Identifying the Gaps

by Berry Muhl

Making good on my earlier threat to present a nine-part series on the Constitution, I now present you with Part One.  In the introduction (or Part Zero) to this series, I pointed out that the Constitution is contentious, partly because it initially (and for some time afterward, including, in the opinions of many, right now) failed to live up to its early promise, and partly because it can be “interpreted” in a number of ways, usually with some kind of partisan bias.  Interpretation is naturally problematic any time you don’t have full access to the thoughts of the individual(s) who wrote something.  In this case, the best way to resolve matters is to resort to their available writings and other relevant records.  Some of those who contributed to the Constitution made their feelings known prior to its ratification, in the so-called Federalist Papers (John Jay, Alexander Hamilton and James Madison, all writing under the pseudonym “Publius”); many others had their various thoughts and objections recorded during the debates that took place during the Constitutional Convention, between May 14 and September 17 of 1787.  We can also read the writings of the anti-federalists (“Cato,” “Brutus,” Patrick Henry and others), to discover what they objected to under the proposal to more tightly bind the sovereign States under a strong federal government.

The greatest concern of the anti-Federalists, of course, was the threat of the eventual loss of hard-won liberty to yet another overreaching government.  As previously noted, these guys had just fought a war to eliminate the double threat of burdensome economic regulation and disarmament.   It was only grudgingly that some of these fellows came around to the notion of centralized power, and some retained reservations about this well afterward (three of the delegates to the Convention never signed off on the new Constitution).

Patriot, statesman, writer of epic breakup letters.

The Federalist writers did succeed, over the course of 85 essays, in convincing the masses (or at least their delegates)  that a stronger form of government was required. 

For many progressives, here is where the story ends:  states don’t have (or need) rights, a federal government should be as strong as it has to be, and the “general welfare” can be promoted, for various definitions of “general welfare,” with the raising of as much tax revenue as is required.  For many conservatives and libertarians, here is the past as prologue:  the modern phenomenon of unchecked government growth, economic pathologies inflicted by regulation, and a long series of abuses of the citizenry, all begin with this interpretation of the Preamble and the “Taxing and Spending Clause” (Article I, Section 8, Clause 1) of the Constitution.  This divergence in interpretation is precisely what’s at issue at the deepest recesses of the ideological divide in America, and the only way to resolve that issue is to finally determine, once and for all, just which interpretation is the correct one.

Not that doing so would convince those in the wrong, but maybe we can hope to prevent future generations from being indoctrinated in that set of beliefs. 

This is a thorny problem.  Education about civics, history and political science is in the hands of educators who quite often have a vested interest in promoting the progressive viewpoint.  Moral hazard, in this regard, should not exist at all (but here I’m waxing tautological, since moral hazard shouldn’t exist in any form).  However, it’s an inevitable consequence of the politicization of education, which itself is an inevitable consequence of the parallel existences of public education and of public sector unions.  (I’ve just nicely set myself up for a future blog topic, so feel free to wait with bated breath for that.)

I can recall the earliest discussions of the Constitution in my classes, coming up through the public school system in Cypress-Fairbanks Independent School District in the northwestern suburbs of Houston, Texas.  In one class, we were asked about the role of the Constitution.  The teacher had some difficulty getting her message across, and the question was asked repeatedly, each time after some amount of discussion.  One response that eventually bubbled up, partly in response to her urging, was that the Constitution “is a blueprint for government.”  That is a satisfactory response to a teacher whose income is assured by government activity, but it would have been a major disappointment to the Founders. 

Among the most strident opponents of the government’s monopoly on the use of force; along with Jefferson, one of the earliest prominent libertarians.

