[Also on edit - There is an extraordinary discussion of the history of American law at http://rationalrevolution.net/articles/ten_commandments.htm, which discusses the many and sometimes extreme differences of opinion among the 'founders,' and thus demonstrates the fact there there was no single intent of the 'founders.' As there were many differences, there could not be an "original intent."]
In the first Federalist Paper, Alexander Hamilton wrote:
"An enlightened zeal for the energy and efficiency of government will be stigmatized."
Today's conservatives are living proof of the drive of some to stigmatize an energetic and effective federal government. They claim the mantle of authority of the Founding Fathers as described in the Federalist Papers. But "in the cold bright light of waking reality,"* in many respects they are the repudiation of the principles laid out in them
Many conservatives believe, consciously or unconsciously, that "government is the problem, as President Reagan so grandly announced
Many liberal democrats believe that government can be a powerful engine for good, and it the vehicle "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." (Preamble, US Constitution.)
Conservatives strongly argue that with our Constitution the "Founding Fathers" intended that the federal government be "limited" both in power and size. A conservative idea which has recently gained wide attention is the "Tenther" idea that unless a power is specifically named in the constitution, it does not and cannot exist at the federal level.
Those views are not supported in the Constitution itself or in the writings of the Founders.
In the Federalist Papers, the Founders tell us that the two central limitations on government powers are (1) the checks and balances among the three branches of government, and (2) the power of the people to regularly vote: "governments are instituted among men, deriving their just powers from the consent of the governed." (Declaration of Independence.)
Conservatives often cite the Federalist Papers as authority for their views on "limited government." They often cite the many times that word is used, but usually ignore the discussions in which that word is used, and, indeed, they have completely ignored Hamilton's definition of a "limited constitution." (See below.)
Brief Background
The Federalist Papers were written when it had become clear that the original Articles of Confederation had failed because of a central government with very limited powers. The Constitutional Convention was convened, and the Constitution we now have was drafted. The Federalist Papers were written to support the newly proposed Constitution.
There were, of course, people who denied that the Articles of Confederation had failed, and they preferred the very limited powers thereunder.
Because most people believed the Articles had failed, the draft of the new Constitution expanded the powers of the central government. The writers of the Federalist Papers (who supported the expanded role) were determined to ease the concerns of the anti-federalists, and thus, they spoke of the new Constitution as being "limited," using that term in that context a number of times in the eighty five Federalist Papers
In the 1700s, the model of an "unlimited" government was a monarch with vast powers, making laws, judging laws and administering them were mostly concentrated in the one person, the King: to them a limited government is something with less concentrated power than a monarch has.
Limited Government in the Eyes of the Federalists
How did the Founders actually define the concept of a limited government? Did the Founders hold the Tenther idea that for the federal government to have a certain power, it had to be specifically mentioned?
Hamilton wrote: "By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like." [Emphasis added.]
This, the most direct "refudiation" of the Tenthers.
Hamilton didn't think a power had to be specifically named to exist, he though it had to be specifically denied to not exist.
For example, in Federalist Papers 8 and 24, Hamilton noted that the Constitution does not specifically mention standing armies, and yet he had no doubt that they were constitutionally permissible, not withstanding the two year funding limitation.
Similarly in Federalist 81, discussing the powers of the Supreme Court, Hamilton noted: "In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution...." [Emphasis in the original.]
And in Federalist 29, he specifically invoked the Article II "necessary and proper" clause to show that congress has powers not specifically enumerated.
Governmental Power and Wisdom
How about reading the Constitution restrictively? Was Hamilton worried that the new Constitution might be read by some too restrictively?
In Federalist 25 he wrote "Wise politicians will be cautious about fettering the government with restrictions that cannot be observed...."
Indirectly, Hamilton suggests that today's advocates of a "small, weak federal government" are, by that very idea, unwise.
What Did the Federalists View as the Limits on the Federal Government?
One might ask, how did the FF's conceive of a constitution which could be both expansively read as also providing for a limited government?
First, as noted, they were working in the context of having recently left a government ruled by a monarch. King George was their vision of an unlimited government.
The checks and balances they wrote into the Constitution, wherein each branch of government serves to check the power of the other branches was to them, a foundational element of a "limited government." (See Federalist 51.)
Similarly, as described in Federalist 53, written by either Hamilton or Madison, they viewed regular frequent votes for congressmen serving in the House of Representatives as a method of limiting government.
