There’s really not much of a Jefferson legacy to fight over, intensely lamentable though that fact may be.
As I said, I am persuaded. The far more interesting issue, though, is what so many people are so excited about.
]]>The Preamble to the Bill of Rights says, in part, “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added… RESOLVED … that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States ….” (Are you surprised that you have never read this before? That it is not usually included in printed versions of the Constitution? What accounts for that omission, do you think?)
Unsurprisingly, then, the First Amendment begins by saying, “Congress shall make no law.” Why? Because, as stated in its Preamble, the purpose of the Bill of Rights was to ensure that the Federal Government did not abuse its powers. So widely was this understood to be the purpose of the Bill of Rights that in Barron v. Baltimore (1833), Chief Justice John Marshall for a unanimous Supreme Court ruled that the Bill of Rights limited only the powers of the Federal Government, not those of the states. This was the only significant constitutional decision in which Marshall ever ruled against federal authority.
James Madison endeavored in the First Congress to include in Congress’s proposed bill of rights an amendment providing for federal judicial oversight of states” behavior in respect to certain rights. His effort was unavailing. Thus, when “originalist” Antonin Scalia announced that the First Amendment establishes a right to burn a flag enforceable by federal courts against state authorities, he showed exactly how “originalist” he really is. When Randy Barnett took to the pages of The Wall Street Journal last week to state that federal protection of all individual rights against state infringement was part of the original plan of the U.S. Constitution, he revealed how concerned with the consent of the governed he really is.
And when notable gun-rights advocates such as Don Kates and Stephen P. Halbrook argued for the “incorporation” of the Second Amendment into the Due Process Clause “ that is, for right-wing judicial legislation “they demonstrated that, as has been true for most of American history, the Constitution has come to be (in Jefferson’s words) “a thing of wax” waiting to be reshaped by today’s Judicial-Branch majority into the opposite of what it “meant” yesterday.
As Raoul Berger showed years ago in his The Fourteenth Amendment and the Bill of Rights (for anyone who cared to know), the argument that the Due Process Clause was intended to work this thorough revolution in the American order is entirely bogus. But judicial activists, nay, anti-constitutionalists on the right are no slower to deploy it than their mirror images on the Left to win through the federal judiciary what they desire: victories for their policies that they have been unable to achieve at the ballot box.
Concurring in the judgement of his three-judge panel, Judge Ronald M. Gould wrote that of course the Second Amendment did not empower individuals to keep nuclear weapons in their homes. The incorporated Second Amendment gun right, then, would be subject to “reasonable” regulation.
This is what the Incorporation Doctrine has given us: in place of reservation of these areas of law to state governments for regulation via legislative elections, we get seizure of control over them by unelected, unaccountable, politically connected lawyers (that is, federal judges) who purport to substitute “reason” for the (one infers) “unreasonable” regulations crafted by elected officials. One does not have to be a gun banner to lament Nordyke v. King “ and all its cousins.
The Incorporation Doctrine sounds benign enough. Who could oppose having federal courts stand up for individuals” rights, even if their doing so does violate the structure of the Constitution? Historically, however, it has not turned out so well.
It was under the cover of the Incorporation Doctrine that federal courts recently invented a right of child rapists not to face the ultimate penalty for their crimes. It was under the cover of the Incorporation Doctrine, indeed, that a Supreme Court majority for several years banned capital punishment altogether.
It was under the cover of the Incorporation Doctrine that the Supreme Court eliminated state prohibitions of various types of pornography. The Incorporation Doctrine also underlies the Court-created ban on prayer, even on moments of silence, in public schools. The Incorporation Doctrine has allowed federal courts to invent rights to burn flags, ban invocations at high school graduations, and establish essentially a national code of “acceptable” punishments.
Whatever one thinks of these various policy departures (and many of them actually tickle my fancy), the bottom line is that every time a court invented one of them, or legions of other Incorporation Doctrine policies, it did so despite what the Constitution actually meant. Which means that to the extent that we live under the Incorporation Doctrine, we live under a judicial dictatorship.
]]>And speak she did. Ginsburg held forth on the relationship between the Supreme Court and foreign courts, specifically as it comes to citation of foreign decisions by the justices and to the Supreme Court’s influence on foreign courts. In the former area, she said that, “I frankly don”t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law.”
The chief objection has been to reliance on foreign reasoning in applying the United States Constitution. Here, figures such as Justice Ginsburg have been notably two-faced about reliance on such law. As Justice Scalia noted in his Roper v. Simmons (2005) dissent, the Court majority ignores the overwhelming weight of foreigners” rejection of an exclusionary rule, has no interest in the fact that only France rivals the US in the strictness of its church-state separation, and insists that the USA continue to be one of only a handful of countries where abortion is legal to the point of viability. In addition, he adds, the American prohibition on double jeopardy is virtually unique.
Does Ginsburg propose to bring America into the mainstream of jurisprudence by reference to foreign judges” opinions? No. Rather, as has become fashionable among post-Brennan-era American legal thinkers, she simply wants to cast a wider net for any support in anyone’s thinking for whichever predetermined outcome she has in mind at the moment. She has no more intention actually to be guided by foreign courts” reasoning than to be guided by anyone else’s.
Ginsburg said at Ohio State that it once was commonplace in American courts to refer to English precedents. She is right about that. Where she errs, however, is in implying that once American judges felt free to roam at large in search of justification for their legislative behavior. When 18th- and 19th-century American judges referred to common-law precedents, they did so because those were the precedents that American Revolutionaries had in mind when they used technical legal language like “high crimes and misdemeanors” or “cruel and unusual punishments” in America’s basic legal documents. They did so, in other words, precisely to avoid acting as legislators possessed of unbounded discretion. They did so to divine the meaning of the words their superiors”when it comes to the Constitution, the Ratifiers”had in mind.
Reading the bilge produced by the Ginsburgs of the world, one begins to wonder whether they are perpetually intending to mislead, whether they are so untiringly tyrannical that they endeavor from morning to night to undercut the intended system of constitutional limitations on officials” power. I think that the answer is rather simpler than that: mediocrities such as she simply know no better. Like William Brennan, their beau ideal of a judge, they believe that imposing their will is their mission in life. They equate it with the general good.
Ironically, Justice Ginsburg in the same speech gave a rationalization for wide-ranging judicial policy-making power. The Holocaust showed that some such mechanism of undemocratic input into the political process is necessary, she said, because it proved that elections sometimes yield ghastly outcomes.
If we accept her point, the solution is not for judges to hide authoritarian behavior behind the lie that the republican U.S. Constitution demands the outcomes upon which they have lighted. Rather, it is to throw over republican government altogether in favor of something avowedly unrepublican. She will never dare to say that, however, because she knows that few would consent. Instead, she will continue on the dishonest path she long ago chose.
