"I saw John Boehner with a Chinese menu in his hand,
walkin' through the streets of Georgetown in the rain..."
Of all the things that sadden and anger me about the Devolution of the Republican Party from one which could once appeal to me on the grounds of Fiscal Discipline and a Horror of Foreign Entanglements...into the present mutation that is little more than the "Flat-Earth, Angry Old White Man, Get off of my lawn you damn kids and keep the Government out of my Medicare and Social Security" Society...is the willful misuse, mis-interpretation, and general contempt that the GOP currently holds for the US Constitution. And the Tea Baggers are making it even worse.
As my old hero Keith Duckworth used to say: "Ill-informed is worse than un-informed"
See, I love the US Constitution, not because I see it as an example of perfection, but rather in it's down-to-earth practicality at both acknowledging and dealing with human weakness.
"...If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions..." - James Madison, Federalist 51
But before we start a discussion of what the Constitution is, let's dispel a few myths some on the Right have espoused by saying what it is not.
It is not your Fairy Fucking Godmother that flies in the window at night, waves a magic wand, and makes all the ow-ies and boo-boos go away. It does not govern. It is not a tool to ignore laws you don't agree with. It is not a salve to be applied by the Party out of Power to reverse the consequences of elections (though it certainly endeavors to preserve the rights of the minority from the "Tyranny of the Majority"). It is not an auto-pilot for the Republic that absolves the Citizens from any responsibility other than watching "Dancing with the Stars". It is not a bicycle pump to be thrust into the spokes of the Legislative Branch for Partisan Obstructionism.
"We may define a Republic to be... a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior." - Federalist Papers, No. 39, January, 1788
More than anything else, we must realize that the Constitution rests on the Foundation of Elected Representatives. There is a dynamic to the Legislative Branch that is absolutely required for our Constitutional Republic to Function.
I know a lot of people look at the US Constitution as a document that only exists to limit the powers of the Federal Government. But if that were the case, we would have no Government at all, nor would the Constitution have been anything but Madison's "Dead Letter":
"Without the SUBSTANCE of this power, the whole Constitution would be a dead letter." - James Madison
So let's examine what this power really is. And the best place to do that is right up at the front: Article I, Section VIII. And let's start with the Clause that so offends the sensibilities of all those waiving their Chinese Menus in the air at Tea Party Rallies that they will hardly deign to acknowledge its' existence: "The Necessary and Proper Clause"
US Constitution, Article1, Section 8, "Powers of Congress"
"...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."
The "Necessary and Proper" clause, as it is known, is one of the essential elements in understanding not what powers Congress is denied, but which ones they are allowed. Combined with the General Welfare clause and the Interstate Commerce clause, it justifies almost all of the Federal Laws that some people think should not exist. And they have every right to both prevent the passage of those laws or repeal them after passage. But either course of action is the role of their Elected Representatives, not the Constitution (in most cases). The power, either way, resides in the act of Legislating. I will keep repeating it: "Elections Matter"
Madison expounded on these powers, and their necessity, at length in Federalist 44.
Federalist 44
"...The sixth and last class consists of the several powers and provisions by which efficacy is given to all the rest.
- Of these the first is, the "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."
Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the substance of this power, the whole Constitution would be a dead letter. ..."
Easy enough. If Congress did not have the ability to pass laws as they deemed "Necessary and Proper", they would be an impotent body, and the Constitution a lifeless dead letter. Madison wanted neither, and wrote these sections of the Constitution to reflect that.
And lest we assume that these were plain and stupid men, they did indeed consider the consequences of their actions.
"...Those who object to the article, therefore, as a part of the Constitution, can only mean that the form of the provision is improper. But have they considered whether a better form could have been substituted?
There are four other possible methods which the Constitution might have taken on this subject...." - ibid
OK, the "let's just do what we did before" option. Madison did not think much of this.
"...They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not expressly delegated...
...Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "expressly" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of construction or implication.
As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not expressly granted...." - ibid
The "Let's call out every single damn thing that Congress can ever do from now until the end of time" approach:
"...they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"...
...Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same...." - ibid
Not workable. And for those of you who insist "if it is not specifically mentioned in the Constitution...it ain't allowed"...this is where you lost that argument. It is not the intent of the Constitution to define explicitly everything that Congress can do. It never was. Enumerated Powers such as the Commerce Clause are deliberately broad. The People control the definition of the Commerce Clause through their Elected Representatives.
OK, so why don't we just call out everything that Congress can't do?
"... they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition...
...
Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, not necessary or proper, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made...." - ibid
Nope. Worse than trying to identify the allow-ables in complete detail, is attempting to do the same with unallow-ables. "No shirt, no shoes...no dice"
"... they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference...
...Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication.
No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.
Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union...." - ibid
If the power is not defined as belonging to Congress...where does it reside? The executive? I thought we didn't like Kings
So what if Congress loses the plot?
"...If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities.
In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts;
and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers... - ibid
OK, that part needs repeating:
"...and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers..."
So here we have Madison, the Father of the Constitution, defining his definition of a "last resort" against abuses of power by the Congress.
No armed militia. Fuck-all for oath-keepers. No idiots braying about "Second Amendment Remedies"
Because as long as you have a vote, these other options are un-American. They are not even in Madison's realm of possibilities. Nor are they on the Radar of anyone who truly loves the US Constitution. The Ballot first, the ballot last, the ballot always. You have not "lost your Country" or "Had it taken away from you"...you lost a few damned elections. Grow a sack and get over it. You don't like the SOB's and their policies? Vote them out.
We have the Supreme Court and the Ballot Box as remedies...not fat idiots waving Guns and Gadsen Flags about.
More bad news for the Gadsen Flag Waving Mall Walkers: We also don't have Thomas Jefferson's agrarian utopia that a lot of folks think was the intention of the Constitution. Thomas Jefferson's writings without doubt influenced the framers, but he neither authored the Constitution nor signed it.
Madison and Hamilton are the primary (but certainly not the sole) sources for our Constitution. They were Federalists, not Agrarians.
And worst of all for the folks who think we are governed by Jeffersonian Principles (despite what Madison and Hamilton conspired to actually create in the writing of the Constitution): The Jeffersonians lost that argument to the Hamiltonians in MCCULLOCH V. MARYLAND
The Supreme Court settled it. Period. Full stop.
"...the state of Maryland had attempted to impede the operations of the Second Bank of the United States by imposing a tax on out-of-state banks, of which the Second Bank of the United States was the only one.
The court ruled against Maryland, and Chief Justice John Marshall wrote the opinion, which stated that while the Constitution did not explicitly give permission to create a federal bank, it had the implied power to do so under the Necessary and Proper Clause in order to realize or fulfill its express taxing and spending powers. The case reaffirmed Hamilton's view that legislation reasonably related to express powers was constitutional.
"We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people.
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional," - John Marshall...."
So can we drop the nonsense about laws which are clearly Constitutional being portrayed as unconstitutional? If you feel they are...file a suit. However, be aware that the "Necessary and Proper" clause is settled law. The Supremes, however, do retain the right of final determination of the ultimate limits of Congress' enumerated Powers. Which is well, because every once in a while Congress will magnificently step on their own collective dick (See: United States v. Lopez).
From the same MCCULLOCH V. MARYLAND decision
"..."The clause is placed among the powers of Congress, not among the limitations on those powers,"
it also noted "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."..."
So put down the Gadsens, Fuck-O's. Better yet...just vote in people who will reflect your wishes...just like James Madison intended. And put the guns away. You look silly. And nobody who loves the US Constitution needs one as long as they have a ballot.
And stop using the Constitution as a wedge to de-legitimize the results of elections
And that may be the root cause, over the last ten years, of this Country continuing to split into two distinct parts: Neither side accepts the legitimacy of the other's rule.
The final victory of the American Revolution was not the election of General Washington as President. It was the peaceful transfer of Executive power to Jefferson eight years later. The success of Republics is in their ability to recognize the legitimate right of the elected representatives to govern for the electorate. It is not holding elections that makes you a great Constitutional Republic. It is in honoring the results of those elections, whether your side won or lost.
Recent failures in that respect started with Bush v. Gore in 2000, which led @50% of the Country to question the very validity of President Bush's right to govern. Now, I think Bush v. Gore was a monumentally stupid and wrongheaded decision on the part of the Supreme Court, one almost completely barren of legal merit...but I also accept that it was ultimately the final decision. So it was settled law.
With President Obama we have the same issue, excepting that in this case the grievances have been completely fabricated. Forgetting the birther nut cases, there has been a constant drum beat on the right that the legislation that has been passed is unconstitutional, and therefore illegitimate. This is an extraordinarily short-sighted and un-American position, just as it was ten years ago to question the validity of some of the Bush administration's legislation based solely on not liking the results of the 2000 election.
Now, I have railed to high heaven over some of GWB's actions as being of very dubious constitutional validity (particularly "Signing Statements", letting others appoint Cabinet Positions, incarceration and detention without access to counsel, as well as Cheney's farcical notion that the office of the VP belongs to neither the Legislative or Executive branch), but that did not mean that any of the legislation he signed lacked the legitimacy and power of settled law. Until it is challenged in Court and overturned, or altered by legislative process...it is the law.