The Constitution is indeed a plan for government, but as is the case in the visual arts, it’s the negative space that really defines the subject.  It’s what the Constitution doesn’t authorize the government to do that is key to its operation.  The simplest statement of this principle is “if it’s not expressly authorized, it’s forbidden.”  The broader reality is expressed, explicitly, in the Tenth Amendment, which is part of the Bill of Rights:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  This statement is clear enough, but can be seen to have been presaged by a provision in the Articles of Confederation:  “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

While it can be demonstrated that partisans on both sides of the early debate over General Welfare had their reasons, some of which from both are quite valid, the prevailing point of view was steeped in the paradigm of the time, which was embodied in those Articles.  What I said about the guys just having fought a war is relevant here:  their understanding of the role of government was what it was, and was manifest in the somewhat more verbose wording of the Articles.  Less time was spent justifying the Articles than in stating their purpose.  (The justification itself was eloquently provided by Thomas Jefferson in the Declaration of Independence.)  When concepts were brought forward from the earlier document to be applied to the Constitution, a wide range of assumptions came with them, which the Framers put to parchment in sometimes more verbally-efficient ways.  The downside of that textual parsimony is that context was lost to subsequent generations, members of whom had never participated in the Revolution nor the Convention debates.

A recent argument I had on social media is a case in point.  Progressives, you might have noticed, tend to be somewhat hostile to the notion of states’ rights.  They regard the pathological case of the southern states retaining slavery as proof that states should not be permitted to govern themselves, as if a single problem renders the entire concept moot.  (This argument’s “negative space” is a particularly interesting disregard for the numerous examples of oppressive federal legislation.)

Although the Tenth Amendment has never been overturned, or altered in any way, the Left tends to regard the Civil War as some kind of repudiation of its content.  In the aforementioned debate, I struggled mightily to convince my opponent that the concept of state sovereignty is intrinsic to the Constitution, it being the paradigm in which the Founders were operating.  Whereas my adversary argued that state sovereignty had to have been defined somewhere in the Constitution in order to be a valid principle of government, I held that it was assumed from the outset, because that was the way they’d been doing things from the end of the Revolution.  Since the Constitution never asserts that the states are not sovereign, the prevailing assumption, that they were sovereign from the start, must remain in place.  Although he was manifestly incorrect in his assertion, he did have one valid (if inadvertent) point:  that the Constitution does not effectively define its terms.  People who were writing mostly for the benefit of themselves—those who would have to sign off on it and then undertake the process of bringing their own states around to its prescriptions—brought their own assumptions to the table, and sometimes overlooked the need to elucidate those assumptions for those who would follow.

We’ll cover this problem in detail in the third installment.

In order to clarify the purpose and intent of the Constitution, it is necessary, then, to draw on the words and writings of the Founders, and where possible, to disentangle opposing views.  The seminal arguments for drawing up a Constitution were made in the Federalist Papers, notably #23 and #s 37-51.  While Jay, Hamilton and Madison were in close agreement throughout the Federalist project, they parted ways over the very issue I identified above, with Hamilton advocating a more powerful federal government, with greater power to regulate the market and raise taxes, for purposes of a virtually unlimited range of “general welfare” programs.  It is worth pointing out here to Democrats—those ostensibly more concerned with the democratic process than Republicans, who are ostensibly more concerned with republicanism (Constitutionalism)—that Hamilton’s view was decidedly the minority view, and that from 1800 onwards, it was held to have been repudiated by the election of Thomas Jefferson and the ensuing primacy of the Democratic-Republican Party.

More than any of his contemporaries, Madison espoused the view that gradual encroachment, rather than sudden violence, was the means by which the government would eventually become tyrannical.

My thesis is that when interpreting the Constitution, we should, whenever possible, rely first on Originalist intent, and failing that—when it is too obscure or manifestly no longer applicable to our modern situation—to fall back on plain language.  Only after exhausting plain language—and to properly interpret that, we must often resort to other writings in order to discern meanings and connotations that have fallen by the wayside since then—are we justified in regarding the Constitution’s content as antiquated or unclear enough to require novel interpretation.  In this way—relying on what was originally meant, then what is actually said (as heard by the idiom and phraseology of our modern ears)—we can reserve actual interpretation for use as a last resort, thereby minimizing controversy and schism.  As I turn up examples of Originalist intent, and occasionally of plain language stating the Constitution’s positions, I will identify them as Resolutions that can be used to outline our model Constitution.

The Articles of Confederation were a pretty good start, but they, like their successor, left some gaps to be contended with.  Several incidents in the wake of the Revolution made this clear, most notably Shay’s Rebellion.  There were also problems collecting pre-war debts from the states and their citizens, with which to repay Britain, a provision of the Treaty of Paris.  The ratification of this Treaty itself was problematic, because there was little means of compelling delegates to participate in the proceedings.  It was drafted in April of 1783, but not signed off on by the Americans until January of the following year.

