Antonin Scalia. (photo: Alex Wong/Getty Images)
14 February 16
(Originally published on July 4, 2012)
(Originally published on July 4, 2012)
From The Archive: The late Supreme Court Justice Scalia put his right-wing ideology above any respect for the Constitution’s Framers, even resorting to a made-up view attributed to Alexander Hamilton in Scalia’s dissent to the landmark upholding of the Affordable Care Act, wrote Robert Parry in 2012.
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Scalia and the three other right-wing justices who sought to strike
down health-care reform cited no less an authority on the Constitution
than one of its key Framers, Alexander Hamilton, as supporting their
concern about the overreach of Congress in regulating commerce.
In their angry dissent on
June 28, 2012, the four wrote: “If Congress can reach out and command
even those furthest removed from an interstate market to participate in
the market, then the Commerce Clause becomes a font of unlimited power,
or in Hamilton’s words, ‘the hideous monster whose devouring jaws . .
. spare neither sex nor age, nor high nor low, nor sacred nor
profane.’” They footnoted Hamilton’s Federalist Paper No. 33.
That sounds pretty authoritative, doesn’t it? Here’s
Hamilton, one of the strongest advocates for the Constitution, offering a
prescient warning about “Obamacare” from the distant past of 1788.
Except that Scalia and his cohorts are misleading you. In effect, they
turned Hamilton’s observation inside out.
In Federalist Paper No. 33, Hamilton was not writing
about the Commerce Clause. He was referring to clauses in the
Constitution that grant Congress the power to make laws that are
“necessary and proper” for executing its powers and that
establish federal law as “the supreme law of the land.”
Hamilton also wasn’t condemning those powers, as
Scalia and his friends would have you believe. Hamilton was defending
the two clauses by poking fun at the Anti-Federalist alarmists who had
stirred up opposition to the Constitution with warnings about how it
would trample America’s liberties. In the cited section of No. 33,
Hamilton is saying the two clauses had been unfairly targeted by
“virulent invective and petulant declamation.”
It is in that context that Hamilton complains that the
two clauses “have been held up to the people in all the exaggerated
colors of misrepresentation as the pernicious engines by which their
local governments were to be destroyed and their liberties exterminated;
as the hideous monster whose devouring jaws would spare neither sex nor
age, nor high nor low, nor sacred nor profane.”
In other words, Scalia and the three other
right-wingers did not only apply Hamilton’s comments to the wrong
section of the Constitution but reversed their meaning. Hamilton was
mocking those who were claiming that these clauses would be “the hideous
monster.”
Twisting the Framers
It is ironic indeed that Hamilton’s words, countering
alarmist warnings from his era’s conservatives, would be distorted by
this era’s conservatives to spread new alarms about the powers of the
Constitution.
Scalia’s distortion also underscores a larger tendency
on the Right to fabricate a false founding narrative that transforms
key advocates for a strong central government – the likes of Alexander
Hamilton and James Madison – into their opposites, all the better to fit
with the Tea Party’s fictional storyline.
Of course, Scalia’s deception would be an easy sell to
typical Tea Party advocates, whose certainty about their made-up
history would be reinforced as they pretend to stand with the Framers,
complete with tri-corner hats from costume shops and bright-yellow
“Don’t Tread on Me” flags.
Indeed, the Scalia-authored dissent reads more like a Tea Party manifesto than a carefully reasoned legal argument. The dissent sees the Affordable Care Act, which seeks to impose some rationality on America’s chaotic health-insurance system, as a step toward a despotic scheme that would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”
Indeed, the Scalia-authored dissent reads more like a Tea Party manifesto than a carefully reasoned legal argument. The dissent sees the Affordable Care Act, which seeks to impose some rationality on America’s chaotic health-insurance system, as a step toward a despotic scheme that would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”
Some Supreme Court watchers even suspect that it may
have been Scalia’s intemperate tone that pushed Chief Justice John
Roberts from a position of initially rejecting the Affordable Care Act
outright as an unconstitutional use of the Commerce Clause to supporting
its constitutionality under congressional taxing powers.
The four more liberal justices endorsed the law’s
constitutionality under the Commerce Clause but also joined with Roberts
on his tax conclusion, thus upholding the law and sending Scalia and
his three right-wing cohorts – Anthony Kennedy, Clarence Thomas and
Samuel Alito – into a further paroxysm of rage.
What becomes clear in reading the dissent is that not
only do the right-wing justices misrepresent the views of the Framers
regarding the Commerce Clause, these justices misunderstand a central
reality of why the Framers wrote the Constitution in 1787. The Framers
junked the states-rights-oriented Articles of Confederation in favor of
the Constitution because they wanted to solve the nation’s problems.
