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Gessing’s reactionary federalism misreads the Constitution
Michael L. Hays
Fifty years ago, in A History of the Modern World, then the standard for introductory college modern history courses, R. R. Palmer used a striking analogy to explain the Catholic Church’s reaction to the protestant idea of an individual’s right to read the Bible, interpret it for himself, and live by his interpretation, without regard to the Catholic Church.
He invited readers to imagine the American people’s reaction to the idea of an individual’s right to read the Constitution, interpret it for himself, and live by his interpretation, without regard to the Supreme Court. He assumed that Americans would be horrified and thus would understand the Catholic Church’s reaction.
What Palmer offered as a theoretical possibility has become a practical reality. I was never bothered that, from the beginning, Americans have argued about the meaning of its foundational documents and court interpretations. For, with few exceptions – the issue of slavery being one of them – generations of Americans have accepted their legal answers to legal questions.
The consensus has enabled America to move forward, although a few fringe groups have continued to inveigh against this or that amendment or ruling. Occasionally, the court does reverse itself, as it did when, in Brown versus Board of Education of Topeka (1954), it overruled Plessy versus Ferguson (1896).
But I find myself bothered by a radical shift in the nature of the discussions of this foundational document. Previously, discussions have involved not only the Constitution itself, but also its historical context and court interpretations. Originalists believe that it had a first and a final meaning defined when written and ratified; they believe that the work of the Supreme Court is to apply that original intent to later cases.
Others believe that it had a first meaning which, in its provisions for amendment and interpretation, denied a final meaning; they believe that the court’s work is to apply meanings that reflect an evolving understanding of them and changing circumstances to later cases.
The division is absolute; one must take sides, not pick and choose, lest one commit the fallacy of special pleading.
Rejecting originalism
I accept the latter, prevalent, and traditional view; indeed, I can make no sense of originalism. Theoretically, later readers of an earlier document can never be sure to accurately and comprehensively understand its original meaning. Practically, the large majority of Americans reject original provisions in the Constitution.
One case in point: Originalism accepts the constitutional provision for slaves, which explicitly includes them in the census but tacitly excludes them from the franchise. Another: It accepts the constitutional silence excluding women from the franchise and rejects the Nineteenth Amendment.
These cases show originalism to be inescapably racist and sexist, as the drafters of the Constitution themselves likely were. Originalism cannot make adjustments in such cases without undermining its basic principles and endorsing constitutional evolutionism. (One irony: Many of those who have insisted on a respect for precedent and opposed judicial activism but have become originalists are advocating aggressive judicial activism in overturning most precedents of settled law.)
The shift is that Republicans, tea partiers, and other reactionaries read the Constitution in ways distorted by their political convictions, partisan criticism of current laws, or special interests. They may claim to be originalists, but they are really contortionists. They offer ideological interpretations retrojecting their desires into the Constitution and producing distorted interpretations that serve special moral or religious, or economic, interests.
Moral or religious zealots are sincere in supporting such interpretations as the means justifying their ends. Economic self-servers are cynical in supporting them as a means glossing their greed with seeming constitutional sanction.
Gessing’s argument
I have glancingly addressed issues associated with the Constitution in other columns and blogs, but I directly address Paul Gessing’s recent column, “Federalism is key to America’s future,” because it is a local example of interpretations of the constitution tailored to serve special interests.
Gessing is the executive director of the Rio Grande Foundation, which is largely funded by oil and gas industries. These and other large corporations prefer state governments to have more, the federal government to have less, power because they can exert more influence on the former than on the latter.
Gessing’s first four paragraphs on federalism, most of which I quote, should be read in this light:
…Federalism, at least as conceived by the Founding Fathers in the Constitution, meant that the central government in Washington had a few, strictly-limited powers, but that an overwhelming majority of what was to be done was to be left to the states and people.
The belief that Washington’s powers were few and limited was so important to the founders that two separate amendments essentially re-stated this. The 10th amendment clarifies the issue, simply stating, “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.”
To say that we have strayed far from this concept over the past 225 years or so would be an understatement. Federal policies now dictate state actions in education, health care, environmental policy, and a wide variety of other regulatory powers (to name just a few).
None of the aforementioned policy areas were named in the Constitution and, given the strict limits placed on federal activities, it seems worthwhile to at least discuss whether Washington has a role in these policy areas at all. But we have obviously crossed that bridge in the courts and Congress, and now we have a $14 trillion federal debt to show for it.
