Celebrating James Madison
Two hundred and sixty years ago, James Madison was born in Virginia. His life was long and eventful, comprising the American Revolution, the writing and ratification of the U.S. Constitution, the founding of political parties, the War of 1812, and the rise of Andrew Jackson. The struggles that would culminate in the Civil War were evident in the last years of his life.
Along with his political career, Madison proved to be one of this nation’s most insightful and certainly its most influential political theorist. He is often accorded the twin titles of Father of the Constitution and the Bill of Rights. No doubt those titles claim too much for him or any other mortal. But according him those titles is not far from the truth.
What would surprise Madison about our current constitutional and political arrangements?
He would be surprised and, I think, displeased by the size and scope of the federal government. Madison was a limited government man. He thought the general welfare clause in Article I of the Constitution was simply a shorthand way of mentioning other enumerated powers, not a general grant of power for Congress to pursue whatever it might think served the general welfare. As he wrote, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.” Of course, for some decades now, the courts have permitted Congress broad powers under the general welfare clause.
He would also be taken aback by the all but plenary power accorded to Congress under the Commerce Clause of Article I. How could (can) a limited government be reconciled to such plenary power? Moreover, as he said in Congress, “if industry and labour are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point out.”
I think Madison would also be surprised by how far the executive has taken on the prerogatives of an English king, in fact if not in law. Like many republicans of the founding era, he worried that the legislature would dominate the executive. We live in a time where Congress happily delegates its power to the executive branch and awaits the executive’s budget agenda. At the same time, Madison worried that executives, presidents and kings, had every reason to declare and make war, the latter being the most dreaded of “all enemies to public liberty.” As he wrote in 1795:
Of all the enemies to public liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds are added to those of subduing the force of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes and the opportunities of fraud growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could reserve its freedom in the midst of continual warfare.
In this light, it is perhaps inevitable that the authors of The Executive Unbound dismiss Madison in favor of Carl Schmitt, the author of The Concept of the Political and from 1933 onward, Preußischer Staatsrat and President of the Vereinigung nationalsozialistischer Juristen.
For Madison, the whole point was to bind government through a Constitution, enumerated powers, and ambition pitted against ambition. His was a noble vision of politics in service to individual liberty. Let us hope that we are not living “after the Madisonian Republic.”
No to No-Fly Zones
My Washington Examiner column this week is on the growing drumbeat for military action in Libya. That allegedly serious people are proposing, as Defense Secretary Gates puts it, “the use of the US military in another country in the Middle East,” ought to be appalling. If the last ten years haven’t convinced you that a little prudence and caution might serve us well in foreign policy, what would?
Recently Senators John McCain (R-AZ) and Joe Lieberman (I-CT), the Bobbsey Twins of knee-jerk interventionism, chastised Obama for dragging his feet on the path toward war. They called for arming the rebels and implementing a no-fly zone, for starters.
“I love the military,” Sen. McCain complained “but they always seem to find reasons why you can’t do something rather than why you can.” Alas, “can’t is the cancer of happen,” as Charlie Sheen reminded us recently.
Even so, I argue in the column, there are good reasons to resist the call for this supposedly “limited” measure.
But let’s stipulate that NATO warplanes (mainly U.S. fighters, of course) could deny pro-Gadhafi forces the ability to deploy air power. That would not impede their ability to murder on the ground. What then?
NATO flew more than 100,000 sorties in Operation Deny Flight, the no-fly zone imposed over Bosnia from 1993 to 1995, yet that wasn’t enough to prevent ethnic cleansing or the killing of thousands of Bosnians in the 1995 Srebrenica massacre.
It did, however, help pave the way for a wider war and a 12-year nation-building mission. In for a penny, in for a pound — intervention tends to have a logic of its own.
This is a good occasion, then, to reflect on a fundamental question: What is the U.S. military for? Humanitarian interventionists on the Left and the Right seem to view it as an all-purpose tool for spreading good throughout the world — something like the “Super Friends” who, in the Saturday morning cartoons of my youth, scanned the monitors at the Hall of Justice for “Trouble Alerts,” swooping off regularly to do battle with evil.
Our Constitution takes a narrower view. It empowers Congress to set up a military establishment for “the common defence … of the United States,” the better to achieve the Preamble’s goal of “secur[ing] the Blessings of Liberty to ourselves and our Posterity.” Armed liberation of oppressed peoples the world over wasn’t part of the original mission.
Funny enough, when he first got to Washington, John McCain occasionally appreciated the virtues of foreign policy restraint. As Matt Welch recounts in his book McCain: The Myth of a Maverick: “In September 1983, as a freshman congressman and loyal foot soldier of the Reagan revolution, John McCain voted against a successful measure to extend the deployment of US Marines in war-torn Lebanon.” In a speech on the House floor, McCain argued that “The fundamental question is, what is the United States’ interest in Lebanon?…. The longer we stay in Lebanon, the harder it will be for us to leave.”