Founding Pragmatists
Led by James Madison and George Washington, the
drafters of the Constitution crafted a profoundly pragmatic document,
filled not only with political compromises to pull together the 13
squabbling states but looking for practical solutions to address the
challenges of a new, sprawling and disparate nation.
The Commerce Clause, which grants Congress the power
to regulate interstate commerce, was not some afterthought but rather
one of Madison’s most cherished ideas, as Justice Ruth Bader Ginsburg
noted in her opinion on behalf of the Court’s four more liberal members.
Citing a 1983 ruling entitled EEOC v. Wyoming,
Ginsburg noted that “the Commerce Clause, it is widely acknowledged,
‘was the Framers’ response to the central problem that gave rise to the
Constitution itself.’”
That problem was a lack of national coordination on
economic strategy, which hindered the country’s development and made the
nation more vulnerable to commercial exploitation by European powers,
which looked to divide and weaken the newly independent United States.
Ginsburg wrote: “Under the Articles of Confederation,
the Constitution’s precursor, the regulation of commerce was left to the
States. This scheme proved unworkable, because the individual States,
understandably focused on their own economic interests, often failed to
take actions critical to the success of the Nation as a whole.”
The Articles of Confederation, which governed the
country from 1777 to 1787, had explicitly asserted the “independence”
and “sovereignty” of the 13 individual states, making the central
government essentially a supplicant to the states for necessary
financial support.
After watching the Continental Army suffer when the
states reneged on promised funds, General Washington felt a visceral
contempt for the concept of sovereign and independent states. He became a
strong supporter of Madison’s idea of a stronger central government,
including one with the power to regulate commerce.
In 1785, Madison proposed a Commerce Clause as an
amendment to the Articles, with Washington’s strong support. “We are
either a united people, or we are not,” Washington wrote. “If the
former, let us, in all matters of a general concern, act as a nation
which have national objects to promote, and a national character to
support. If we are not, let us no longer act a farce by pretending it to
be.”
Alexander Hamilton, who had served as Washington’s
chief of staff in the Continental Army, explained the commerce problem
this way: “[Often] it would be beneficial to all the states to
encourage, or suppress, a particular branch of trade, while it would be
detrimental . . . to attempt it without the concurrence of the rest.”
Madison himself wrote, regarding the failings of the
Articles, that as a result of the “want of concert in matters where
common interest requires it,” the “national dignity, interest, and
revenue [have] suffered.”
However, Madison’s commerce amendment failed in the
Virginia legislature. That led him to seek an even more radical solution
– scrapping the Articles altogether and replacing them with a new
structure with a powerful central government whose laws would be supreme
and whose powers would extend to coordinating a strategy of national
commerce.
Building the Framework
As Madison explained to fellow Virginian Edmund
Randolph in a letter of April 8, 1787, as members of the Constitutional
Convention were gathering in Philadelphia, what was needed was a
“national Government . . . armed with a positive & compleat
authority in all cases where uniform measures are necessary.”
On May 29, 1787, the first day of substantive debate
at the Constitutional Convention, it fell to Randolph to present
Madison’s framework. The Commerce Clause was there from the start.
Madison’s convention notes
on Randolph’s presentation recount him saying that “there were many
advantages, which the U. S. might acquire, which were not attainable
under the confederation – such as a productive impost [or tax] –
counteraction of the commercial regulations of other nations – pushing
of commerce ad libitum – &c &c.”
In other words, the Founders – at their most
“originalist” moment – understood the value of the federal government
taking action to negate the commercial advantages of other countries and
to take steps for “pushing of [American] commerce.” The “ad libitum –
&c &c” notation suggests that Randolph provided other examples
off the top of his head.
Historian Bill Chapman has summarized Randolph’s point
as saying “we needed a government that could co-ordinate commerce in
order to compete effectively with other nations.”
So, from the very start of the debate on a new
Constitution, Madison and other key Framers recognized that a legitimate
role of the U.S. Congress was to ensure that the nation could match up
against other countries economically and could address problems impeding
the nation’s economic strength and welfare.
This pragmatism imbued Madison’s overall structure
even as he included intricate checks and balances to prevent any one
branch of government from growing too dominant. The final product also
reflected compromises between the large and small states over
representation and between Northern and Southern states over slavery,
but Madison’s Commerce Clause survived as one of the Constitution’s most
important features.
However, the Constitution’s dramatic transfer of power
from the states to the central government provoked a furious reaction
from supporters of states’ rights. The Articles’ phrasing about state
“sovereignty” and “independence” had been removed entirely, replaced
with language making federal law supreme.