Conclusion
The Founders, in the voice of the Federalists, did not view "limited government" as being defined by size or presumptive limitations on powers being exercised; they didn't believe that unless specifically mentioned a power didn't exist: they viewed limits on government as resting in the checks and balances of our system and in the citizens right to vote.
The Founders recognized that the "necessary and proper clause" gives birth and legitimacy to powers which are not specifically mentioned.
Those who argue that a "limited government" is one with very limited powers are both "unwise," in Hamilton's words, and, often, are those who benefit from such limitations, who benefit from accumulations of unchecked and unbalanced corporate, mercantile, and back room political power.
Perhaps In Federalist 1, Hamilton demonstrated a prophetic vision of today's political climate:
"And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty."
======
* The cold bright light of waking reality was a recurring phrase of Professor Grant Gilmore, legal scholar and historian extraordinaire.
Hamilton, Hamilton, Hamilton...the Founding Father the left is madly in love with. My favorite Alexander Hamilton quote (from the 1787 convention debates no less), "I believe the British government forms the best model the world has ever produced...This government has for its object public strength and individual security." Um, in 1787, had we not just fought a war to rid ourselves of the British government Hamilton so loved? His ideas at the convention, such as a permanent president who appointed state governors and could veto any state law, went over like a lead balloon. If you don't believe me, read the Constitution (again?).
ReplyDeleteDouglas Adair, an editor of The Federalist Papers, wrote that "with devious brilliance, Hamilton set out, by a program of class legislation, to unite the propertied interests of the eastern seaboard into a cohesive administration party." He also "transformed every financial transaction of the Treasury Department into an orgy of speculation and graft in which selected senators, congressmen, and certain of their richer constituents . . . participated." If this sounds familiar it is because the political descendants of these eighteenth-century "propertied interests" are today's benefactors of the Wall Street cronies/D.C. Political Class $700 Billion Bailout Bill of 2008.
A recent Fed publication entitled "A History of Central Banking in the United States" proudly boasts that "the Federal Reserve has similarities to the country's first attempt at central banking, and in that regard it owes an intellectual debt to Alexander Hamilton" who, the Fed says, "sounded like a modern-day Fed chairman." A ringing endorsement from the Fed, who, according to a July 28, 2009 NY Times polling article, rated BELOW the IRS (and dead last among nine agencies rated) w/a 30% public approval rating.
Hamilton is no founding hero and certainly did not embody the spirit and intent of the founding generation. He is precisely why we should not buy hook, line, and sinker the Progressive "government can be a powerful engine for good" plea.
Anyone reading and buying into this posting should check out the perspectives of some actual historians, rather than the writings of one Founder:
http://www.lewrockwell.com/orig8/gutzman2.html
http://mises.org/daily/3164
http://mises.org/daily/392
http://www.tenthamendmentcenter.com/2010/08/08/rewriting-history/
http://www.lewrockwell.com/woods/woods121.html
The entire book is excellent, but specifically for this topic paragraphs 4-6 deal w/founding principles:
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106948&layout=html&Itemid=27
http://www.law.upenn.edu/journals/conlaw/articles/volume9/issue1/Barnett9U.Pa.J.Const.L.1(2006).pdf#search=%22barnett%22
On necessary and proper,
ReplyDeleteJames Madison, the principle architect of the Constitution, explained his true intent in Federalist #41:
“It has been urged and echoed that the power "to lay and collect taxes . . . and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare . . . .
“Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; . . . but what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows and is not even separated by a longer pause than a semicolon? . . . For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”
In other words, Madison and the drafters clearly spelled out what specific, delegated powers they meant to be included within the general powers: to provide for the common defense and general welfare. These powers make up Article I, Section 8. These powers, and only these powers, were assigned by the people of the several states to the Congress. The elastic clause was not an additional grant of power.
It is abundantly clear from Hamilton in Federalist #33 and Madison in Federalist #44 that the founders intended the "sweeping clause" to be simply enabling power necessary to implement the "particular" delegated powers. It was not intended to grant additional "general" powers to the Federal government.
Nonetheless, Anti-Federalists led by Patrick Henry had warned that the delegated powers themselves were too much and that the necessary and proper clause would almost certainly be abused. As a compromise for ratification, the Bill of Rights was added, capped by the Tenth Amendment, which supposedly limited the Federal Government to the enumerated powers. The formulation was negative, making no provision for additional powers in the elastic clause. The Tenth Amendment has not so much as slowed the abuse of the necessary and proper clause.