It is an egotist’s path, obviously. Just consider the self-regard implicit in the judicial enterprise, as reflected in Justice Ginsburg. At Ohio State, she lamented that her colleagues” opposition to reliance on foreign precedents undercut the Supreme Court’s influence abroad. Why, Canada’s top court has more influence, she lamented. Surely the justices need to rule in such a way as to earn themselves more influence in Sarajevo or Quito, Hanoi or Berlin.
The U.S. Constitution is supposed to be the supreme law of the land. In what sense? In the sense in which the law-givers”the Ratifiers”understood it. If we do not insist that officials read it as the Ratifiers did, we leave them free to do as they wish. Casting her gaze across the precedents of every country in the world over all of recorded time, Ruth Bader Ginsburg can discover some precedent somewhere for anything she wants to do. And that is the business she is in.
]]>Two years ago, Newsweek editor Jon Meacham published American Gospel: God, the Founding Fathers, and the Making of a Nation. There, as in his public appearances and journalism since, Meacham argued that the United States were founded on a Madisonian vision of secular government.
Meacham of course did not blaze any new trail making that argument. In fact, since the Supreme Court’s decision in Everson v. Board of Education of Ewing Township (1947), Americans have lived under a system in which local and state ordinances recognizing the traditional Christianity of their culture are apt to be invalidated by federal courts. Usually, the decisions striking such ordinances down come wrapped in opinions purporting to instruct the hoi polloi in the error of our ways.
Thus, the pre-game prayers we said before we went out under the Friday night lights in the little Texas town where I graduated from high school in 1981 supposedly now would be unconstitutional. Ditto the invocation at the annual baccalaureate exercises, led by local ministers on a rotating basis. The same holds for traditional Christian imagery in long-standing city seals, Christian symbols on public land, and myriad other nods to the base of most Americans” conception of the cosmos.
Just in time for the Easter holiday, Meacham gives over his magazine’s cover and prime pages to a story under the title “The Decline and Fall of Christian America.” Here, Meacham explains that recently, Christianity’s political and cultural influence in America has been waning. Now, he notes, there has been a significant decline in the proportion of Americans claiming to be Christian: from 86% to 76% in the last 19 years. He adjudges this “good for our political culture.”
Claiming high secular authority, Meacham says that political culture is “as the American Founders saw, … complex and charged enough without attempting to compel or coerce religious belief or observance.” Reading this assertion, my antennae pricked up. Which Founders? Compel how? What does he mean by “religious belief or observance”?
People familiar with the Revolution and Early Republic”the period when the American tradition of writing constitutions was born”can guess easily enough, even without prior familiarity with Meacham’s argument, which figures he has in mind: perhaps Tom Paine, possibly Benjamin Franklin, and certainly James Madison and Thomas Jefferson. Sure enough: there they are, two pages later:
By the time of the American Founding, men like Jefferson and Madison saw the virtue in guaranteeing liberty of conscience, and one of the young republic’s signal achievements was to create a context in which religion and politics mixed but church and state did not.
Hmm. What does Meacham mean by that? The half-educated (think of Justice Hugo Black writing for the Court in Everson) might conjure up a mental image of Jefferson with Latin, Greek, French, and English editions of the Bible, carefully excising anything his to-this-purpose-feeble mind could not explain. This, he might think, was The Founding Fathers” Attitude Toward Church and State.
Well, yes, it was Jefferson’s attitude”in private. For some reason, Jefferson kept his biblical bowdlerization to himself. Only after his death did his favorite grandson, Thomas Jefferson Randolph, publicize Jefferson’s account of Christ’s life. And what was the reason that Jefferson did not publicize his hostility to the Bible far and wide? As he explained to an acquaintance in another context, Jefferson had several irons in the political fire, and to make himself obnoxious on a question about which he was not going to persuade his compatriots would only defeat his other efforts. Discretion, in other words, was the better part of valor: Jefferson knew that his fellow Virginians would have drummed him out of political life if he had told them what he thought.
Besides which, as then-Justice William Rehnquist noted in dissent in the Wallace v. Jaffree “moment of silence” decision, Jefferson had nothing to do with drafting the federal Bill of Rights. Indeed, he didn”t help write his own state’s declaration of rights or constitution, not to mention the federal Constitution, either. It thus is difficult to see what his private conception of the proper relationship between church and state, Christianity and government, has to do with the U.S. Constitution.
Yet, on the other hand, James Madison favored the project of abolishing legislation to govern the human mind. He, unlike Jefferson, played a significant role in drafting not only Article XVI of the Virginia Declaration of Rights (the church-state article), but also the U.S. Constitution and the federal Bill of Rights. Surely if he favored secular government, as he certainly did, that proves that the Founding bequeathed us a system in which Anthony Kennedy and Ruth Ginsburg are within their rights, indeed doing their duty, when they say that high school students in, say, Belton, Texas cannot constitutionally be led in the Lord’s Prayer by their coach after a football game.
Well, no. For James Madison’s private opinions, even his public positions, are not equivalent to any particular provision of the U.S. Constitution. (This is a good thing, since Madison was about as consistent as the weather in a Texas spring.) In fact, one of the most common errors in scholarship about the Constitution is to elevate Madison’s every private jotting and utterance to the status of the Constitution itself. Like Jefferson, Madison knew that his private preferences were unpopular in Virginia. It is to his public position that we ought to look, and then only when it was consistent with that of the body that gave a particular constitutional text effect.
Madison said in the Philadelphia Convention that wrote the Constitution and, and this is what counts, in the ratification campaign thereafter that a bill of rights was unnecessary. In fact, he said that amendments along that line could be dangerous.
But Madison did not reckon with public opinion, specifically with Baptists” opinion, in his home community, Piedmont Orange County, Virginia. His neighbors (read: the local electorate) insisted there be a religious liberty amendment, because they feared a revivification of the colonial Episcopalian establishment if there wasn”t. Besides the Baptists, Madison’s elite political friends Edmund Randolph, Jefferson, and George Mason all insisted that there must be a bill of rights. That’s why Madison promised that he would propose amendments in the first federal Congress: he disliked the idea, but popular and elite pressure in Virginia squeezed grudging support for it out of him. Having promised to sponsor amendments, Madison was narrowly elected to the first U.S. House after being rejected as too nationalist”too much in favor of centralization”in Virginia’s election for the first Senate.
Madison did not believe that the First Amendment banned state actions such as having local ministers give invocations at public-school events. Meacham is right to say that he and Jefferson favored such a prohibition, but he is wrong to imply that anyone in the Founding era wrote one into federal law.