The Anti-Federalists recognized what had happened. As
dissidents from the Pennsylvania delegation wrote: “We dissent … because
the powers vested in Congress by this constitution, must necessarily
annihilate and absorb the legislative, executive, and judicial powers of
the several states, and produce from their ruins one consolidated
government.”
Winning Ratification
As resistance to Madison’s federal power-grab spread –
and as states elected delegates to ratifying conventions – Madison
feared that his constitutional masterwork would go down to defeat or be
subjected to a second convention that might remove important federal
powers like the Commerce Clause.
So, Madison – along with Alexander Hamilton and John
Jay – began a series of essays, called the Federalist Papers, designed
to counter the fierce attacks by the Anti-Federalists against the broad
assertion of federal power in the Constitution.
Madison’s strategy was essentially to insist that the
drastic changes contained in the Constitution were not all that drastic,
an approach he took both as a delegate to the Virginia ratifying
convention and in the Federalist Papers. But Madison also touted the
advantages of the Constitution and especially the Commerce Clause.
For instance, in Federalist Paper No. 14, Madison
envisioned major construction projects under the powers granted by the
Commerce Clause. “[T]he union will be daily facilitated by new
improvements,” Madison wrote. “Roads will everywhere be shortened, and
kept in better order; accommodations for travelers will be multiplied
and meliorated; an interior navigation on our eastern side will be
opened throughout, or nearly throughout the whole extent of the Thirteen
States.
“The communication between the western and Atlantic
districts, and between different parts of each, will be rendered more
and more easy by those numerous canals with which the beneficence of
nature has intersected our country, and which art finds it so little
difficult to connect and complete.”
While ignoring Federalist Paper No. 14, today’s
right-wingers are fond of noting Madison’s Federalist Paper No. 45, in
which he tries to play down how radical a transformation, from state to
federal power, he had engineered in the Constitution.
Rather than view this essay in context – Madison
finessing the opposition – the modern Right seizes on Madison’s
rhetorical efforts to deflect the Anti-Federalist attacks by claiming
that some of the Constitution’s federal powers were contained in the
Articles of Confederation, albeit in far weaker form.
In Federalist Paper No. 45, entitled “The Alleged
Danger From the Powers of the Union to the State Governments
Considered,” Madison wrote: “If the new Constitution be examined with
accuracy, it will be found that the change which it proposes consists
much less in the addition of NEW POWERS to the Union, than in the
invigoration of its ORIGINAL POWERS.”
Today’s Right also trumpets Madison’s summation, that
“the powers delegated by the proposed Constitution to the federal
government are few and defined. Those which are to remain in the State
governments are numerous and indefinite.”
But the Right generally ignores another part of No.
45, in which Madison writes: “The regulation of commerce, it is true, is
a new power; but that seems to be an addition which few oppose, and
from which no apprehensions are entertained.”
In his ruling – joining with his fellow right-wing
justices in rejecting the application of the Commerce Clause to the
Affordable Care Act – Chief Justice Roberts does mention that line from
Federalist Paper No. 45. However, he spins Madison’s meaning into a
suggestion that the Commerce Clause should never contribute to any
controversy.
Looking to the Future
However, what Madison’s comments about the Commerce
Clause actually demonstrated was a core reality about the Framers –
that, by and large, they were practical men seeking to build a strong
and unified nation. They also viewed the Constitution as a flexible
document designed to meet America’s ever-changing needs, not simply the
challenges of the late Eighteenth Century.
As Hamilton wrote in Federalist Paper No. 34, “we must
bear in mind that we are not to confine our view to the present period,
but to look forward to remote futurity. Constitutions of civil
government are not to be framed upon a calculation of existing
exigencies, but upon a combination of these with the probable exigencies
of ages, according to the natural and tried course of human affairs.
“Nothing, therefore, can be more fallacious than to
infer the extent of any power, proper to be lodged in the national
government, from an estimate of its immediate necessities. There ought
to be a CAPACITY to provide for future contingencies as they may happen;
and as these are illimitable in their nature, it is impossible safely
to limit that capacity.”
Indeed, the Commerce Clause was a principal power that
Madison crafted to deal with commercial challenges both current to his
time and future ones that could not be anticipated by his
contemporaries. There also was a reason why the Framers made the power
to regulate interstate commerce unlimited. They wanted to invest in the
elected representatives the United States the ability to solve future
problems.
In Madison’s day, the nation’s challenges included the
need for canals and roads that would move goods to market and enable
settlers to travel westward into lands that European powers also
coveted. Always a principal concern was how European competition could
undermine the hard-won independence of the nation.