Oh, one more fact about an energetic government...it has created a $14+ trillion dollar debt that continues to grow and has been widely identified as a national security risk (Sec State, CJCS, House Majority Leader, Council on Foreign Relations, etc.).
ReplyDeletethats because it hasn't been efficient, nor had any support from the richest taxpayers.
Deletehttp://www.tenthamendmentcenter.com/2009/11/24/kevin-gutzman-freedom-vs-the-courts/
ReplyDeleteAH, Thanks for your posts.
ReplyDeleteYou have pointed out a significant shortcoming in my post: the implication that the Federalist Papers and/or any one Founding Fathers spoke for them all, and that there was some sort of uniform and total agreement as to what the Constitution means or what the "Founders" as a group intended.
I have often written in opposition to that view, and inadvertently wrote as if I subscribed to it.
Your posts make the very point I have argued in the past: by dismissing the views of Hamilton, author of the majority of the Federalist Papers, and pointing that he and Madison had fundamental disagreements as to how the Constitution should be construed, you have doe an excellent job of smashing the cherished conservative view that the drafters and ther Founding Fathers spoke with one voice, and the view that there was some sort of uniform "original intent."
>>It is abundantly clear from Hamilton in Federalist #33 and Madison in Federalist #44 that the founders intended the "sweeping clause" to be simply enabling power necessary to implement the "particular" delegated powers. It was not intended to grant additional "general" powers to the Federal government.
I guess you (or Lew?) missed this explanation in FP 33 as to why the necessary and proper clause was included: "Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union."
(Or perhaps you have mistaken Hamilton's description of the arguments he was refuting for his own views. In FP 33 in addition to the quote above, I suggest you read the paragraph which begins with "But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws ....")
You sarcastically suggested that perhaps I haven't read the Constitution. Of course, having been through law school, and having practiced law for may years (albeit not in the area of constitutional law) and having a keen interest in the constitution, in fact I have. (My oldest daughter laughs at me because I have a link to it on my browser quick links bar, in addition to having in a word processing document. I use both frequently.)
I have also read thousands (or sections of thousands) of Supreme and lower Federal Court constitutional decisions (which are chock full of constitutional discussion and citations to sources) and legal scholarship. From all perspectives, not just one viewpoint.
Response to AH, Part 2
ReplyDelete>>Oh, one more fact about an energetic government...it has created a $14+ trillion dollar debt that continues to grow
The two largest eras of growth of the Federal debt arose under Reagan and Bush II - neither of whom could be described as proponents of "an energetic government."
In fact both worked mightily to handicap the government - to de-energize it - to make it as ineffective as possible so that corporations could maximize their profits, often at the expense of the public weal.
If you ignore the huge deficit effects of endless tax cuts, then it sure could look like government spending is "evil."
But the deficit is huge because of Republican economic theories, not because of an "energetic government."
Of course, there are elements of federal spending which are wholly wasteful - like the defense spending for weapons and systems the armed services don't even want, but which congressmen (dem and repub) love because it brings jibs to their districts.
Try to touch such wasteful defense spending, and listen to the right wing howls of "UnAmerican, unpatriotic."
Again, thanks for the posts and the discussion
I was not intending to suggest you have never read the Constitution, but perhaps someone who might read your post may not have recently and might take your view on face value.
ReplyDeleteAdditionally, as we both know, law school entails understanding common law, which is not necessarily a reflection of the people's practices, but rather law developed by judges over the years (hence your view that judges make law). A law school student learns the law, not by reading statues set forth or treatises that summarize it, but rather by studying the judges opinions that invented it...the case-law method. Whether the ruling as right or wrong misses the point when studying via the case-law method. Law professors by definition are lawyers, but are rarely historians, therefore prefer to argue the case rather than seek the truth. They often subordinate good facts to a good argument. I'm not saying you do not seek the truth, but I question your methods by using case-law instead of historical facts as your guide.
Common law courts both apply the law AND make the law (legislate). However, according to the United States Constitution, Article I, Section 1, "All legislative Powers herein granted shall be vested in a Congress of the United States..." and (your favorite, the elastic clause) Article 1, Section 8, Clause 18 authorizes Congress "To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers..." There is no provision in Article III granting judicial authority to legislate.