I do not question the other side's basic right to govern. In fact, as the majority Party they have a duty to govern and advance what legislation they see as reflecting the will of their electorate. But there has been no reciprocity towards this President or a Democratically controlled Congress after 2006 and 2008. Instead there has been a continual and unabated attempt by the Political Right in this country to completely ignore and de-legitimize the results of the last two National Elections. It both sickens and saddens me to see this occur.
And that is ultimately why I started this Diary, to have a discussion about a particular American Fairytale that politicians have been pushing for 50 years:
"Don't worry about who is in power, The Constitution Stands over you like a fairy godmother to make sure that you get only the Government you want...so leave it to the professionals".
Bullshit. Between the Commerce Clause, the General Welfare Clause, and the Necessary and Proper Clause, there isn't a whole lot of of pies that Uncle Sugar can't stick his thumb in if so inclined. I am sorry if that upsets people, but that was Madison's intention with the Constitution. And that of everyone who signed it, and all the States that ratified it.
The way to control Government, in both direction and size, is through the ballot. The Constitution is a wonderful Document, in fact I consider it America's greatest gift to the world. But it is not a magic spell that ensured that the Country froze in scope and complexity in late June of 1788.
Is our Government too Big? I agree that the Founding Fathers might well be amazed or even horrified at its' size and scope. But their amazement or horror would not be limited to only to the size of Government. They would surely be as horrified by the rise of the Multi-National Corporation as a permanent, hugely influential, and essentially State-less entity owing no allegiance to the Republic. An entity that exists solely to concentrate wealth and power for the few, yet one recently granted near "person-hood" status to use the concentration of wealth and power to influence the outcome of elections. Given the Founding Father's opinion of the East India Co, and their knowledge of the thoroughly corrupting influence it had on the British Parliament, they would be aghast at the dominating role of corporations in enacting, in fact in many cases writing, modern legislation. They may well have first asked what the People's Government intended to do about these corporate entities before they even entertained the task of reducing the size of that same Government.
But ultimately it is a question of balance. We probably do have too much Government, but we also have too much power over our legislative process in the hands of a few self-interested parties. We have too large a military and we have them engaged around the globe to an extent that would have the Founding Fathers collapsing from shock were they to see it. We have too much Federal involvement in State matters (mostly because the States take Federal money, and when you take the King's coin you are the King's man), we are too intrusive of other people's privacy, and we have an exaggerated sense of entitlement...at both ends of the economic spectrum.
So those who sense things are , well, slightly askew in the Old Republic are right, but it is not just the one thing (Government)...and that means we can not address the problem by attacking just the one thing (the size of government). If we all agree the bar stool is too high, we can not fix the problem by just cutting just one of the legs. In fact, that will make a bad thing worse.
We often use the words "power" and "government" interchangeably, but my concern is limiting the concentration of power no matter where the source.
Start by understanding what the Founding Fathers were really concerned about: The Concentration of Power. Not just Government, which can be one type of Concentration of Power, but all types. So just limiting Government holds no real interest for me if all that that does is cede the ability to concentrate power to another... who will then still wield it over me and my interests. At least with government I have a vote. I rather doubt the Koch Bros will be taking my calls in the new Tea Party Utopia.
Again, in our modern society, we speak words now that have little real meaning. It has left us at the level of dumb beats snapping at each other while those who would desire the concentration of power for their own ends laugh themselves sick.
Here is my major complaint with the philosophy of the "Less Government Crowd": The farcical notion that power removed from Government flows back to the people unimpeded.
It does not. It never has in the entire history of civilization. It flows to those next in line to seize it.
To lie about the Constitution in order to get the mob to throw down the temple of Big Government, only to allow the monied interests to walk right in over the rubble and set up shop, is simply to change one master for another. You will no longer be bothered by those pesky Feds. You will very much be bothered by Large, Stateless, Multi-National Corporations that fear you and your "freedoms" about as much as a Bull Elephant fears a gnat's shadow. Which means pretty much fuck-all. If you think that Big Government is the only threat to your Life, Liberty, and Pursuit of Happiness let me know how that works out when the Koch Brothers poison your family's drinking water and there is fuck-all you can do about it.
Both Left and Right claim they would like to see the individual further empowered. But the only way to achieve this is to maintain some sense of balance between Government and the Plutocrats (which is completely out of balance in the P's favor today). To simply abandon power to the Plutocrats has been tried before. It was called "Feudalism". I understand it pretty much sucked a bowl of goat-dicks from a "freedom" perspective. Oh, the Magna Carta? The ultimate Dead Letter to History.
So here is the question: How do we restore balance? How do we trim all the legs of the bar stool to bring it down to an acceptable height without tipping it over?
Hint: Lying to gullible idiots about the Nature of the Constitution will have fuck-all to do with a solution, but it may wreck us all. Cheers