Though the Framers could not have envisioned the
commercial challenges of the modern world, American businesses remain
under intense foreign competition today, in part, because of an
inefficient health-care system that imposes on U.S. businesses the cost
of health insurance that drives up the price of American goods.
Under the current system, not only do many American
businesses pay for their employees’ health care – while most other
developed nations pay medical bills through general taxation – but U.S.
companies indirectly pick up the cost of the uninsured who get emergency
care and don’t pay.
So, a law that makes American businesses more
competitive by addressing this “free-rider” problem – and by assuring a
healthier work force – would seem to be right down the middle of the
Framers’ intent in drafting the Commerce Clause.
No Practicality
In contrasting Justice Ginsburg’s opinion on the
Affordable Care Act with Scalia’s dissent, one of the most striking
differences is how the Framers are understood: Ginsburg sees them as
pragmatic problem-solvers, while Scalia envisions them as rigid
ideologues placing individual freedom above practical goals.
The core of the Scalia-written dissent is that the
Constitution is NOT about solving problems, but rather following the
most crimped interpretation of the words. Indeed, he ridicules Ginsburg
for viewing the founding document as implicitly intended to give the
elected branches of government the flexibility to address national
challenges.
Yet, there was little question from either side that
virtually every American participates in the commerce of health care –
from birth to death – and that the health-insurance mandate in the
Affordable Care Act was intended by Congress to regulate what is clearly
a national market.
In the dissent, the four right-wing justices
acknowledged that “Congress has set out to remedy the problem that the
best health care is beyond the reach of many Americans who cannot afford
it. It can assuredly do that, by exercising the powers accorded to it
under the Constitution. The question in this case, however, is whether
the complex structures and provisions of the … Affordable Care Act … go
beyond those powers. We conclude that they do.”
Scalia noted that Ginsburg “treats the Constitution as
though it is an enumeration of those problems that the Federal
Government can address — among which, it finds, is ‘the Nation’s course
in the economic and social welfare realm,’ … and more specifically ‘the
problem of the uninsured.’
“The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The
Federal Government can address whatever problems it wants but can bring
to their solution only those powers that the Constitution confers,
among which is the power to regulate commerce. None of our cases say
anything else. Article I contains no
whatever-it-takes-to-solve-a-national-problem power.”
The right-wing justices insisted that the power to
“regulate” commerce couldn’t possibly cover something like a mandate to
buy health insurance.
Chief Justice Roberts – in his own opinion, which
rejected use of the Commerce Clause but then justified the Affordable
Care Act under the Constitution’s taxing powers – decided that some of
the definitions of the word “regulate” couldn’t be applied because they
were not the first definitions in the dictionaries of the late
Eighteenth Century.
However, in an earlier opinion upholding the
Affordable Care Act, conservative U.S. Appeals Court Judge Laurence
Silberman noted that “At the time the Constitution was fashioned, to
‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as
well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’
“In other words, to ‘regulate’ can mean to require
action, and nothing in the definition appears to limit that power only
to those already active in relation to an interstate market. Nor was the
term ‘commerce’ limited to only existing commerce. There is
therefore no textual support for appellants’ argument” that mandating
the purchase of health insurance is unconstitutional.
However, in Roberts’s ruling, the Chief Justice threw
out certain definitions for “regulate” — such as “[t]o order; to
command” — saying they were not among the top definitions in the
dictionaries of the time. Roberts wrote, “It is unlikely that the
Framers had such an obscure meaning in mind when they used the word
‘regulate.’”
Needing Health Care
Scalia and Roberts also adopted a very narrow concept
of participation in the health-care industry. Though it’s undeniable
that virtually all Americans – from birth to death – receive medical
care of various types and at different times, the Court’s five
right-wing justices treated the gaps between those events as meaning
people are no longer in the health market.
Roberts wrote: “An individual who bought a car two
years ago and may buy another in the future is not ‘active in the car
market’ in any pertinent sense. The phrase ‘active in the market’ cannot
obscure the fact that most of those regulated by the individual mandate
are not currently engaged in any commercial activity involving health
care, and that fact is fatal to the Government’s effort to ‘regulate the
uninsured as a class.’”
But, as Ginsburg noted in her opinion, this comparison
is off-point, because a person can plan for the purchase of a car but
often is thrust into the medical industry by an accident or an
unexpected illness.
Over and over again, the five right-wing justices
behaved as if they started out with a determination to reject a
constitutional justification under the Commerce Clause and then dreamt
up legal wording to surround their preconceived conclusion. In doing so,
they treated the Constitution as some finicky legal document rather
than what the Framers had intended, a vibrant structure for solving
national problems.