As such, even though law schools use the case-law method for training lawyers, according to the U.S. Constitution, regardless of judicial precedence, a judge does not have the authority to legislate. The Constitution grants specific authority and if there is no grant, they are retained by the states or the people. Just because common-law habits taught in law school make their way into the judicial process does not make them legitimate.
If you do not understand the evidence for the original Constitution (founder's common history, their core political values and principles, and the document's legal environment and structure), there is certainly no way to determine intent. Ignoring such evidence does not make your position correct.
BTW, I will never call anyone "unAmerican" or "unpatriotic" for advocating for a fiduciary government regardless of the subject area.
More on necessary and proper later. Good debate. Cheers, Austin
First, I don't know where or when you went to law school, but your picture of it is inaccurate. (I went in the 70s)
ReplyDeleteTrue, case law is an important part of legal studies, but it far from the only aspect of legal studies.
The code courses I took involved studying the codes: sales, secured transactions, commercial law, bankruptcy, con law (see below) etc etc.
(I recall one prof who declared "when I ask a question, the first thing I should see is your eyes going down to your code book." I think it was my bankruptcy course.)
BTW, in Con law, the cases ARE the law - there is no "code" other than the Constitution itself, and that takes an hour or so to read.
>>Law professors by definition are lawyers, but are rarely historians, therefore prefer to argue the case rather than seek the truth.
Again, I don't know what your law school experience was like, but at mine, some prof's focused on history, some didn't. (Grant Gilmore's contracts course was, in a sense, nothing but history. Also, my con law course, of course -- con law is, in effect, almost all history. Sales and the other code courses, not so much.)
>>"All legislative Powers herein granted
Ive already addressed that. Legislation is not the only way laws are made. That reading of that clause is an example of a common mistake of amateurs who pick up the constitution and think they can understand it it - they don't have the background in how to read legal documents and the sorts of questions one should be asking oneself when doing so.
And, again, for someone who claims history is so important, I would think you'd know the history of the creation of law in the US - In the early days, it was almost all judicial - I don't know when legislatively created law became a major player, but I suspect it was in the late 1800s and started with codifications of the common law - law made over the centuries by judges.
This isn't some sort of "liberal" opinion - this is fact, hard fact.
>>If you do not understand the evidence for the original Constitution (founder's common history, their core political values and principles, and the document's legal environment and structure), there is certainly no way to determine intent. Ignoring such evidence does not make your position correct.
The first rule of constitutional and statutory construction is: look at the words themselves.
Legislative history can shed some light - but the idea that there is "an intent" for any given law makes no sense when you stop and realize that every bit of legislation has been argued over and involves compromises by people of widely varying views.
Your own initial post - arguing that Hamilton had very different views than some of the other founders demonstrates the empty rhetoric of "intent of the drafters."
The limited significance of legislative history is something you learn in the first semester of law school.
Austin,
ReplyDeleteBTW, in another thread you claimed that the "intent of the founders is clear."
In this thread you are demonstrating that there were very different views of what was intended by various clauses in the Constitution.
You can't have it both ways.
I did not meant to imply law school only dealt w/case-law. Neither am I trying to simplify law school. I'll admit to shortsightedness if that is how it came over. The point was there has been rise of the case-law method which came to the forefront in the 1970s at Harvard Law School. This method is now widely used, which is of course fine, but can mislead students if the professor is not careful balanced it w/proper support material or context. I was also careful to say MOST law professors are not historians, thus their tendency to focus more on the argument. The person who states the better case usually wins the argument.
ReplyDeleteI agree that law by the judiciary has a long tradition in our country. My point is the Constitution vests all legislative authority with Congress. Law making by the judiciary is not a delegated power. Law made by the judiciary, just like an unconstitutional law, is null and void (remember Hamilton in Federalist 78, "No legislative act, therefore, contrary to the Constitution, can be valid"). Why can't we agree on this?
You absolutely have to look at the words of the Constitution itself. But you also have to have an understanding of what the words meant and how they were used in 1787. You also have to understand that the document was created in the same manner as most other 18th century legal documents. As we both agree, you cannot just pick up the Constitution and know exactly what it means. It requires a great deal of personal research (or formal education).
The intent of the founders (drafters and ratifiers) is clear and backed up by many well respected historians. My points have remained clear and consistent. It is impossible to line-by-line, founder-by-found provide intent in this forum. I simply point out that Hamilton was an outlier in his time, who in an effort to reach his own ends, make a very convincing appeal for support of the Constitution. There was enough flexibility left to allow him, a skilled politician and lawyer, to reach his goals. I would argue that there were more statesmen and fewer politicians at our founding. The public trust in representatives was much greater in 1787. Today, there are mostly politicians and few, if any, statesmen.