The supposed location of this prohibition in the Constitution is the Establishment Clause of the First Amendment. The First Amendment’s Establishment Clause, however, says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (emphasis added), and it means precisely that: that Congress shall make no such law. Far from fortuitously, this language was intentionally about Congress, and not the state legislatures. As the Preamble to the Bill of Rights shows, the entire purpose of the Bill of Rights was further to delineate the limits on federal authority, because Antifederalists insisted that the unamended Constitution had not made those limits clear enough. The phrase “respecting an establishment of” was chose instead of “establishing” because the former could be read as banning congressional disestablishment of states” established churches, as well as congressional attempts to establish a national church.
Why, you might ask, would James Madison, the chief author of the Bill of Rights, have omitted a provision allowing the federal government to police states” policy-making in this area? After all, as we”ve seen, he favored secular government, and the unamended Constitution already included some provisions”most notably but not only the Contracts Clause”empowering federal officials to police state behavior.
The answer is that he tried. The First Congress’s Bill of Rights included twelve proposed amendments, of which ten were ratified in 1791 and one was ratified in 1992. It did not include the one that Madison ever after insisted had been the most important one: his proposed amendment stating that “No state shall violate the equal rights of conscience….”
Madison had attempted to use the Philadelphia Convention to create a national government, and he had been disappointed. He then vowed to sponsor amendments clarifying the limits of federal power, but this characteristic subterfuge yielded a proposed amendment to empower federal officials to intervene to regulate the states” religion policies. Pace Meacham, Madison not only failed to write a federal ban on state religion legislation into the Constitution, but he could not even get it out of the House.
Meacham notes that Christians have endeavored sporadically since 1962 to overturn the Supreme Court’s opinion that year banning prayer in public schools. He omits that so unpopular was that decision in its day that all but one governor insisted it should be countermanded. The Constitution makes amendment difficult, except in the case of amendment via judicial legislation; that kind of amendment, which is far the most common kind, is virtually impossible to correct. The Supreme Court can foist off upon us a decision such as the School Prayer Decision, with which Americans never agreed and to which they never consented, and there is essentially nothing that can be done about it.
Yes, our culture is becoming less Christian. I attribute this in large part to the success of the Supreme Court in wiping Christianity out of our public life. The Court’s campaign to do so has been aided and abetted by other significant actors in American intellectual life, such as the editor of Newsweek. When people like Jon Meacham tell us that the attenuation of the Christian element in our culture is simply a trend, perhaps like the weather, and that it is in consonance with what the sainted Founders wanted, who can contradict them? Who knows any better? It is in the interest of the government to aid in divinizing the government, including its creators. The cult of Madison and Pals may well replace the old one, Christianity, in Americans” affection. If it does so, that event will mark the success of a long-standing propaganda campaign by figures such as Jon Meacham and Hugo Black, Anthony Kennedy and Ruth Ginsburg.
]]>It might have, but it didn”t. The electoral defeat of the Republican Party in 2008, after all, meant the replacement of a party that at least talks the originalist talk by one that holds originalism (also known as “law”) in contempt. Already in the first weeks of the Barack Obama administration, Democrats in Congress and in the Executive Branch have taken several steps along the road of absolute constitutional nihilism. Since the U.S. Constitution stands for federalism, republicanism, and limited government, their program is essentially to ignore it. Given majority power, the Democratic Party feels entitled to adopt whatever initiatives come to mind, and those initiatives tend toward further centralization, empowerment of unelected officials, and statism.
Consider the “Sanford Amendment“ in the recent stimulus bill. Governor Mark Sanford of South Carolina said that he would reject some of the funds made available to the Palmetto State under that bill. The alternative would entail permanent and undesirable alteration of his state’s unemployment compensation policy, Sanford explained, and so he had to turn down the money.
Democrats in the House of Representatives therefore added this language to the bill: “If funds provided to any State in any division of this Act are not accepted for use by the Governor, then acceptance by the State legislature, by means of the adoption of a concurrent resolution, shall be sufficient to provide funding to such State.” Note that what Congress purports to do here is to reassign an executive function of state government from the governor to the legislature. Where did Congress get authority to amend a state’s constitution in this way? To ask the question is to answer it. The Democrats” attitude is that such niceties are irrelevant in the face of the congressional majority’s urge to spend money.
The Obama administration also has decided to reassign responsibility for the decennial census from the Commerce Department to the White House. This move presages the use of “enhanced statistical techniques” to inflate the “count” in minority-rich (read: heavily Democratic) inner cities. While the Constitution says that there will be an “actual enumeration” every ten years (in place of the guesstimate made by the Philadelphia Convention in allocating representatives in the First Congress), Democrats have long held that the very idea of an “actual enumeration” is passé. Soon enough, then, apportionment of the House of Representatives, and of much federal spending besides, will be on the basis of completely unbiased, neutrally derived, never manipulated statistical analyses. We can trust the statisticians” fairness, because statistics never lie.
As if that were not enough, Congress is now on the verge of adopting legislation that will give the District of Columbia a voting member of the House of Representatives. The Constitution says that “the people of the several States” will elect representatives, and the District of Columbia is not a state, but never mind: any neutral application of republican principle leads to the conclusion that D.C. should have a voting member anyway. Democrats insist that partisanship has nothing to do with their thinking. Oh, and by the way, Obama carried D.C. with 93 percent of the vote. Perhaps then, Democrats will be repaid for their principled stand by a permanent 1-vote augmentation of their bloc in the House. (Note that Republicans long allowed territorial delegates and the D.C. delegate to vote in committees, including the Committee of the Whole. As usual, the Democrats” unconstitutional initiative has Republican antecedents.)
Democrats today led the House in considering a measure that would allow federal judges to reduce the outstanding principal on home mortgages. Few initiatives could more clearly recall the state legislation of the 1770s and “80s that led Alexander Hamilton, James Madison, George Washington, and other Federalists to lament that they were witnessing “the crisis of republican government.” Soon, Madison feared, the propertyless would simply dispossess the propertied. That is why Article I, Section 10 of the Constitution includes the Contracts Clause, which bars state legislative initiatives impairing the obligation of contracts.
But, an advocate of this measure might object, there is no analogous provision limiting the power of Congress. Doesn”t this mean that the Constitution was supposed to shift the power to take creditors” money and give it to debtors from the state legislatures to Congress? In a word, no. The underlying principle of the U.S. Constitution was supposed to be that Congress would have only the powers (as Framer and Ratifier Edmund Randolph put it) “expressly delegated.” By denying the power to the states without granting it to Congress, the people through the Constitution were saying that no institution of government would have this power.
Of course, to give this power to federal judges is also to violate the separation of powers, as the function of deciding which party to a mortgage should bear its cost surely is not judicial in nature. What we have here is a frontal assault on private property wrapped in a new attack on the republican principle in the federal system.
