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Wednesday, November 28, 2012

Monolithic Framers And Their Framework

Picking up on recent discussion, one of the things that bothers me the most about learned-albeit-wrong people like Scalia and Gingrich, and ignorant-albeit-passionate people like Paul, his Istas, and similar glib dillettantes, is their steadfast assurance that there is only one way to interpret a very nuanced document and that the very nuanced thought of the men who wrote it was similarly singular.  

These guys disagreed about Independence.  They disagreed about things like legal tenderwar powers, and compensating government officials during the Constitutional Convention.  They disagreed during the ratification process and through the birth of our new government.

They disagreed in the First Congress about constitutionality of a national bank.  During the debate you had people like John Vining, who served in the Articles Congress and saw firsthand the need for stronger centralized government, Fisher Ames, who was a member of MA's ratification convention, William Giles, who supported the Constitution during ratification, and none other than James Madison, Father of the Constitution.  The first two men were "pro-Administration" (ultimately Federalist) and the latter were "anti-Administration" (proto-Democratic-Republican).

They argued quite a bit coming from different vantage points, and eventually the Federalist side won the day, with some begrudging acknowledgement of their point.  Madison:

[W]ould not...dwell any longer on the constitutionality of the plan under consideration, but would only observe that no power could be exercised by Congress, if the letter of the Constitution was strictly adhered to, and no latitude of construction allowed, and all the good that might be reasonably expected from an efficient government entirely frustrated.

This all took place in the context of the Necessary and Proper Clause (or "sweeping clause" as Ames put it), which Sedgwick observed.  I've run into some people who wring their hands about the potential slippery slope if we could use this to justify ANYTHING.  I say, well...yeah, then point to Gibbons v Ogden (1824), decided by the Marshall Court: 

It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution....If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States.

The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are...the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.

The People are a branch of government, and we must exercise our own powers in limiting what our representatives do in our name.  Voting is a part of that, as are petitions and other political acts between elections.

And we, as did the Framers and all other generations before us, disagree on things.


November 28, 2012 in Constitution, Schmonstitution | Permalink


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Literalism is, I think, how demagogues try to correct for the ambiguities of text and time to claim spurious authorities for insupportable, usually self-serving interpretations of contested texts.

Posted by: Dr. Woody | Nov 28, 2012 9:21:12 PM

And I say "hear, hear!" to this post.

The literalism schtick is one of those "stupid rhetorical tricks", often used by conservatives to justify their talking point of the day.

Another one is "absolute morality" (mostly in terms of accusing everyone else of "relativism"). But try pinning them down, it can be fun when they try to get their "absolute morality" without reference to a religious text (from a different time and culture, with serious translation issues), and whether "absolute" means "universal, time-invariant". (Slavery in 2012=bad, slavery in 1861 = ?, slavery in bible = ???)

Posted by: Snarki, child of Loki | Nov 29, 2012 10:32:34 AM

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