My questions to you:
In your opinion, what are the defined limits on the federal government?
Why would the framers spell out 17 enumerated powers in Article 1, Section 8 if the authority to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers was an implied limitless grant of authority?
Was it implied that the judiciary could also make laws despite no grant of power in the Constitution?
Can you expound on what you mean by, "The limited significance of legislative history is something you learn in the first semester of law school"?
And off topic but, what is your opinion on McDonald v. City of Chicago and D.C. v. Heller cases?
Again, I'll point out some more on necessary and proper later.
Damn, I hate this blogger engine - it losses almost as many posts as it lets through...
ReplyDeleterjw Response Part 1
>>The point was there has been rise of the case-law method which came to the forefront in the 1970s at Harvard Law School.
1870's
>>This method is now widely used, which is of course fine, but can mislead students if the professor is not careful balanced it w/proper support material or context.
Which is true of any teacher or self -appointed teacher
>>I was also careful to say MOST law professors are not historians, thus their tendency to focus more on the argument. The person who states the better case usually wins the argument.
I'm thinking your knowledge of law school comes from 'Paper Chase,' 'One L' and 'Legally Blond'
The first focus is on "thinking like a lawyer." A key element of that is learning to recognize that there is always more than one view of a subject. (You cannot competently represent a client if you think the other guy doesn't have some stuff to say.)
Your insistence for example, that "The intent of the founders (drafters and ratifiers) is clear" demonstrates a very non-legally educated position.
The focus isn't really on winning arguments - it is on doing the basic analysis of the subject needed to formulate a strong argument, and then learning how to do so.
Many people think all law is arguing and conflict.
It isn't. Much law is co-operative and based on negotiation and achieving mutually useful agreements. (Contact negotiations, trusts and estates drafting, legal memoranda advising clients as to how to conform their actions to the law.
The argument stuff is what makes TV, it is but the tip of the iceberg.
Re "legislative intent" and intent of the drafters, please read the excellent discussion at http://en.wikipedia.org/wiki/Legislative_history#United_States, especially the second bullet point:
"Collective intent is an oxymoron. Congress is not a thinking entity; it is a group of individuals, each of whom may or may not have an "intent" as to any particular provision of the statute. But to look for congressional intent is to engage in anthropomorphism--to search for something that cannot be found because it does not exist."
I don't agree entirely with that articles' apparent complete dismissal of "legislative intent." My experience is, that when carefully read with a healthy degree of skepticism, it can shed, in some cases, some light on what a piece of legislation is supposed to "mean.
But note, when I worked for one states legislative drafting counsel (the lawyers who usually actually write the bills for legislators) I was often tasked with drafting "legislative history" (majority committee reports, minority committee reports, speeches and comments by one or more legislators) and I can assure you that there is a huge amount of spin and political posturing in "legislative history."
rjw response Part 2
ReplyDelete>>The intent of the founders (drafters and ratifiers) is clear and backed up by many well respected historians. My points have remained clear and consistent.
Consistent? With one breath you say there is _an_ intent, with the next breath dismiss the writings of Hamilton, who wrote most of the Federalist Papers.
You really don't see the inconsistency of those positions? (Not to mention the pipe dream that there can be some sort of collective "intent" of a large group of people - _especially_ where those people expressed differences of opinion!)
>>I simply point out that Hamilton was an outlier in his time,
You have not asserted that and I believe that to be an inaccurate description. You have asserted that you don't agree with his views, based on what you think the b=views of "everyone else" were.
Earlier you referred to the influence of Locke on the FF's, and yet ignored that Hume was also influential, and had some very different ideas.
>>As we both agree, you cannot just pick up the Constitution and know exactly what it means. It requires a great deal of personal research (or formal education).
Or? personal research alone, even reading views from one dogmatic outlier group comes no where close to understanding it.
In my experience, unless one is educated in a legal studies curriculum, one cannot form substantive understanding of the constitution.
(I have never met a worker in a given profession who hasn't been of the opinion that to understand his/her subject requires specialized knowledge. (Ask a ditch digger about the best length of shovel handles and the best shovel head shape to use in various conditions.)
