Is The Constitution Really So Cryptic? | The Odyssey Online
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Politics and Activism

Is The Constitution Really So Cryptic?

Or are Republicans and Democrats playing dumb?

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Is The Constitution Really So Cryptic?
Wikipedia

The United States Constitution was written in the 1780s, debated by old white men, ratified by an old-fashioned population, so it seems foreign to people today. Political liberals say expand it, political conservatives say listen to supreme court justices.

The commerce clause means the federal government can regulate anyone's business if it crosses state lines; the necessary and proper clause means the federal government can pass any law as long as it deems needed to execute its duties; and the general welfare clause means the federal government can transfer wealth from one group to another.

At least all of the above is what political liberals and conservatives claim with these three famous clauses. Are they correct?

According to article I, section VIII, clause I of the U.S. Constitution, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;" also known as "the general welfare clause."

Click here for the full text of the Constitution.

Clause III of the same section, Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This is also known as "the commerce clause."

While the section's clause XVIII states Congress shall have power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." This is also known as "the necessary and proper clause."

These three clauses are found in the section nicknamed the "enumerated powers" of Congress. And all three have very specific meanings, not cryptic to those who understand the English language.

The English dictionary used by the founders can be found here.

The definitions used by the founding generation was from the 1785 edition of Samuel Johnson's Dictionary of the English Language, which defined "commerce" as "exchange of one thing for another" or "trade." By definition, creating or producing things in and of themselves are not commerce. In fact, during the constitutional convention in Philadelphia, per James Madison's notes, the term "commerce" was only used to mean trade.

Visit Yale Law School's Avalon Project for Madison's notes.

Even the nationalist Alexander Hamilton defined commerce this way in his speeches and writings, something Madison agreed with him in the Federalist Papers. See, specifically, federalist papers 11, 12, 17, and 35.

Refer to the text of the Federalist Papers.

This was also the definition used during the ratification conventions. Though the nationalists (a.k.a., the federalists) intended the federal government to control the national economy, they did not codify it in the constitution nor made such arguments in the conventions that ratified the new code of law.

This was especially true in Virginia, where commerce was argued the most. Richard Henry Lee and Edmund Randolph not only reiterated the definition of commerce, but specifically distinguished it from other economic activities. Even the nationalist, and chief justice of the U.S. supreme court, John Marshall did not imply "commerce" meant anything other than trade. His majority opinion in the 1824 case Gibbons v Ogden also defines "commerce" as trade.

For a glimpse into the debate notes of the ratification conventions, refer to Elliot's volumes on the topic.

The phrasing "among the several States" in this clause, per James Madison in Federalist 42, means people of different states. Meaning, Congress can regulate commerce if it is between individuals in one state trading with individuals in another. Agriculture, manufacture, art, and other economic activities not considered "commerce," could cross state lines without interference from the federal government.

But what does "to regulate" mean? Samuel Johnson defines "to regulate" as "1. To adjust by rule or method" and "2. To direct." In other words, to make regular. It does not mean to prohibit; if it did then the other uses of the word in the constitution would seem odd.

Life under the country's first constitution, the Articles of Confederation, included the states raising tariffs against each other. The founders, as argued in Philadelphia and during the ratification debates, sought to prohibit states from doing this.

"To direct" is not what the founders intended, given there are instances in both the constitution itself and by the founders in debates that distinguish "regulation" and "government."

In federalists 4 and 53, John Jay and Madison respectively, compared regulating commerce with regulating militias. By their accounts, and these explanations were accepted by the ratification conventions, the federal government lacks authority to tell people what to do when trading.

When the anti-federalists voiced concerns that the federal government would misinterpret the commerce clause, the federalists, during these ratification conventions, argued that it would not and could not.

Textually and otherwise, the necessary and proper clause simply means that Congress can pass laws as long as they executive the enumerated powers vested to it. As even Chief Justice Marshall stated in McCulloch v Maryland, "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal...to say that such an act was not the law of the land."

This clause does not mean, in any way shape, form, or fashion, Congress can pass any law it wants. Such a sweeping clause would render the entire constitution void. A point the anti-federalists often made, much to the dismissal of the federalists.

The general welfare clause, Madison fiercely argued in Federalist 41, is not to be construed to mean the federal government can do as it pleases in the name of either national defense or the general welfare.

Madison also reminded the people that under the Articles of Confederation similar language was never interpreted to be a sweeping clause. And that under the new constitution, as he also argued in the ratification debates, the clause does not delegate carte blanche power to Congress - an argument he also argues about the commerce and necessary and proper clauses.

Refer to the text of the Articles: http://avalon.law.yale.edu/18th_century/artconf.as...

Years after his presidency, Thomas Jefferson wrote a letter to his and Madison's treasury secretary Albert Gallatin, who was serving as an ambassador during the time. In the letter he echoed his previous objections of the wording of the clause, decrying it "mere grammatical quibble." Jefferson was one of the anti-federalists who argued the abuse of power under the new constitution, which Madison and Hamilton assured couldn't be construed that way.

Jefferson's letter to Galltin: http://press-pubs.uchicago.edu/founders/print_docu...

The fact is, during the ratification debates and the Federalist Papers, Madison, Jay, and Hamilton argued the general welfare clause only meant that taxing and spending was tied to the enumerated powers. The reasoning was because Congress under the Articles did not have the power to tax the people or the states, and they argue that was a cause of the turmoil post-Revolution.

Using the words of the founders of the United States of America themselves, via the Federalist Papers and constitutional and ratification conventions notes, it is obvious what the meanings of the clauses are. But political liberals and conservatives pretend the supreme law of the land is cryptic.

Other provisions commonly misinterpreted, despite the fact the founders made the interpretations clear, include the naturalization clause, the supremacy clause, the faithfully execution clause, the war clause, the natural-born citizen clause, and the first, second, fourth, fifth, eighth, ninth, and tenth amendments.

Click here for the full text of the Bill of Rights.

If people refuse to understand basic language of the laws of their own country, they are lawless. The U.S. Constitution is not hard to understand, it is easy to interpret it the way it was ratified. It is just that people pretend to not understand, possibly to avoid obligation to follow it.

"But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist." - Lysander Spooner, No Treason: the Constitution of No Authority, 1870


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