Later, Welch writes that, in 1987, when President Reagan reflagged Kuwaiti oil tankers in the Persian Gulf, offering them “US Navy protection against a threatening Iran, McCain was livid.” He took to the pages of the Arizona Republic to complain that the move was “a dangerous overreaction in perhaps the most violent and unpredictable region in the world…. American citizens are again be asked to place themselves between warring Middle East factions, with…. no real plan on how to respond if the situation escalates.”
It’s been a long time since Senator McCain made such good sense on foreign policy.
Arrested for Pamphlets
The feds are seeking to jail 78-year old Julian Heicklen for distributing pamphlets. Heicklen knows that jurors are supposed to be able to vote their conscience in criminal cases — so he distributes pamphlets on that subject near the federal courthouse. The feds are evidently worried about the contents of those pamphlets and assert that Heicklen’s conduct amounts to “jury tampering.” But if Heicklen just gave the pamphlets to anyone and everyone, as he claims, without attempting to sway the outcome of any particular case, his conduct is free speech, plain and simple. Heicklen should get a jury trial to fight the free speech violation — since our Constitution says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” but prosecutors are going to invoke wrongheaded precedents that say this case can be tried before a judge, not a jury. Oh, and the police arrested another guy for simply videotaping Heicklen’s arrest. No pamphlets, no photography, no jury trial.
Cato co-published a book in defense of jury nullification in 1998. More here and here. (I am betting that books, blog posts, and law review articles are still legal should this post reach readers in New York City, but we’ll see about that.)
The Non-Defense of DOMA
The Obama Administration’s decision to stop defending DOMA in the courts has provoked some widespread commentary. Jim Burroway hints that Obama’s strategy here is both deep and cynical. Obama’s locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.
The mood is anti-spending, and it’s just possible that a government shutdown scares Obama even more than it scares the Republicans. The remedy? Change the subject. Make Republicans in Congress defend their stance on gay marriage, which is so not the discussion they’d like to be having.
It could be one of the first instances in which gay marriage counts as a wedge issue against Republicans, rather than for them. Opposing same-sex marriage appeals strongly to a smallish base. To the center, the whole subject is distasteful either way, and they don’t mind if Obama drops it. Finally, more and more people just find the conservatives embarrassing here. Obama sees no need to do their dirty work for them, especially when the work really is that dirty.
Meanwhile, Orin Kerr is worried about executive power:
By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.
If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.
Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?
There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. One is about policy; the other is about procedure. Deciding a procedural question based on what it means for a one-time policy outcome is just bad governance. The questions we should be asking are — How much power would this really give the president? Is this a particularly new power? (Arguably it’s not.) And in any case, are we comfortable with the president having it, even if he or she has radically different views about policy?
When we look at it that way, there’s a near-perfect parallel to the perennial debate over the filibuster. Everyone hates it when they’re in the majority. Everyone loves it when they’re in the minority. Politics really is the mind-killer.
My Favorite Constitutional Right
Both the Washington Post and NPR refer to the Tenth Amendment as a “tea party favorite.” I would have thought that tea partiers — and most of the rest of us — liked all 10 of the Bill of Rights, and indeed the rest of the Constitution as well. Now, sure, I guess if the ACLU could publish (in the 1970s or 1980s) the poster below, an “illustrated guide to the Bill of Rights” featuring only the First, Fourth, Fifth, Sixth, Eighth amendments (and only parts of those), along with the Fourteenth, Fifteenth, and Nineteenth amendments, which are not part of the Bill of Rights — well, then, I guess the Tea Party is entitled to have its own favorite parts of the Bill of Rights. But then, it was NPR and the Washington Post, not tea partiers, who suggested that the Tenth Amendment was perhaps uniquely a “tea party favorite.” I would urge the ACLU, the Tea Party, and all other Americans who care about freedom to consider the entire Constitution a “favorite.” Of course, the Tenth Amendment is pretty crucial, reminding policymakers that the federal government does not have any powers not delegated to it in the Constitution.
Sen. Paul and the Writs of Assistance
Senator Rand Paul is moving beyond economic issues. His critique of the Patriot Act may be found here.
Sen. Paul lauds James Otis, Jr, the most important opponent of the writs of assistance imposed by the British prior to the American Revolution. By invoking the name of this great patriot, Sen. Paul is trying to recall for Americans the original meaning of our Revolution and Constitution. He is practicing a politics of the original public meaning of America.
An astonishing performance.