And yet a lot of people somehow think they can learn a complex subject like law on their own,
I watch 'Grays Anatomy' sometimes (And used to be a medical photography when I was first out of college!) Want me to do your brain surgery?
>>You also have to understand that the document was created in the same manner as most other 18th century legal documents.
So tell me, how were 18th century legal documents created?
rjw Response Part 3
ReplyDelete>>In your opinion, what are the defined limits on the federal government?
I agree with Hamilton in Federalist 44, it is impossible to specifically delineate either inclusions or exclusions.
I believe that Congressional power is outlined in Article II, and that determination of the extent of those powers has to be done on a case by case basis. I think Swift v Tyson and its doctrine of federal common law (yet another example of the history of judges making law throughout our history) and the over-ruling Erie v Tompkins 100 years later are an excellent illustration of the reach of federal power under the constitution and they illustrate that it is a living breathing document of which our understanding necessarily changes as our society changes.
Again re judge made law.
There are three ways laws are created in our system: legislative enactments, regulatory actions (by way of delegated powers - I'm surprised the right wingers haven't resurrected the delegation of regulatory powers issue) and judges making law,
Judges don't legislate, legislature don't create common law.
The "strict construction" there is no specific delegation of law making powers to judges argument founders on historical reality.
In the English tradition, judges made almost all law. Legislative enactments by Parliament were few and far between. A study of the development of negotiable instruments law by Lord Mansfield and his fellow judges is an excellent example of that traditions. See, e.g., http://en.wikipedia.org/wiki/Lex_mercatoria
“ Lord Mansfield created,’a body of substantive commercial law, logical, just, modern in character and at the same time in harmony with the principles of the common law. It was due to Lord Mansfield's genius that the harmonisation of commercial custom and the common law was carried out with an almost complete understanding of the requirements of the commercial community, and the fundamental principles of the old law and that that marriage of idea proved acceptable to both merchants and lawyers.’"
It is my understanding, (although I do not recall my source for this), that at the time of the revolution, here was discussion as to wether to keep the common law system of England, from which we had just split, or adopt the civil law system of France, who had supported us in the war for independence, which is far closer to the idea that only the legislature makes law.
We kept the common law system, and not only did judges keep on making sun=bstantive law, but none of the FF’s objected - it was so such an ingrained system of creating law, no one tried to argue that legislative enactment was the exclusive way of making law.
Again, you pay homage to understanding history, but apparently ignore it when it doesn’t fit your preconceptions.
One aspect of legal history is the slow reactions of legislatures to large societal and technological changes. I mentioned negotiable instrument law above. As the industrial revolution got underway, society began to change form a strictly agrarian baret society, in which there was little need for cash, to an industrialized trade society, where cash became the unit of trade.
The Kings and Parliament were far to slow to understand the need for more cash, so merchants, an ever inventive lot, began using negotiable instruments: checks, drafts, promissory notes, commercial paper.
They were of limited value, however, until their legal implications and incidents became standardized. That is were Lord Mansfield came in. He and his fellow judges created the law of negotiable instruments and commerce took a huge step forward.
That cycle has continued throughout our history. There is an extensive literature on the law of railroads, much of which was judge-made in the early days, because legislatures typically lag behind the times.
rjw Response Part 4
ReplyDeleteTort law has been almost entirely judge made law until the 1940s
The extensive body of judge made law is reflected in the various Restatement of the Law volumes produced over the last 100 years or so. Had the law been legislative, there would have been no need for the Restatements.
An earlier post >>If you do not understand the evidence for the original Constitution (founder's common history, their core political values and principles, and the document's legal environment and structure), there is certainly no way to determine intent. Ignoring such evidence does not make your position correct.
You claim an “evidence” which simply doesn’t exist
If you do not understand that the evidence is varied and often contradictory, and that, in fact, a group of people cannot have an intent, it must seem easy to determine “intent.” Ignoring that reality invalidates your position.
For example, you complete fail to account for the significant digffernece between Locke and Hume, eg as regards the existence of "natural law" and yet both had huge influences on the founding fathers.
I'm guessing that you look only to one select group and it's historical views and think that you are seeing all of the historic evidence. You aren't.
>>what is your opinion on McDonald v. City of Chicago and D.C. v. Heller cases?
I think that the 2nd amendment expresses a collective right, not an individual right, but I understand that there are different views on this. And I understand that the Roberts court was acing within our judicial history and parameters in reaching the activist decision they reached. (Overturning legislative enactments and years of legal precedents are two hall marks of judicial activism.)