The confederacy had no taxation power, and had to request money from the states (this posing a severe limitation on that common defense).  There was no central judiciary, although the states had their own courts.  The most significant binding feature of the Articles was the confederate legislature, which was unicameral and allocated one vote to each state delegation.  Decisions entailing action by the confederacy required a unanimous vote, and there was no real provision for enforcing its resolutions.

Although the Constitutional Convention had initially convened with the intent to amend the Articles of Confederation, the focus quickly shifted toward devising an entirely new government and governing document.  The arguments in favor of replacing the Articles with a new Constitution were laid out on May 29 by Edmund Randolph, and included the following (from James Madison’s notes):

First, that the Confederation produced no security against foreign invasion; Congress not being permitted to prevent a war, nor to support it by their own authority.  Of this he cited many examples; most of which tended to show, that they could not cause infractions of treaties, or of the law of nations, to be punished; that particular States might by their conduct provoke war without control; and that, neither militia nor drafts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money.

Secondly, that the Federal Government could not check the quarrel between States, nor a rebellion in any, not having constitutional power nor means to interpose according to the exigency.

Thirdly, that there were many advantages which the United States might acquire, which were not attainable under the Confederation — such as a productive impost — counteraction of the commercial regulations of other nations — pushing of commerce ad libitum, &c. &c.

Fourthly, that the Federal Government could not defend itself against encroachments from the States.

Fifthly, that it was not even paramount to the State Constitutions, ratified as it was in many of the States.

So the most important justification for the new government was the need to provide for the common defense, a need covered by the first two items above.  (This was also the most prominent justification listed in the Articles themselves.)  The next most important was the need to maintain a free market, one capable of engaging with foreign markets without limit, or at least one with enough government backing to be able to deal with any foreign interference.  The next was the perceived need to maintain a governing sovereignty exceeding—but not superseding—that of any individual state.

Nowhere in this list is mentioned the need to “do things for the people.”  The “general welfare” did not, for a majority of the Framers, entail taking care of the masses via appropriation of taxes.   Indeed, the notion of income taxation appears not to have occurred to any of them.

We’ll go more deeply into the general welfare problem in the next installment.  For our purposes today it is sufficient to demonstrate that this was an issue right from the start, and to demonstrate that the need for a common defense was the principal driver of the Convention.  It is also instructive to bear in mind that these were highly-educated men, men for whom the history of far-flung empires like that of classical Greece and Rome were well-known, along with the problems of maintaining unity and stability across any expansive geographic scope.

Resolved:   while differing in some particulars, we can agree that a Constitutional republic is now called for, and we can regard the Constitution as upholding the need for a stronger government as predicated on some specific, identified needs (such as to maintain a sort of national unity and to protect a free market).

They nonetheless wanted a government that was decidedly less strong than the one they’d just overthrown, in the interest or preserving liberty.  They intuitively regarded the available liberty as inversely proportional to the power of government.  And they were right.  Every additional act of legislation is another chip off the block.

Utopia and dystopia: two interchangeable faces of the same coin.

Let’s take a look at Federalist #41, which I keep handy in a vest pocket for just this kind of occasion:

To the People of the State of New York:

THE Constitution proposed by the convention may be considered under two general points of view. The FIRST relates to the sum or quantity of power which it vests in the government, including the restraints imposed on the States.  The SECOND, to the particular structure of the government, and the distribution of this power among its several branches.

Under the FIRST view of the subject, two important questions arise:

Whether any part of the powers transferred to the general government be unnecessary or improper?

Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?

Is the aggregate power of the general government greater than ought to have been vested in it? This is the FIRST question.  It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end.  They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made.

This method of handling the subject cannot impose on the good sense of the people of America.  It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused.  They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.

That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects:

Security against foreign danger;

Regulation of the intercourse with foreign nations;

Maintenance of harmony and proper intercourse among the States;

Certain miscellaneous objects of general utility;

Restraint of the States from certain injurious acts;

Provisions for giving due efficacy to all these powers.