President Obama in his recent address to a joint session of Congress called for “reform” of the medical “system” in the United States. Since the early 1960s, several prominent figures on the left have pointed to the Ninth Amendment“”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people””in support of federal negation of state policies restricting certain types of sexual and anti-sexual behavior. They overlooked in doing this that the Ninth Amendment’s point was to limit the power of the Federal Government, not to give federal judges the veto over state laws that James Madison failed to persuade the Philadelphia Convention to give to Congress.
In other words, the idea that the Ninth Amendment gives people a federal right enforceable against state governments to engage in non-procreative and/or non-marital sexual behavior of various kinds is specious. It seems to me, however, that the right to obtain medical services from whom one will, as well as the right to arrive at a price for medical services in bargaining with one’s physician, are precisely the kinds of behavior traditionally understood to be among the rights of free people in England and, later, America. Although not enumerated, power to infringe on these traditional rights was denied the Federal Government by the Ninth Amendment. In other words, Obama’s health-care proposals anticipate actual violations of the Ninth Amendment. That the inconsistency between their pet provision and their pet program seems to have occurred to no one in legal academia or the Democratic Senate caucus says quite a lot about legal academia and the Democratic Senate caucus.
The Obama administration has barely begun, and yet, on a wide range of issues, the new Democratic era already marks a significant departure from America’s constitutional tradition. Even if you accept that Congress may spend money on anything that comes to mind, and that the secretary of the treasury can decide on his own to print $2.5 trillion (that is, to adopt Zimbabwe as America’s model in matters of economic policy), the first hundred days of Obama-Reid-Pelosi may mark the dawn of something new.
New in America, but old everywhere else. It seems that the Constitution is stone, cold dead, and no one even notices its absence anymore. America, like the Old World countries of 1789, has unlimited government. My unhappy guess is that we will soon see what it is worth.
Kevin R. C. Gutzman is co-author, with Thomas E. Woods Jr., of Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush.
Photo: Crown Forum
]]>Vindicating Lincoln: Defending the Politics of Our Greatest President, Thomas L. Krannawitter, Roman & Littlefield (2008), 376 pages
Hamilton’s Curse: How Jefferson’s Arch Enemy Betrayed the American Revolution”and What It Means for Americans Today, Thomas DiLorenzo, Crown Forum (2008), 256 pages.
Christianity made an epochal change by elevating ordinary people to spiritual equality with the social, political, and economic elite. In the old religion of Greece and Rome, the gods were beautiful, immortal supermen. Roman emperors, the closest thing to gods on earth, often received deification at death; their temporal greatness made them indistinguishable from the divine, and stationed well above the hoi polloi.
Not only did Christianity say that mundane man could ascend to the emperor’s level, but Jesus counseled that He was in “the least of these.” Among the Orthodox, St. Symeon the New Theologian went so far as to advise Christians to steer clear of political authority. The exercise of power over other men required politicians to act in un-Christian ways, whether by making war, by executing malefactors, or otherwise. Rather than bear such a burden, he said, better to avoid it.
The transition to Christianity also radically affected the ancient tradition of biography. Works such as those of Arrian and Plutarch, Suetonius and Tacitus, which had sought instruction and/or entertainment in the lives of the great, yielded place to a Christian tradition of hagiography. From St. Athanasius” Life of St. Anthony on, the struggle to achieve Christ-centeredness, the saints” working out of their own salvation, took pride of place. Monks became popular heroes.
In the medieval period, yes, lives of great rulers did occasionally appear, but most were marked by extensive attention to the ruler’s Christianity. A shift back toward the old emphasis came in the Renaissance, which marked a rebirth of heroic ideals of ancient paganism. Perhaps the first modern biographer was the 18th-century francophone man of letters Jean-Jacques Rousseau, whose own autobiography featured neither inspiring greatness nor estimable asceticism. Rousseau really was in it for himself.
This degradation of the biographical form reflected a change in the way that a post-Christian era aborning, the self-styled Enlightenment, understood man’s relationship to history and the cosmos. The ordinary individual mattered as much as anything, Rousseau believed, and no individual more than he.
Ultimately, the idea that great men were no more significant than small gave way to the idea that great men are not really great at all. One finds perhaps the most passionate statement of this idea in the final section of Tolstoy’s War and Peace. There, the great man by birth, Tolstoy, descendant of people just below the Romanovs in Russian society and owner of hundreds of serfs, elaborates upon his contention that the individual great man matters not at all. France in Napoleon I’s day had to attack Russia, he asserts, and the emperor was merely swept along by history.
Today, biography runs the gamut from lives of great men to semi-fictional autobiographies of purported ex-addicts. Lives of celebrities attract extensive attention, and the best-seller lists are full of titles about long-dead politicians and statesmen.
One powerful current of American biographical writing is the extended eulogy to a particular political figure. Critics of the surge of popularity enjoyed by such works over the past decade have dubbed it “Founders Chic.” Where some authors once upon a time promised “warts and all” accounts of notorious fellows, books with titles like Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America now earn their authors substantial royalties from the worshipful by demonstrating that warts did not exist in days gone by; in fact, long-dead statesmen had only the most politically correct current opinions!
Leading scholars of the American Revolution who came of intellectual age during the Vietnam War and Watergate, generally disdain this approach, and in fact the efflorescence of American Revolution studies over the past 40 years is of a quality unseen in the study of any other historical topic, anywhere, ever. Yet, potboilers by authors like David McCullough draw far more popular attention.
Close behind leading figures of the Revolution in book-buyers” esteem are other American presidents. The chief attractions are Franklin Roosevelt, Andrew Jackson, John Kennedy, Ronald Reagan, and, in first place by a large margin, Abraham Lincoln. Accounts of presidential “greatness” seem always to be in season, demand for them insatiable. Thus, the January 4 New York Times Hardback Nonfiction Best-Seller List (extended) included a book about Jackson, four books about Barrack Obama, and one title about once and future presidential aspirant Mike Huckabee, while the Paperback list for the same day included a Lincoln book, three Obama books, and a Roosevelt tome.
One might infer that the availability of such a large number of works meant that at least there was a range of opinions on these people. But one would be wrong. The biographical approach popular with book-buyers starts at flattering and extends to vindication. With the exception of their ongoing interest in Richard Nixon, Americans want to read positive accounts of bygone presidents.
It seems not to matter that the people of whom they read flattering accounts often loathed each other, personally and politically, in their day. History “buffs” of 2009 admire Jefferson and Adams, Washington and Jackson, James Madison and Abraham Lincoln. When one said things that disparaged another (as, for example, when it comes to Jefferson’s appraisal of President Adams or of General Jackson, or Lincoln’s estimation of President Jefferson), no problem!
The ancient historian Plutarch arranged his magnum opus, Parallel Lives of the Noble Greeks and Romans, in pairs intended to present pro and con portraits of people displaying mirror-image characters. Plutarch hoped that his readers could learn something of how to behave in seeing the wages of eminent men’s (mis)behavior. American readers, however, seem to have adopted an attitude of “I just like to know what they did. They were so great!”