Again, I would point to history. In the early days of the expanding republic, laws were passed banning hand guns in some locations. The FF’s were still around, and yet no one objected that these laws violated the 2nd amendment.
There is an informative discussion of the history of the second amendment at http://thedianerehmshow.org/shows/2006-08-02/saul-cornell-well-regulated-militia-oxford
Necessary and Proper. Let me start by citing McCulloch v. Maryland. As
ReplyDeleteyou know, this 1819 case ended w/a landmark decision by the Supreme
Court. Chief Justice John Marshall wrote, "Let the end be legitimate,
let it be within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not
prohibited, but consistent with the letter and spirit of the
constitution, are constitutional." With that the doctrine of implied
powers became firmly established as a significant source of federal
authority. It is generally accepted that via the clause the powers were
already there. However, the scope of the powers has grown well past the power to "carry into Execution the foregoing Powers."
Georgetown University Constitutional Law Professor Randy Barnett:
"Assuming judges have the power to nullify unconstitutional statutes, as
most would concede, how much deference do they owe legislatures that
enacted them? At the federal level, the answer turns in part on the
meaning of the clause that is most often used to justify the
constitutionality of congressional powers: the Necessary and Proper
Clause. If you take, attributed to Marshall, that "necessary" means
merely convenient or useful, then courts are generally unqualified to
second-guess a congressional determination of expediency. On the other hand, if the clause requires (a) a showing of means-ends fit -- as per Madison, Jefferson, and even Hamilton -- together with a showing that (b) the means chosen do not prohibit the rightful exercise of freedom (or violate principles of federalism or separation of powers) and (c) the claim by Congress to be pursuing an enumerated end is not a pretext for pursuing other ends not delegated to it Marshall in McCulloch), then an inquiry into each of these issues is within the competence of courts."
Structurally, during founding era (as today?), the doctrine of
incidental powers gave an agent (Congress in this case) some discretion
in how it carried out his duties. However, the agent could act only for
the purpose of carrying out the principle powers, the actions taken had
to be of the sort either reasonably necessary to the enumerated powers
or a customary way of executing them, and incidental powers never
included authority as important as the listed powers.
This clause was inserted to inform the reader that Congress had implied
ReplyDeleteor incident authority so they could carry into effect the foregoing
powers. Many Founders, including Hamilton, Madison, and Marshal (in
McCulloch v. Maryland), state that the clause was a mere statement of
what three would have been even if the clause had been entirely omitted.
Hamilton additionally defended the clause by noting it was designed so
Congress would be able to, with out interference, carry out its duties
enumerated in the Constitution. He states in Federalist 33, "Why then
was it introduced? The answer is, that it could only have been done for
greater caution, and to guard against all cavilling refinements in those
who might hereafter feel a disposition to curtail and evade the
legitimate authorities of the Union."
In other words, to guard against those who would seek to evade the
legitimate authority of the Union by an overly literal interpretation of
the constitution. Necessary and proper relies on adherence to the
fiduciary responsibility of the law maker. The legitimate authorities
are the 17 enumerated powers and other Constitutional authority
entrusted to Congress. That seems to be a reasonable way to interpret
of this clause.
If the "necessary and proper" clause was truly laid down by the Founders
ReplyDeleteas an independent power as broad as the Hamiltonians saw it when
debating Jefferson on the Bank of the U.S., the rest of the details of
the constitution are not necessary. But the presence of many
power-limiting features in the Constitution seems to tell us Jefferson's
view of "necessary and proper" is most correct.
In my opinion, advocating and accepting "necessary and proper" in the
loose sense or "convenient," has turned a limited republic into a
powerful, unlimited State. Hamilton also states in Federalist 33, "If
the federal government should overpass the just bounds of its authority
and make a tyrannical use of its powers, the people, whose creature it
is, must appeal to the standard they have formed, and take such measures
to redress the injury done to the Constitution as the exigency may
suggest and prudence justify." This is where my position lies.
Does this make "necessary and proper" sense? U.S. vs Gettysburg Elec.
Ry. Co. (1896) considered whether Congress had the power to condemn a
railroad's land in what was to be Gettysburg National Military Park.
Writing for the Court, Justice Peckham found that the power to condemn
the railroad's land was implied by the powers of Congress to declare war
and equip armies because creation of the park "tends to quicken and
strengthen" the motives of the citizen to defend "the institutions of
his country."