Four Reasons Why Big Government Is Bad Government
A new video from the Center for Freedom and Prosperity gives four reasons why big government is bad fiscal policy.
I particularly like the explanation of how government spending undermines growth by diverting labor and capital from the productive sector of the economy.
Some cynics, though, say that it is futile to make arguments for good policy. They claim that politicians make bad fiscal decisions because of short-term considerations such as vote buying and raising campaign cash and that they don’t care about the consequences. There’s a lot of truth to this “public choice” analysis, but I don’t think it explains everything. Maybe I’m an optimist, but I think we would have better fiscal policy if more lawmakers, journalists, academics, and others grasped the common-sense arguments presented in this video.
And even if the cynics are right, we are more likely to have good policy if the American people more fully understand the damaging impact of excessive government. This is because politicians almost always will do what is necessary to stay in office. So if they think the American people are upset about wasteful spending and paying close attention, the politicians will be less likely to upset voters by funneling money to special interests.
For those who want additional information on the economics of government spending, this video looks at the theoretical case for small government and this video examines the empirical evidence against big government. And this video explains that America’s fiscal problem is too much spending rather than too much debt (in other words, deficits are merely a symptom of an underlying problem of excessive spending).
Last but not least, this video reviews the theory and evidence for the “Rahn Curve,” which is the notion that there is a growth-maximizing level of government outlays.
Obamacare Ruling Expected, Correct
Judge Vinson’s ruling today that Obamacare’s individual mandate is unconstitutional, following on the heels of Judge Hudson’s similar ruling in the Fourth Circuit, should give the new Congress all the confidence it needs to rescind this provision and more. Indeed, the idea that government could order a person to buy a product from a private vendor, or be fined for failing to do so, is so foreign to our Constitution for limited government that it’s a wonder that Congress ever imagined it had such a power to begin with.
The Congress that passed Obamacare is now gone. It will be an early test for members of the new Congress, including those many Senate Democrats up for reelection in 2012, whether they will study these well-reasoned opinions and come to a better understanding of the constitutional limits on their power. There are far better, more constitutional ways to enable Americans to obtain health care than through the massive government intrusion into the healthcare market that Obamacare ordered. There is nothing quite like a little freedom to enable Americans to solve their own problems.
Government Health Care in 1798
The 1798 ”Act for the Relief of Sick and Disabled Seaman” is getting attention in the Washington Post and Forbes. The stories suggest that this act in the early republic was a precedent for socialized federal medicine today.
I offered this brief description of the law as part of a timeline on the evolution of the federal Department of Health and Human Services over at www.downsizinggovernment.org:
1798: Congress passes the Act for the Relief of Sick and Disabled Seamen. It provides health services to members of the merchant marine and funds a loose network of hospitals through the Marine Hospital Fund. The MHF is plagued by cost overruns, administrative mismanagement, and rationing of care. Some leaders oppose the new federal subsidies as an abuse of state sovereignty.
My timeline entry has footnotes to sources for those statements.
On the politics of this, note that John Adams, who signed the bill into law as president, was on the “big government” end of the Founders, and his big-government approach in office in the 1790s–like signing the Alien and Sedition Acts–led to the ouster of the Federalists by Thomas Jefferson in 1800. (Nonetheless, Adams was, of couse, a hero of the Revolution and a truly great man).
Cite the Constitutional Authority or the Lack Thereof!
A new House rule requires that every new bill or joint resolution introduced in the House include a statement citing the specific powers in the Constitution granted to Congress to enact the proposed law. In the absence of such a statement, the clerk of the House will not accept the bill and it will be returned to the sponsor.
This new rule may have two potentially valuable effects:
- For some time, this rule may have a valuable educational effect, reminding new House members, returning members, and the public that Article 1, Section 8 of the Constitution authorizes only 18 federal powers – far fewer than the powers that the federal government has assumed, especially during the past 75 years.
- The constitutional citations for House bills that are approved would be part of the legislative record that the Supreme Court may consider in subsequent litigation bearing on the constitutionality of Acts of Congress.
This rule, however, is also likely to have two potentially negative effects:
- This rule, by limiting new legislation to federal activities for which there is express or implied authority in the Constitution, would severely limit the potential of Congress to exercise legislative authority over the many current federal activities for which there is no such authority.
- In the absence of authority in the Constitution for many types of current federal activities or others that Congress may wish to approve, Congress – like the Supreme Court – is likely to rationalize their judgments by elastic interpretations of the general welfare clause, the interstate commerce clause, or the necessary and proper clause.