And, as for the Framers’ views regarding mandating
American citizens to buy a private product, one can get a good idea of
their attitude by examining the actions of the Second Congress in
passing the Militia Acts, which mandated that every white male of
military age buy a musket and related supplies. That Congress included
actual Founders, such as James Madison. The law was signed by George
Washington, another Founder. [See Consortiumnews.com’s “The Founders’ Musket Mandate.”]
So, despite what today’s Right wants you to believe,
the Framers were not hostile to a strong central government; they were
not big advocates of states’ rights; they were not impractical
ideologues contemplating their navels or insisting on some
hair-splitting interpretation of their constitutional phrasing.
Rather, they were pragmatic individuals trying to
build a nation. They wrote the Constitution specifically so the country
could address its pressing problems – and match up competitively with
America’s foreign rivals. Since Justices Scalia, Kennedy, Thomas and
Alito don’t have this real history on their side, they apparently saw
little option but to make up their own.
Investigative reporter Robert Parry broke many of
the Iran-Contra stories for The Associated Press and Newsweek in the
1980s. You can buy his latest book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).
You also can order Robert Parry’s trilogy on the Bush Family and its
connections to various right-wing operatives for only $34. The trilogy
includes America’s Stolen Narrative. For details on this offer, click here.
Comments
+57
#
2016-02-14 15:42
Thank you Mr. Parry
for stating clearly that the purpose of the Constitution was to
STRENGTHEN the Federal Government. This fact has been so obscured that
it is not only the right-wing that has internalized the fiction that it
was (and is) all about individual and State “liberty.”
I find that a useful framework to understand these “originalists” who pretend to channel the intentions of long-dead Framers is the concurrent creation of “originalist/fu ndamentalist” religious beliefs.
In both cases, they see their ancient, Holy Scriptures as remains of the Perfect Word of Enlightened Prophets. These Scriptures are believed to reflect a More Perfect World, being closer to The Source of All Righteousness.
Starting from that fallacy of a past time that was closer to an imagined Eden, peopled with individuals who more perfectly understood humanity’s True Soul and Purpose, these “originalists” and the similar religious “fundamentalist s” seek to reestablish societies that never existed as they imagine them.
And just like the Fundamentalists , these Constitutional Originalists cherry-pick verses to support their pre-existing ideologies, and have no problem in duplicitously misrepresenting both the context and even the actual preserved writing and historicity of the people they pretend to emulate. They seek to “reestablish” modern inventions of the social structures they created and experienced.
I find that a useful framework to understand these “originalists” who pretend to channel the intentions of long-dead Framers is the concurrent creation of “originalist/fu ndamentalist” religious beliefs.
In both cases, they see their ancient, Holy Scriptures as remains of the Perfect Word of Enlightened Prophets. These Scriptures are believed to reflect a More Perfect World, being closer to The Source of All Righteousness.
Starting from that fallacy of a past time that was closer to an imagined Eden, peopled with individuals who more perfectly understood humanity’s True Soul and Purpose, these “originalists” and the similar religious “fundamentalist s” seek to reestablish societies that never existed as they imagine them.
And just like the Fundamentalists , these Constitutional Originalists cherry-pick verses to support their pre-existing ideologies, and have no problem in duplicitously misrepresenting both the context and even the actual preserved writing and historicity of the people they pretend to emulate. They seek to “reestablish” modern inventions of the social structures they created and experienced.
+46
#
2016-02-14 15:44
Looking at all the
times and places that these sorts of specious “originalist” beliefs
arise, it appears to always come from peoples who feel their traditional
and higher status is being challenged by forces of modernity.
This is as true of the mostly white, economic elite Constitutional “originalists” who see racial and social equality as a threat, as it is of the mostly Muslim populations under actual political control and even deadly attacks from Empire and the Christianists and fanatical Jews who use these deep, emotionally charged arguments to rationalize their assaults on “the other.”
Perhaps through understanding causes, we can mitigate effects.
This is as true of the mostly white, economic elite Constitutional “originalists” who see racial and social equality as a threat, as it is of the mostly Muslim populations under actual political control and even deadly attacks from Empire and the Christianists and fanatical Jews who use these deep, emotionally charged arguments to rationalize their assaults on “the other.”
Perhaps through understanding causes, we can mitigate effects.
+32
#
2016-02-14 18:23
Not much I can add to
that. Such fantasy and distortion almost constitute a definition of the
term "conservative" as it is used in public discourse today.