The first thing to say is that no connection whatsoever exists between the size of the federal deficit and government policies claimed to be constitutionally improper. At any time, the federal government could have adopted tax or spending policies that would have prevented or eliminated any deficit. In fact, the Clinton administration did exactly so; had its policies been continued, they would have eliminated the deficit by 2010.
The second thing to say is that no credence whatsoever attaches to a claim that “we” – millions of Americans, thousands of elected federal officials, and hundreds of federal judges – have “strayed far from this concept” of limited federal powers. Democracy can make mistakes, but it is rather audacious, if not arrogant, for anyone to imply that everyone else has been wrong about everything important for over two centuries.
A reactionary’s discontent
In raising these two non-constitutional issues, Gessing reveals a reactionary’s discontent with things as they are. In purporting to offer a federalism for the future, he actually offers a tendentious redefinition of it based on four common fallacies of reactionary constitutional interpretation – to which I now turn.
One, Gessing reads the Constitution without regard to its historical context. A significant part of that context is its predecessor document, the Articles of Confederation (1781), which, as its name implies, defined the American polity as a loose association of states. The failures of that political arrangement were its inabilities to deal with matters of foreign policy and of domestic relations within and among the states.
Political leaders recognized the need for a strong central government that could provide a unified approach to relations with other countries and a government capable of ensuring stable intra- and inter-state relationships and of regulating interstate trade. They convened the Constitutional Convention to that end and created the Constitution articulating it.
Two, Gessing reads the Constitution selectively, to cite the provisions that serve his point and to skirt the others. He ignores the Preamble, which states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
He avoids the first purpose for the Constitution: “to form a more perfect Union,” not a more perfect confederation. This phrase implies predominant powers for the federal government in its preference for national unity over state multiplicity.
Three, Gessing reads the Constitution perversely, with a “reverse rhetoric;” what comes first counts for less than what comes last. The Constitution ratified in 1788 specifies the three branches of the federal government and their powers. The Bill of Rights, the first 10 amendments, ratified in 1791, places some restrictions on the government largely in favor of individual rights; the Tenth Amendment reserves to the states whatever powers the Constitution does not grant to the federal government or deny to state governments.
His strange argument makes this afterthought the foremost concern of the founders in drafting the Constitution and the Bill of Rights. (He asserts that two other amendments limit federal power without naming them or later identifying them when asked to do so.) Those like Gessing, who use this amendment as a standard to judge the constitutionality of federal legislation might appropriately be dubbed “Tenthers.”
Four, Gessing pretends that the general language of the Constitution precludes specific legislation reflecting its preamble’s concerns. That the Constitution does not mention “education, health care, environmental policy, and a wide variety of other regulatory powers” does not imply that the federal government has no powers in these areas. (What makes these and other areas “regulatory” only? Why are his choices not cases of special pleading?)
Obviously, a phrase of purpose like “promote the general Welfare” can be meaningful only if the government creates laws and agencies to serve this end.
The irony
Ironically, by paltering with language and logic in this way, Gessing undermines the rationale for federal government support of the special interests that contribute to his organization. For, if a phrase of purpose precludes specific federal powers in areas related to it, then the absence of a phrase of purpose also precludes specific federal powers in areas related to it.
Ergo, according to his logic, if the preamble says nothing about a constitutional purpose to promote prosperity, the federal government has no powers of any kind to assist private interests, which constitute a large part of the economy – bye, bye, subsidies, tax benefits, waivers, exceptions, etc.
Of late, reactionaries have been urging distorted interpretations of the Constitution and its amendments as part of their more general effort to “take the country back.” This serviceable ambiguity means both of two things: taking it “back” from others and taking it “back” to a past. Which is to say, reactionaries want the country to go backward, not forward, into the future.
They repudiate the modern world – its demographic diversity, its mixed economy, its sciences, its arts, among others – and propound flawed arguments to persuade the unhappy or the unwary that the Constitution sanctions a return to some Garden of Eden or Golden Age. These fictions are myths of the past, not maps for the future. For that, we need the federalism defined by the Constitution of traditional American consensus to help us move forward.
Michael L. Hays (Ph.D., English) is a retired consultant in defense, energy and environment; former high school and college teacher; and continuing civic activist. His bi-monthly Saturday column appears in the Las Cruces Sun-News; his bi-monthly blog, First Impressions & Second Thoughts, appears on the intervening Saturdays at firstimpressionssecondthoughts.blogspot.com.