An alternative interpretation of this new rule, however, would maintain its potentially valuable effects, maintain the potential for Congress to exercise legislative authority over federal activities for which there is no authority in the Constitution, and avoid the equivocation that is characteristic of statements about the powers of the federal government for which there is no authority in the Constitution: A new bill should be cleared for a vote when accompanied by a statement that identifies either the constitutional authority for the federal activities addressed by the bill or the lack thereof. In the latter case, a statement such as the following should be sufficient for the House clerk to clear a bill for a vote:
There is no authority in the Constitution for the federal activities addressed by this bill. For such time as any relevant constitutional issues are not resolved and the measures addressed by this bill remain in force as positive law, we accept the responsibility to assure that this activity is administered efficiently and fairly and to propose changes that would better serve the American people.
This alternative interpretation of the new rule would increase the opportunity for members of Congress to express their views about the constitutional issues bearing on the powers of the federal government but would maintain their potential to legislate. It is important to maintain an effective separation of powers within the federal government. Congress does not have an impressive record as a legislature, but it would be a lousy constitutional court.
Majority of States for Repeal Too
It’s now official: 28 states are challenging the constitutionality of Obamacare in the courts. For those of you keeping score, the following six joined the Florida-led lawsuit: Ohio, Wisconsin, Iowa, Kansas, Wyoming and Maine. Then of course Virginia is pursuing its own suit, and now Oklahoma is about to file its own separate lawsuit based on its voters’ approval in November of a Health Care Freedom Act similar to Virginia’s.
Sadly — if I’m allowed to stop being hard-headed and just shake my head in an “o tempore o mores” sort of way — the government opposed Florida’s motion to add the six states to its lawsuit. There was no basis for this opposition: the newcomers are for these purposes similarly situated to the existing plaintiff states and raise no new legal arguments.
The district judge, Roger Vinson — who is expected to release an opinion shortly striking down at least parts of Obamacare — saw through the government’s cynical ploy. He granted the simple joinder motion the day after it was filed and without waiting for a formal reply from the Department of Justice, saying “…I can imagine no prejudice that could inure to the defendants in granting the plaintiffs’ motion, as the second amended complaint changes nothing in the case except for the caption and style, and will not delay its resolution. Indeed, because of this, I will relieve the defendants of the obligation to file an answer to the new complaint and will regard their previously-filed answer as an answer to the new complaint as well.”
This train is picking up steam, folks. But at least one political question remains: Why hasn’t New Jersey Governor Chris Christie, darling of the Tea Parties and all who like plain-speaking politicians, climbed aboard?
The Constitutional Vision of The New York Times, Again
What is it about the editorialists at The New York Times? Again today they’re ridiculing the decision by the new House to begin its business yesterday by reading the Constitution aloud. On Tuesday, with great pomposity themselves, the editors called the anticipated reading “a theatrical production of unusual pomposity.” Then in a nasty little editorial today entitled “The United States Consti …tion” — that’s not a typo; that’s their headline — they criticize House leaders for deciding not to read the “obsolete or offensive” parts of the document that are no longer law due to subsequent amendment. The Constitution was read, that is, as it exists today, which hardly seems surprising.
But it’s far more than surprising to the Times, apparently, because this “rewriting of history” deprives us of yet another opportunity to wallow in the unpleasant episodes of our past, as the Times and its followers so love to do — American unexceptionalism and all. Indeed, those offensive provisions “were written by a group of men that many in the Tea Party and elsewhere seem to consider infallible and nearly divine.”
It’s hard to make this stuff up; you have to simply quote it. Which brings us to the point of the editorial: What really troubles the Times, you see, is that Republican leaders “missed a chance to demonstrate that this document is not nailed to the door of the past. It remains vital precisely because it can be reimagined.” Well, yes, we have “reimagined” the Constitution from time to time — by amendment. But that’s not quite what the Times has in mind. No, the editors grant that the Constitution “was a work of political genius” (despite those offensive parts?), but “largely because its authors handed its interpretation to the open minds of posterity.” Through amendment? Well, not entirely, or even mainly, in today’s context. In their Tuesday piece, they revealed their hand — hardly a surprise — when they spoke of constitutional text “that the founders wisely left open to generations of reinterpretation.”
So it’s not just by amendment that we change our fundamental law: that’s how the Civil War generation removed offensive parts, legitimately; and that’s how women got the vote. But there’s another way to amend the Constitution, too — by “reinterpreting” its text. That’s how the New Dealers did it, as I discussed in this space yesterday and have more fully elsewhere. After Roosevelt’s infamous Court-packing threat, a cowed Supreme Court turned the Constitution on its head: by reading shields against power as swords of power; by turning a Constitution for limited government into one of virtually unlimited government. That’s fine with the Times. It’s not with the people the Tea Party sent to Washington, and that’s why the Times has them in its sights. What the Times champions is not constitutionalism. It’s politics. They won’t say it. We will.
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