Perhaps nowhere is the tendency to lick one’s subject’s boots more in evidence than in relation to Abraham Lincoln. New Orleans may have decided that it was inappropriate for a public high school to be named for slave-master George Washington, John Adams deservedly earns criticism for the Sedition Act, and Franklin Roosevelt unthinkingly carried a cigarette in public, but Abraham Lincoln is not to be criticized in any way.
Thus, in relation to the Constitution, one adulatory account called Lincoln a good dictator. In explaining his frequent racist statements, spread over a long period of time, another historian”one recently given the National Humanities Medal by President George W. Bush”said that “This is how honest people lie.”
To dare to dispute Lincoln’s view of the Constitution may earn one the sobriquet “neo-Confederate.” A recent account of Lincoln’s most famous speech is entitled The Gettysburg Gospel. One could go on. Many people make mountains of money writing adoringly of Abraham Lincoln.
There have been a few critical accounts of Lincoln by hardy souls”certainly not untenured professors”in recent years. Charles Adams and, most notably, Thomas J. DiLorenzo have attracted attention with substantial criticisms. In general, DiLorenzo’s best-selling Lincoln books are mirror images of the run-of-the-mill; for example, where leading lights of Lincoln scholarship believe that Lincoln can do no wrong, DiLorenzo insists that American slavery would have ended peacefully soon after 1861 even in the absence of Lincoln’s efforts.
I know of no reason to believe that, and good reason to disbelieve it. American slaves reached their highest value ever in 1860. They had been appreciating for years. Their value helps to explain southern touchiness about the future of slavery in the Union.
But that does not mean that DiLorenzo’s criticisms are all ill-founded. And what DiLorenzo calls “the Lincoln cult,” centered in Claremont, California, among the students and other acolytes of Harry V. Jaffa, has fired back.
Their response takes the form of Thomas L. Krannawitter’s Vindicating Lincoln: Defending the Politics of Our Greatest President. The title is self-explanatory. Seemingly the sole shortcoming of Lincoln’s statesmanship, for Krannawitter, was his limited understanding of the economic effects of the American System.
Skeptics of the Lincoln myth are summarily dismissed. On pages 160-61, I learn that I am a “secessionist,” as if I were taking part in a rebellion of some kind. And in a fit of Jaffa-like name-calling, Krannawitter makes Thomas E. Woods Jr. a “historicist.” Woods may be a lot of things, but this long-time associate editor of Latin Mass magazine does not think that all truth is time-bound. (A better description of Woods might be “more Catholic than the pope”!)
The tack that Krannawitter intends to take is made evident by a careful perusal of his endnotes. While he says quite a lot about the “Founders” and the “Founding,” there is no mention of the most obvious scholarly source on the ratification debates in the several states. In other words, Krannawitter holds forth for 200-odd pages without having read the chief sources.
So why doesn”t Krannawitter pepper his book with references to the chief documentary source on ratification of the Constitution? Because he relies on Lincoln’s version of history instead. Lincoln’s account, alas, was basically cribbed from John Marshall’s partisan opinion in McCulloch v. Maryland (1819), which said that the Constitution was made not by the states but by one American people, despite what the Constitution itself said in Article VII. Lincoln, of course, deduced from Marshall’s false account that secession was impossible, despite what a committee of which Marshall was a member had told the Virginia Ratification Convention in 1788.
The odd thing about books with “vindication” in their titles, of course, is that they are not scholarship. They seem rather more to resemble the products of political parties stumping for their candidates, or of religious bodies defending their dogmas. Were there not so great a gap in learning between Krannawitter and Origen, I might say Vindicating Lincoln is of the same genre as Contra Celsum, or perhaps St. John of Damascus’s treatise On the Divine Images.
Mencken called the Gettysburg speech “genuinely stupendous.” But then reminds us, “[L]et us not forget that it is poetry, not logic; beauty, not sense.
Think of the argument in it. Put it into the cold words of everyday. The doctrine is simply this: that the Union soldiers who died at Gettysburg sacrificed their lives to the cause of self-determination”that government of the people by the people, for the people, should not perish from the earth. It is difficult to imagine anything more untrue. The Union solders in the battle actually fought against self-determination; it was the Confederates who fought for the right of their people to govern themselves.
All this raises the question why the Church of Lincoln defends its leader and his myth so zealously? The answer, of course, is that the state cult of Lincoln underlies much of what nowadays is commonly called “America’s purpose.”
We heard quite a lot at the time of the fall of the Berlin Wall about what America’s purpose would thenceforth be. Alas, since the Lincolnian rededication of the USA in the “new birth of freedom,” Americans have gone in for the idea that their country has a “purpose.” Moreover, this new “purpose” has cost the average American dear. It might almost be said to be America’s special curse. Imagine someone debating Sweden’s purpose, say, or India’s. Since “His truth … march[ed] on,” in Mrs. Howe’s words, again and again Americans have been roused to momentous sacrifice and suffering in the name of their purpose.
In 1898, that purpose was to relieve the suffering subjects of imperial Spain. In 1916, it was to make the world safe for democracy. In the Cold War, it was somehow to stand as a “shining city on a hill,” a secular nirvana to which all could repair. George W. Bush says that he is going to eliminate evil from the world.
With confidence in their purpose, Americans know that it is moral for them to intervene anywhere. Who could object, indeed, to bringing the vote to Mesopotamia or to admitting girls to government schools in Afghanistan? Whatever the real reason behind it, the U.S. Government’s latest assertion abroad will almost invariably be covered in some way with a patina of “purpose.”
America’s special purpose can be appreciated best, Krannawitter and his ilk insist, through study of the career of Abraham Lincoln. Distasteful elements in his life”frequent use of the N-word, for example”mark Lincoln simply as the pragmatic idealist who had to play the racist to beguile the racists around him. He didn”t really want war. He was right that God was responsible for the war’s severity. Etc.
Apparently the Lincoln church had its own Vatican I, and kept the notes secret.
It is not only followers of the Great Men in American history who ascribe god-like powers to them, however. Some of their opponents do precisely the same thing. Consider, for example, the latest work of one of Krannawitter’s chief targets, Thomas DiLorenzo.
DiLorenzo did a service by exposing the slavish attitude of the Lincoln industry. Although some of his assertions, such as that concerning the likely fate of slavery in the absence of the Civil War, strike me as essentially groundless, it is a useful exercise to consider so lauded a figure from a critical perspective.
The latest target of DiLorenzo’s ire is Lincoln’s precursor, Alexander Hamilton. The first secretary of the treasury, Hamilton can be seen as the fountainhead of virtually all of the ideas that Lincoln ultimately brought to fruition: corporate welfare, use of the military against state self-determination, censorship of political opponents, protective tariffs, government funny money, etc. The path from Hamilton to Marshall to Lincoln is a straight line.