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Qui Tam:
Thank you for such an apt demonstration of my point; that you are incapable of distinguishing a policy disagreement from a personal attack is indeed demonstrative of exactly the self-righteous aspect of your apparently not-inconsiderable ego that I was addressing.
IncarusPhoenix – “What makes your anonymous credential-free internet persona worth launching personal attacks against” IncarusPhoenix – since you are the violator to that regard you must answer that question for yourself.
Qui Tam:
I am confused, and I’m fairly certain that most readers, having a grasp of the English language, share my confusion: In what way am I issuing “directives”, and how on Earth am I “scary” or “threatening”? This is the Internet, kiddo. Nothing we say or do here directly affects or threatens the lives or livelihoods of anyone else here. I’m sure you feel like you are being clever with your disjointed cut-and-paste jobs, but as you have yet to offer a single verifiable fact in any of the unnecessarily hostile, generally off-topic, and hypocritically personalized series of posts that you have flooded us with in the past few days since you started trolling this site, I’m going to have to ask your pardon if, quite understandably, no one takes you seriously as a source of advice for respectful conduct and productive debate.
And in response to the reply that I already know you’re going to make, I draw your attention to two previous posts and kindly recommend that you ask yourself the question they pose: What makes your anonymous credential-free internet persona worth launching personal attacks against, and why is something automatically true just because you believe it?
Thomas Molitor
June 25, 2011 • 4:57 pm .@Qui Tam
Yes, IcarusPhoenix is the resident ad hominem king, whom which, Heath refuses to tame for some inexplicable reason.
Thank you Thomas Molitor. And Mr. Molitor you do not “need” to do anything:
IcarusPhoenix
June 25, 2011 • 10:46 pm .Mr. Molitor:
You, too, need Michael L Hays
June 23, 2011 • 10:45 pm .Qui Tam and Icarus Phoenix, a reminder: the subject was federalism, not how each of you react to and judge one another. No one can prevail in such an exchange; the winning move is not to play.
Michael L Hays
June 25, 2011 • 6:44 pm .Thomas,
You offer four assertions, without any explanation of what they mean or what you mean. As a result, I do not understand any meaning which you intended to convey. Perhaps some elaboration might make clear something other than your usual rejection of my views, whatever they may be, for good reasons, bad reasons, or no reasons at all. I do not know, and I suspect no one else does either.
Michael L Hays: “the winning move is not to play” – you lost. Maybe if you had followed your own advice, tried not to cripple anyone and acted as Judge you would have stood a chance. Again, you lost.
IcarusPhoenix – quit making directives it is scary and threatening and totally counter productive.
Mr. Molitor:
You, too, need to look up the meaning of the phrase “ad hominem”, and then look in a mirror… and maybe a history book. Just because you disagree with someone does not make them your personal bully, and I’m a continually amazed at the belief of some people here that policy disagreement is the same as a personal attack.
Mr. Molitor, did you read Mr. Hays’ column? Part of the point was that Mr. Gessing (and, apparently, you) have no clear understanding of what the Constitution actually means. Indeed, the column of Mr. Gessing’s that Mr. Hays was responding to ascribed to the Constitution many of the ideals that it was specifically written to replace. Furthermore, if the Constitution were not intended as a “living document”, the entirety of Article V would never have been included in the original document, and (for that matter), the powers granted in Article III would also not be included.
Thomas,
You offer four assertions, without any explanation of what they mean or what you mean. As a result, I do not understand any meaning which you intended to convey. Perhaps some elaboration might make clear something other than your usual rejection of my views, whatever they may be, for good reasons, bad reasons, or no reasons at all. I do not know, and I suspect no one else does either.
@Qui Tam
Yes, IcarusPhoenix is the resident ad hominem king, whom which, Heath refuses to tame for some inexplicable reason.
Michael, the Constitution is the Constitution and is not a “living document.”
There is not an updating the Constitution in the “modern world” as you say.
The Constitution is not a “Garden of Eden or Golden Age” as you imply.
These are basic human rights, basic natural rights, conferred upon man that transcend any “updating.”
True enough, Mr. Hays; that being said, Qui Tam decided to bring this conversation over from another article and I (rather foolishly) took the bait.