The powers falling within the FIRST class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money.  Security against foreign danger is one of the primitive objects of civil society.  It is an avowed and essential object of the American Union.  The powers requisite for attaining it must be effectually confided to the federal councils. Is the power of declaring war necessary?  No man will answer this question in the negative.  It would be superfluous, therefore, to enter into a proof of the affirmative.  The existing Confederation establishes this power in the most ample form. Is the power of raising armies and equipping fleets necessary?   This is involved in the foregoing power.  It is involved in the power of self-defense.  But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in war?  The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place.  The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place.  With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense?  If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.

Seems pretty straightforward to me.  The Paper is arguing for a strengthened provision for the common defense, while at the same time admitting a need for care when arrogating powers to a federal government.  The prevailing message is “we need to grant a federal government more power than it currently has, so that we can maintain military preparedness…but let’s not go overboard, OK?”

Resolved:  that the need for a common defense, being pressing in this hostile world of ours, is perhaps the highest priority for a fledgling nation, and a pretty cogent argument in favor of strengthening federal government; but a parallel need exists, to question and limit just how much power we’re going to grant it.  We can build limits into the government by distributing its power among various divisions or “branches.”

The Paper goes on to argue some particulars about standing armies and the need thereof, and these particulars fall somewhat outside our scope here.  But I will cite another portion from the last few paragraphs:

It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, 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. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. 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; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.

”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? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? 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.

But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare. ” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever.

But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

The takeaway from this is that while it is impossible to enumerate every specific power a republican government must exercise, and so we must deal with the somewhat hazy realm of “implied powers,” we can restrict implied powers to just those necessary to carry out the mission of the federal government as outlined in the Constitution.  The crux of the matter is what is meant by “the general welfare,” and we’ll dive into that in the next installment. 

Resolved:  that we cannot specify every contingency in which the federal government might find it necessary to legislate, but we can keep it on a short leash by placing sensible limits on the meaning of expressions like “the general welfare,” and limiting the “implied powers” to just those required to exercise the explicitly-authorized powers.

Sadly, this is precisely where the Constitution goes off the rails, and why I’m indulging in the academic exercise of designing a new one.  We know what the Founders meant by the “general welfare,” but they didn’t spell it out for those who followed, so they don’t.  Or rather, we know what most of the Founders meant, and we know what a minority preferred to mean, and we know what the eventual compromise between these two views became.  It is my intention to demonstrate that the original meaning—the originalist interpretation—was the correct one.  But even that compromise view, had it held sway over succeeding generations, would be preferable to the wide-open interpretation that we currently shoulder.

More to come as this series unfolds. 

To pinch off this first installment, we’ll recap the main points. 

Various citizens of various States were happy to have thrown off the yoke of overbearing government, but were concerned that the resulting sovereignties were insufficient to govern their polities, given the hazards that still existed in the world at the time.

  1. In particular, they wanted to strengthen commerce between the States, to eliminate the possibility of harmful trade wars between them, and to present a common front against trade aggression from other sources.
  2. They also wanted the States to be able to face off, together, against any foreign aggressor.
  3. They wanted a central government that could enforce existing laws, including those regarding taxation, which were being managed inconsistently at best.
  4. And they wanted all this while still striving for as minimal an authority as could be devised.

Hence our list of Resolutions:

  • We need a Republic, rather than a loose confederation of States.
  • We need a strong national identity.
  • We need a Constitution to restrain the Republic’s federal government.
  • We need to divide the Republic’s government into separate Branches, each checked in its tendency to assume power by the watchful eyes of the other two.
  • We need to protect a free market, the source of our prosperity (and a good portion of our liberty).
  • We need a means to provide for the common defense.
  • We can justify our actions on the basis of a “general welfare,” so long as we know and agree beforehand exactly what that means.
  • We can imply certain powers that a federal government ought to have, since it would be onerous and all but impossible to list every single power we’re willing to grant it (and we might never finish off our debates if we have to brainstorm them all in order to set them onto parchment).
  • At the same time, we have to limit the federal government’s natural tendency to grow and become more powerful.  We can do this by asserting that “implied powers” must have a basis in explicit powers; we must only grant the existence of those powers that are implied by the existence of an associated explicit power.
  • Beyond those quite necessary contingencies, we must demand that the federal government relinquish all other powers not expressly granted to it.

We’ll revisit and expand upon these in the next chapter, by way of walking through the Federalist Papers.  See you soon.

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