Which is not to say that Hamilton is responsible for all statism in America since 1786. Reading DiLorenzo’s Hamilton’s Curse: How Jefferson’s Archenemy Betrayed the American Revolution”and What it Means for Americans Today, one repeatedly gags at the bit as DiLorenzo tries to whip him around the track of Hamilton blame one more time. Yes, Hamilton’s idolators at the New-York Historical Society did entitle their 2004 exhibition “Alexander Hamilton: The Man Who Made Modern America,” but their hyper-exaggeration should not inspire similar overstatement from Hamilton’s detractors.
Can we really blame Hamilton for the Federal Reserve? Is it fair to refer to the Second Bank of the United States, which Congress chartered at President James Madison’s request a dozen years after Hamilton’s death, as “Hamilton’s bank”? In sum, is “credit” for the “National Greatness Conservatism“ of Bill Kristol and David Brooks properly laid at Hamilton’s door?
We do not know whether Hamilton would have been a neo-Jacobin in 2009. Yes, he did say that the problem in American politics for the foreseeable future would be that the states were too powerful in relation to the Federal Government, but that was 200+ years ago. It is not historical to make of Hamilton an all-purpose anti-freedom symbol, just because he stood for a far stronger government than the Articles of Confederation and against constitutional limitations on federal power in his own day.
DiLorenzo’s evaluation of Hamilton is highly overheated. Just as his evaluation of Lincoln was. Likely this is because he does not trust his reader to weigh the mixed, but finally negative, records of the men about whom he writes. The result, however, is to weaken his own case against promoters of the American “purpose.” Extremism in defense of liberty may be no vice, but reasoned explication is far more persuasive. Mature American readers might hope for something a bit more balanced than a saint’s life or a standard-issue Nixon biography. Even if the market rewards authors such as Krannawitter and DiLorenzo.
]]>My question: Is the study of logic a relic of a bygone era? “Post hoc, ergo propter hoc,” anyone? The NR reviewer’s and Prof. Jensen’s assumption is that if unemployment was at a certain level in 1933, if the New Deal was instituted between 1933 and 1936, and if unemployment was lower in 1936 than in 1933, then the New Deal reduced the unemployment rate.
What reason is there to believe their assumption? Does it make sense to assume that pulling money out of savings for the government to spend actually improved the situation? Might not one more reasonably conclude that the two-year duration of the typical American economic recession had elapsed between 1933 and 1936?
That seems likely. Neither author under consideration here provides any reason to doubt it.
I concede that it is possible that in forcibly reallocating money from private use to the Federal Government’s preferred, by definition economically sub-optimal, use, the government reduced short-term unemployment. By reducing investment, however, it also certainly reduced long-run well-being. But who cares? After all, as Keynes said, “In the long run, we”ll all be dead.” If long-run well-being is reduced, that’s posterity’s problem.
Hello, posterity.
Jensen and the NR reviewer made another pervasive American assumption as well: that where there is an economic problem, there must be a government solution. After all, the U.S. Constitution itself was born out of the belief that economic difficulty associated with the American Revolution must be the fault of an inadequate federal government. Those who said in 1787-89 that those problems were the natural fallout of a grueling war fought on American soil against the greatest military power received scant hearing for their argument among the political elite.
People make this assumption all the time even now. Thus, for example, if American automakers cannot compete with foreign competitors for American custom, it must be because government policy needs to be altered. Federal spending, tariffs, taxes, or subsidies must be the solution. This faith in government says essentially that every problem, be it illegitimacy, abortion, poverty, ignorance, unemployment, race prejudice, or even weather patterns has a government solution.
While I”m on the subject of that FDR doorstop, let me also recall to mind one of my favorite historical observations. As the story goes, when Nixon aide Henry Kissinger asked Chinese statesman Zhou En-lai in 1972 what he thought of the French Revolution, Mr. Zhou replied, “It is too soon to tell.”
Assuming that the story is not apocryphal, Zhou was a very wise student of history. What he meant was that an event so significant as the French Revolution hadn”t played out in all of its ramifications yet by 1972.
We should bear this in mind when weighing the merits of American statesmen. So, for example, Richard Nixon’s de-linking of the dollar from gold, and seizure of the power to print money at will, empowered the Federal Reserve to create the economic problem of today.
To take another example, oh, I don”t know, at random, we cannot evaluate Franklin Roosevelt’s presidency validly until the coming collapse of the Social Security system has occurred. Only after the $37 Trillion unfunded Social Security obligation proves politically impossible to meet and the consequences of instituting Social Security are finally felt will we know what Roosevelt was worth.
One might add that the constitutional Revolution of 1937, in which the Supreme Court at Roosevelt’s urging embarked on a course of not finding a single congressional statute unconstitutional for 58 years, also has yet to play out. The era of Big Government weighs upon us, but the final implications of that development are not yet in sight.
Similarly, we cannot judge James K. Polk until we see the ultimate effects of the Mexican Cession, we cannot rank LBJ until we have felt the full effects of 1960s immigration policy, and Ronald Reagan’s legacy was incomplete before his Bush creatures gave us the Iraq War, the Medicare prescription drug benefit, and David Souter. It takes time to say what a statesman or political event means. As my Medieval France professor, Janet Meisel, put it in 1984, “Anything since Agincourt is current events.”
]]>For Republicans, this has been sacrilege. And a threat. As William Kristol famously explained of the Clinton Administration’s effort in this line, a new federal entitlement to medical care would create a vast new constituency for the Democratic Party. He counseled that it must be defeated at all costs, lest the Republicans remain in the congressional minority for another generation.
Sometimes, Republicans explained their hostility to socialized medicine economically: Government control would mean higher prices and lower quality. Sometimes, they explained it in terms of inefficiency”recall Arlen Specter’s flow chart of Hillary Care. And sometimes, the Republican opposition was couched in constitutional terms: “We can”t do this,” they said, “because there’s nothing in the Constitution that says we can.”
Democrats insist that this last argument is really just a mask for class interests. Republicans, they say, don”t really care about the Constitution, which even the rubes know hasn”t bound us since the 1930s (at least) anyway.
Comes now the team of George W. Bush, Ben Bernanke, and Henry Paulson to prove once and for all that at least in the case of New York and New England Republicans (as an adopted Texan, I insist that the Bushes are from Connecticut), the cynics are right. It is about class interest.
How do we know? Because George W. Bush and Company have pulled out all the stops for the Billionaire Bailout. They have no problem whatsoever nationalizing liability for hundreds of thousands of home mortgages gone sour and passing along the costs to … well, to the same taxpayers as would pay for socialized medicine.