Qui Tam and Icarus Phoenix, a reminder: the subject was federalism, not how each of you react to and judge one another. No one can prevail in such an exchange; the winning move is not to play.
Qui Tam:
Which part isn’t true, exactly? Assuming that someone disagreeing with you automatically validates what you already believe (but which you have yet to try to demonstrate the accuracy of with evidence) and that policy disagreement is the same as a personal attack seems to me to indicate a remarkably self-centered individual. This is particularly true when the person in question has no demonstrable motive to attack you personally at all, nor would there be any point. To me, you are faceless (and strangely bombastic) words on a screen. There is nothing about you for me to personally attack. That leaves only your statements to poke holes in, and your complete lack of evidence to back-up your claims has made that (I’m sorry to say) a remarkably simple task.
A friendly word of advice from someone who does this for a living? Learn to separate the personal from the political, unless you actually want to give yourself an ulcer. Just because someone disagrees with you doesn’t mean they’re out to diminish your sense of self-worth, and throwing a tantrum about it every time someone has the temerity to believe something different than what you do just hinders any substantial arguments you may wish to make in the future.
IncarusPhoenix – no, that is not true either. Your words and constant attacks speak for themself. In the few threads in which I have read in which you participate one only has to read your words for proof of mine.
Qui Tam:
You’re just sore that I disagree with the same people you agree with. In the past couple of days, you and libertad (both of whom do seem to be fairly new here, yes) have both made unsubstantiated blanket attacks without giving any evidence to back up your arguments. Give us evidence of your assertions, and then we’ll take you seriously. You’re sitting with the adults now (metaphorically speaking, since this is, after all, the fact-averse land of the internet), so you need to learn that criticism of your arguments – particularly when those arguments are so remarkably weak – is not the same thing as a personal attack.
Commenters, I am new here is IcarusPhoenix the neighborhood bully?
libertad:
I don’t see anyone here trying to universally group you with all other conservatives. Indeed, unlike your remarkably generalized responses to all of us collectively, our replies to you have addressed your specific arguments. Frankly, it sounds more like you personally are only able to read our words from the viewpoints of someone who doesn’t want to put any particular effort into their responses and only participates in debate within the frame of a particularly regrettable persecution complex.
kinda curious how liberals have no qualms about grouping all conservatives together and branding them as ‘the same’… but it is simply not possible to do the opposite in their minds…
Mr. Harris, suggest away. May I suggest that you explain in your own words why my interpretation is “absolutely wrong”? I assure you that I think for myself and do not rely on or refer to the writings of known partisan “think” tanks. I expect the same of you.
libertad:
Universally disparaging all liberals because you don’t understand the implications of Justice Scalia’s statements and they do isn’t really the most effective of methods; Scalia’s position is that the Federal government doesn’t have the right to tell states not to outlaw abortion, a position that demonstrates a profound ignorance of the incorporation clause of the Fourteenth Amendment. He has also gone on record saying that the Constitution allows gender discrimination (also ignoring the Fourteenth) and that the Federal government does have the right to enforce it’s drug laws at the state and local level regardless of individual states’ laws (in what is likely a spurious use of the commerce clause). As previously stated, if you’re going to espouse the idea of “Originalism” (by which I assume you mean the philosophy most people refer to as “strict constructionism”), you probably shouldn’t use the Justice who has ignored the Constitution more than any other,
qofdisks…typical excited liberal response… you don’t get it. Point of the discussion about abortion is that Scalia agrees with the liberal leaning idea that abortion is pro-choice … as a jurist he says the constitution does not prohibit it. My guess is, personally he is against the idea but in his capacity of constitutional interpretation he is on record in the way i indicated. My sarcasm was, because its obvious it needs to be spelled out, how odd it must seem to the liberal mind that a conservative, activist, judge align with their interests. Talk about irony…
“Consider this: Antonin Scalia, Justice of the Supreme Court, is an Originalist. When asked what he thought about the subject of abortion in a constitutional framework, and though he is a strong conservative, his position is abortion is not in the federal government’s purview to regulate… because there is nothing he can find in the constitution that says it should be. The issue of abortion is silent in the document. That means the federal government should stay out of it. I wonder how the pro-choice, left wingnuts feel about that?”
Consider this: The fourth amendment allows for the right to privacy. What can be more private than a citizen’s own body? In this aspect, her uterus? That is how the pro-choice see it.