Yes, you might say, but I don”t want the smiling, friendly service I receive at the local post office when I go to the doctor. Oh, really? But you don”t mind that service when you want a loan?
How did we come to have such a mess in the mortgage market in the first place? It results from two of the unconstitutional innovations of the 20th century: the Federal Reserve System and government-spurred mortgages.
Search it thoroughly, and you”ll find nothing in the U.S. Constitution that authorizes the Federal Government to create an institution like the Federal Reserve, let alone to encourage home lending. Yet, no one seems much to care.
In fact, the question is rather an uncomfortable one. Ron Paul recently asked Ben Bernanke where he got constitutional authority to create money out of thin air, and Bernanke said that Congress had delegated to the Fed Congress’s constitutional power to coin money.
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But of course, the Fed doesn”t coin money”it prints paper. And the Constitution doesn”t empower Congress to delegate its powers. (But that’s another battle that supporters of the Constitution lost long ago.)
Why would the Philadelphia Convention have created a government without power to print money? After all, isn”t the power to print money one of the chief elements of sovereignty?
In short, no. Paper was not regarded as money in 1787. There had been experience with paper currency in the Revolution, but this was seen as a stop-gap measure. The typical note said something like “Good for 10 pounds sterling within six months of the end of the war.” It was to be redeemable, in other words, for a metallic commodity.
All thirteen states and Congress printed the stuff”and printed it, and printed it… Just as the American dollar’s value has declined by over four-fifths since the inception of the Federal Reserve System a century ago, so paper currency’s value declined rapidly in the 1770s and “80s. So severe was the inflation that if you wanted to say something was worthless, you might say it was “not worth a Continental” (a congressional “dollar,” that is, meaning a congressional paper dollar).
James Madison listed hyper-inflationary printing of paper money as one factor precipitating “the crisis of republican government.” So badly had Congress and the states performed economically, he said, that their record threatened to disgrace republicanism worldwide.
We need not buy into Madison’s version of Federalism to understand the constitutional consequences of the Revolutionaries” revulsion with paper money. It seems to have been one reason that Madison, unable to prevent the Old Dominion from printing paper money, opted for federal constitutional reform: If he couldn”t defeat paper money men in his home state, he would go around them.
Yet, by the time the Philadelphia Convention met in 1787, Patrick Henry “ Madison’s chief Virginia political adversary “ had joined in a House of Delegates resolution against any future printing of paper money. No one significant objected.
The U.S. Constitution, in Article I, Section 10, bans the states from printing paper money. In Article I, Section 8, it empowers Congress to coin money, but that list of powers says nothing about a power to print paper money. As James Wilson, Pennsylvania’s leading Framer and Federalist spokesman, explained, Congress would have only the powers that were listed; omission of a power to print paper money amounted to a ban on congressional paper.
In other words, the U.S. Constitution meant that neither the states nor the Federal Government would have power to print paper money. But surely that was unreasonable. People must have ignored this decision from the inception of the Federal Government.
No, they didn”t. Martin Van Buren’s administration (1837-41) may be seen as paradigmatic. Van Buren came to office just as a severe recession set in. He was constantly castigated by his Whig opponents for not adopting spend-thrift, constitutionally dubious “solutions” “ protective tariffs, public works, and federal chartering of a new Bank of the United States “ to the problem.
Rather than be seen “doing something” (as George W. supposedly faulted his father for not doing in the face of 1991’s mild recession), Van Buren counseled that the market would work the matter out, and that the government should not add to the problem by favoring a few well-connected rich over the poor.
Van Buren was not alone in this position. Rather, it was Jeffersonian, then Jacksonian, dogma virtually from the beginning of the Jeffersonian Republican Party in 1792 until the New Deal of 1933.
For Van Buren, any other position threatened a resuscitation of Alexander Hamilton’s anti-constitutional Federalism of the 1790s. Freedom in America meant living under the Constitution, and so he would have none of Federalism. Opposition to Hamiltonian measures was the reason that Van Buren had joined John C. Calhoun and Thomas Ritchie in organizing the Democratic Party in the first place.
One manifestation of this view was the Jacksonian campaign against the Second Bank of the United States, which finally died at Jackson’s hand in 1836. Jackson counseled in his Bank Bill Veto Message of 1832 that the Bank should be resented by the common man. Rather than showering its blessings on rich and poor alike, the Federal Government through the Bank was favoring the wealthy and well-connected.
Opulence in 1832 didn”t extend to billions, but you can see the resemblance of the Bush-Bernanke Bailout to Nicholas Biddle’s bank charter. The Bank was the statutory depository of federal tax revenue, which it then was entitled to loan out at interest. Its notes formed what Hamilton had called a “circulating medium.” Besides that, the government used the Bank as lender of choice in case of war; this had been the prime reason for its creation.
In other words, people had to put their money in a private bank, which then had the right to lend it at interest. In essence, it was guaranteed to make money, unless its lending policies were simply incompetent.
Sound familiar?
No relevant section of the Constitution has changed since the death of the second federally-chartered bank in 1836. What has changed is American culture, as Tom Woods and I explore in Who Killed the Constitution?.
Where once Ron Paul would have stood at the head of a majority of Jeffersonian Republicans or Democrats in decrying the elite’s attempt to fleece the public through legislative gifts to bankers, he now stands alone. Virtually no one adheres to any serious constitutionalism “ to a reading of the Constitution that sometimes prevents him from doing things that he really wants to do. No one seems to care to point to a constitutional provision authorizing bank legislation (read: Federal Reserve legislation or $700B bailouts).
So, the next time an avowed socialist proposes nationalization of health care, if you hear anyone who voted for the Bush-Bernanke Billionaire Bailout say that it’s unconstitutional, be wary. His “constitutionalism” is highly selective.
Besides which, the long-term positive economic effect of this latest outrage against the Constitution will be virtually non-existent, if not absolutely negative. But that is grist for another mill.
Kevin R. C. Gutzman is co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Fate of American Liberty from World War I to George W. Bush.
]]>In the area of foreign policy, Reagan vindicated Goldwater’s lonely stand in the early-1960s Senate with such fellow “extremists” as John Tower and Strom Thurmond on behalf of victory over, not accommodation with, Communism. That was the main reason to be a Reaganite, as I understood it. The Communist Conspiracy had to be confronted, and only Reagan”not Bush, not Ford, not Nixon, and certainly not Carter”promised to confront it.
Alexander Bessmertnykh, the last Soviet foreign minister, said at a conference in Havana some years later that it was Reagan’s military buildup, and particularly the prospect of the Strategic Defense Initiative, that convinced Mikhail Gorbachev that the Soviet economy must be reformed. The results were Glasnost, Perestroika, and the fall of the Berlin Wall.