Mr. Harris:
First of all, the fact that you’re taking Constitutional advice from the Heritage Foundation shows you to be as ignorant of history as Mr. Gessing, and that you’re citing Jonah Goldberg as a source for what liberalism is shows your desperate need for a dictionary.
Though this is better than libertad’s apparent belief that “a more accurate version of history” is the one that was told to him (her?) by conservative historical revisionists who still haven’t forgiven FDR for winning the 1932 election… to say nothing of their fervent hope that no one will point out that conservative, anti-constitutional, state-supremacy advocates lost the Civil War. Furthermore, citing Justice Scalia, the man who is demonstrated to be the most activist (and, by extension, the least Constitutionally-restrained) judge on the court, is hardly a strong argument in favor of the laughably-named philosophy of “Originalsim”.
“What Palmer offered as a theoretical possibility has become a practical reality” – anecdotal at best
“Americans have argued about the meaning of its foundational documents and court interpretations” – that’s part of what makes us free people – but when the state controls everything, its usually not a good idea to criticize much of anything
“Practically, the large majority of Americans reject original provisions in the Constitution.” Again, says who?
“They (Republicans, etc) offer ideological interpretations retrojecting their desires into the Constitution and producing distorted interpretations that serve special moral or religious, or economic, interests.” And, progressives don’t?
“Moral or religious zealots are sincere in supporting such interpretations as the means justifying their ends. Economic self-servers are cynical in supporting them as a means glossing their greed with seeming constitutional sanction.” Whut?
“The first thing to say is that no connection whatsoever exists between the size of the federal deficit and government policies claimed to be constitutionally improper” So, in this context, what we get with the ‘living document’ folks, is that means the federal gov’t can exert whatever powers it sees fit in the name of the people at the people’s expense and without their say because the constitution gets to be interpreted their way and mold to whatever whims of the moment come to mind. The deficit then would have nothing to do with the exertion of such whimsical power? Come on, dude… you’re way off base on this one.
“The second thing to say is that no credence whatsoever attaches to a claim that “we” – millions of Americans, thousands of elected federal officials, and hundreds of federal judges – have “strayed far from this concept” of limited federal powers. Democracy can make mistakes, but it is rather audacious, if not arrogant, for anyone to imply that everyone else has been wrong about everything important for over two centuries.” If the writer were to provide a more accurate version of history, the ‘living document’ folks started their march on the constitution in the 1930′s or so, then we got the New Deal followed by the Great Society… both of which gave us growth of federal government beyond imagination. Until then, things were relatively in check from a limited gov’t perspective.
The rest of the writer’s mostly self imposed desires on what HE thinks any of this is supposed to mean (limited gov’t folks never get to have self imposed desires, but somehow writers who put out this kind of garbage are exempt from their own rule) isn’t really worth responding to.
Consider this: Antonin Scalia, Justice of the Supreme Court, is an Originalist. When asked what he thought about the subject of abortion in a constitutional framework, and though he is a strong conservative, his position is abortion is not in the federal government’s purview to regulate… because there is nothing he can find in the constitution that says it should be. The issue of abortion is silent in the document. That means the federal government should stay out of it. I wonder how the pro-choice, left wingnuts feel about that?
I would suggest that your interpretation of slavery and the Constitution is absolutely wrong and perhaps you should return to The Heritage Guide to the Constitution as a refresher on original intent with respect to this issue; a very clear English interpretation.
As to your progressivism, you may want to refer to Jonah Goldberg’s Liberal Fascism for a historical perspective on what happens when constitutional documents are interpreted whimsically by whoever is in power at the time.
I guess big oil has been a problem forever.
Yep, most of the crowd trying to subvert the powers of the Federal government do so with a blind eye when it comes to their own special pleadings and special interests. If you ever happen to be in Cedar Falls, Iowa during the Antique Tractor Days you have an excellent opportunity to see this behavior in action. Plenty of John Deere hats, American Flags and cross lapel pins, as well as Veterans pins and hats. All great supporters of state’s rights and agin’ that damnable Federal Government. Then, ask the all-American, pro-commerce, pro-capitalists where in their beloved constitution it gives the federal government the right and power to force Americans to buy ethanol. Yeah. The folks who are wrapped in the constitution and flag have a hard time explaining how that subsidy is okay, but the rest of the bums need to get off the government teat.