Reagan’s domestic critics know better than Bessmertnykh, of course, why the Gorbachev reforms occurred. The run of Democrats and Russia scholars in the USA credit Gorbachev himself for liquidating the Soviet system to which he had devoted his life. What did Bessmertnykh know, anyway?
The other main reason to be a Reaganite was that Reagan, uniquely among 20th-century presidents, respected the Constitution as ratified. It was he, with the help of Attorney General Edwin Meese, who made originalism de rigueur after its decades in the wilderness. In other words, it was Reagan and Meese who dusted off the outdated notion that the federal government’s fundamental law should be law, not merely a thing of wax to be new-molded by each generation of federal office-holders (particularly judges).
Reagan and Meese did not succeed entirely in refashioning the federal judiciary along originalist lines, but they certainly made a start. Had the next two Republican presidents not been from the anti-Reagan, anti-Goldwater wing of the Republican Party”that is, had Reagan not made the momentous mistake of choosing George H. W. Bush to be his vice president”originalism would today be triumphant in the courts.
What of these two planks of Reagan’s platform today?
The two chief forces in human history, one wise historian said, are boredom and inertia. In regard to foreign policy, inertia has meant the retention of American bases and alliances in myriad spots formerly significant to the Cold War struggle. It has meant the continuation of our government’s tendency to involve itself in every dispute among insignificant tribes in unheard-of corners of the world. It has meant perpetuation of devotion to pipsqueak allies whose friendship now that the Cold War is over costs us more (in the form of broils with those allies” enemies) than it can ever be worth.
John McCain is an old man. People of that description are even more prone than others to be driven by inertia. In the area of foreign policy, he certainly is, as when he says it would be a good thing to assimilate Iraq to the inertia-is-the-only-explanation examples of the immortal American commitments to North Korea and Germany. If 55 years after the Korean War and 63 years since World War II we still station entire armies on those distant battlefields, McCain reasons, why not turn Iraq into that kind of success?
It hasn”t occurred to him, seemingly, that America didn”t enter into World War II with the hope of becoming the world’s policeman, and that the Cold War has ended. Since the days of John Foster Dulles, Americans make permanent alliances, and here is another chance.
I have a feeling, and so do many others, that our current wars have something to do with President George W. Bush’s particular brand of Evangelical faith. Would a McCain presidency at least mean the lessening of tensions flowing from that source? The fact of Sarah Palin’s dispensationalism, in tandem with John Hagee‘s primary-season endorsement of McCain and neoconservative leading light Bill Kristol’s support for Palin, is not a good sign.
When it comes to the judiciary, well, what is one to say? In marked contrast to Reagan’s habitual emphasis on the topic, McCain let slip part of one sentence in his Republican National Convention acceptance speech about the kind of judges he would appoint, and even that was only a bromide. His earlier comments seem to indicate that he prefers the Bush appointees to the Supreme Court to Justices Scalia and Thomas, and one is unsure why. Although I certainly have my favorite among the four, I doubt that he could explain this distinction on a theoretical basis.
It may be that a President John McCain would appoint better judges to federal courts than would a President Barack Obama. In fact, his judges likely would give us policy results that readers of Takimag would find preferable to those produced by Obama judges. To me, judicial legislation of whatever bent is equally lamentable, and I truly doubt that McCain appointees would do much to remedy the current moribund state of the Constitution.
In short, for this old Reaganite, there’s no obvious reason to be what in campaign 2008 is called a conservative. It doesn”t look much like Reaganism when it comes to my two paramount issues, and that’s leaving aside the attitudes toward taxing, spending, and government power generally with which the word “conservative” is now associated. John McCain is far more emblematic of than out of step with today’s conservatism”and far more in agreement with it than with the distinct brand once championed by Goldwater and the Gipper.
]]>Joe Biden is one of the chief proponents of this view.
It was Biden, remember, who gave us the Violence Against Women Act of 1994. Among other things, that law created a federal civil claim for rape. The Supreme Court struck that provision down in the 2000 case of United States v. Morrison. There, then-Chief Justice William Rehnquist noted that the Commerce Clause did not give Congress power to penalize rape.
Note what Biden had done in the Violence Against Women Act: he had followed the decades-old tendency of federal officials to grab more power. While the Constitution reserved most power to the states, Congress has found a ready mechanism for getting around that in the Commerce Clause.
The Commerce Clause says, “The Congress shall have Power … to regulate Commerce … among the several States.” The Supreme Court over the last 70 years has let Congress have very wide discretion (too much discretion) in deciding what “Commerce … among the several States” is. Finally, in United States v. Morrison, the Court decided what was not interstate commerce: rape wasn”t.
Joe Biden cannot actually have believed that rape was commerce, let alone interstate commerce. What was really going on in the adoption of the Violence Against Women Act was that Sen. Biden was demonstrating his contempt for the Constitution’s limitations on the powers of Congress. The Tenth Amendment, which reserves to the states the powers not granted to Congress by the Constitution, is a dead letter to Biden.
Biden also has a very peculiar understanding of the Ninth Amendment. In the 1987 hearings on the confirmation of Judge Robert Bork to the Supreme Court, Biden got into a dispute with the nominee about that amendment. Famously, Bork said that he could not give it any content. It was, said Bork, an “inkblot” and should be treated as if it did not exist.
Biden had fun with Bork over this. How could the ballyhooed advocate of originalism say that one of James Madison’s amendments had no meaning”especially when the record of the ratification debates made clear that the point of the Ninth Amendment was to ensure that the federal government would not be free to trample on unenumerated rights?
Bork was wrong. But so was Biden.
How? While Bork would have ignored the Ninth Amendment completely, Biden would have done something even worse.
Since the early 1960s, some anti-constitutionalists on the Supreme Court have pointed to the Ninth Amendment in justification of their judicial legislation. While the Ninth Amendment, like the rest of the Bill of Rights, was intended to limit federal power, these judges have used that amendment to justify their increasingly innovative vetoes of state policies”including policies related to sex”that they disliked.
In other words, certain justices over the past half-century have converted an amendment that was intended to limit federal power into a source of federal power. They have pointed to it in justification of their decisions invalidating myriad state laws.
Biden approves of this behavior from federal judges. In fact, he has been quite proud of his role in defeating Bork’s nomination, and his boasts in this regard often center on Bork’s attitude toward the Court’s historically unjustified sex-related rulings.
Had Bork been on the Court, Biden says, the Court’s rulings in that general area”the area of contraception, sodomy, and abortion”might not have come out as they did.
In other words, Biden claims that had Bork been confirmed, control over those subjects would have remained in state legislatures, where the Fournding Fathers left it. Let us accept Biden’s analysis.
While Barack Obama is a newcomer to federal politics, Joe Biden has been a member of the Senate Judiciary Committee for a long time. He has a record. Because of that record, people interested in the fate of constitutional government in America should not be pleased with the prospect of a Biden vice presidency.
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