The first tentherist debate: George Washington weighs in

Back to my occasional series on “taking tentherism seriously.” If you’ve followed everything until now, skip ahead a couple of paragraph to where the new stuff starts.

The Old Stuff
If you’re joining us late, “tentherism” refers to the argument by small government conservatives, across U.S. history and especially now, that the Tenth Amendment to the U.S. Constitution limits the federal government to those powers explicitly enumerated in the Constitution, and that therefore a great many assertions of federal power — from  early days to the Obama health-care law — were unconstitutional federal power grabs from rights and powers that should have remained vested in the states or the people. (Michele Bachmann asserted this doctrine, with reference to ObamaCare. Tom Emmer has sponsored state laws that would assert Minnesota’s right to block federal laws on 10th Amendment grounds.)

In searching for the “original understanding” of the 10th Amendment, a couple of my taking-tentherism-seriously posts last month (see here and here) dealt with the crisis over the Alien and Sedition Acts of 1798 and the role of such important founders as John Adams, Thomas Jefferson and James Madison.  I had meant to push forward historically, but believe it or not, I must back up because I had overlooked the role of George Washington in one of the very first iterations of the Tentherist argument.

The new/old stuff starts here
In 1790, during President Washington’s first term, Treasury Secretary Alexander Hamilton devised a plan for a privately owned, publicly chartered Bank of the United States to help with his plan to put the young country and  the new national government on a sound financial footing. A bill to grant a federal charter to that bank moved through the Congress.

Various arguments for and against the idea arose, but one of the key arguments against was that the Constitution did not include an enumerated power to charter a national bank and that, under the 10th Amendment (which says that all powers not granted to the national government are reserved to the states and the people) an act to charter a bank would be unconstitutional.

Among those holding that view were James Madison (who was then serving in the House of Representatives), Thomas Jefferson (who was Washington’s secretary of state) and Edmund Randolph, the attorney general. All three men urged Washington to veto the bank bill, at least partly on 10th Amendment grounds.

According to Gordon Wood, one of the top historians of the founding generation, in “Empire of Liberty,” his 2009 summary of the early years of the Republic, President Washington was impressed with their arguments. If Washington had vetoed the bill on tentherist grounds, it would have been a powerful, lasting blow for the tentherist position.

George Washington
Gilbert Stuart/Rembrandt Peale
George Washington

Wood says that Washington had great respect for the three men who urged a veto, and adds that Washington was “deeply perplexed by the issue of constitutionality,” and even went so far as to ask Madison to prepare a veto message. (That’s odd, to modern thinking, since Madison wasn’t working for the administration.)

But before making up his mind whether to sign or veto, Washington gave Hamilton, the proponent of the bank, a chance to reply to the tentherist arguments. Hamilton was a very important framer of the Constitution himself (he was was a delegate to the Constitutional Convention and, subsequently, along with Madison, chief author of the Federalist Papers, which have often been used as an important source for those seeking the “original understanding” of the Constitution). But Hamilton was also a strong Federalist.

According to Wood:

“Hamilton, with Randolph’s and Jefferson’s opinions before him, spent a week working out what became one of his masterful state papers. He carefully refuted the arguments of Randolph and Jefferson and made a powerful case for a broad construction of the Constitution that resounded through subsequent decades of American history. He argued that Congress’s authority to charter a bank was implied by the clause in Article I, Section 8 of the Constitution that gave Congress the right to make all laws ‘necessary and proper’ to carry out its delegated powers. Without the such implied powers, Hamilton wrote ‘the United States would furnish the singular spectacle of a political society without sovereignty, or of a people governed without government.’ That may have been Jefferson’s ideal, but it was not Washington’s. On Feb. 25, 1791, the president signed the bank bill into law.”

With that signature, Washington lent the incalculable weight of his reputation to the side of the argument that, in the modern context, most liberals take. By the way, for historical “original understanding” purposes,  Washington, in addition being the legendary father of his country, was the presiding officer of the Constitutional Convention.

The “necessary and proper” clause, which also came to be known as the “elastic clause” of the Constitution, became one of the key tools, along with the “general welfare” clause and most especially the “interstate commerce” clause, by which succeeding generations, especially during and after the New Deal, expanded the scope of federal programs.

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Comments (35)

  1. Submitted by Stephan Flister on 08/17/2010 - 08:46 am.

    But Washington was born in 1732 – before there was a United States – so he obviously was not a citizen and therefore not a legitimate president.

  2. Submitted by Ray Schoch on 08/17/2010 - 09:10 am.

    Tension between and among the layers of government and citizens is more or less endemic to the democratic process. Few people are likely to be entirely happy with every action of government, at any level, and balancing minority and majority rights is an ongoing process that doesn’t seem likely to be settled any time soon. Not only are Washington’s actions and views regarding the national bank instructive, but if we’re interested in the view of the “Founding Father” when it comes to the extent of federal government power, it’s also instructive to look at Washington’s actions and correspondence in the case of the “Whiskey Rebellion” in western Pennsylvania in the 1790s.

    In that case, too, Washington came down on the side of federal power being necessary to operate a national government. He wasn’t exactly enthusiastic about sending militia troops to suppress a fairly motley “rebellion” of small farmers, but the question at hand seemed to him to be pretty much what’s being suggested in Eric’s series here – that a government limited to only the expressly-state powers of the constitution was crippled from the get-go, and that the “implied powers” doctrine was necessary and proper to ensure that national government could function in a meaningful way.

    Washington hardly qualifies as a flaming liberal by modern standards, and he solicited written opinions from cabinet members and others to see what other thoughtful (and powerful) people thought about the issue, but in the end, he came down firmly on the same side that Lincoln came down on in 1861, and that Ulysses Grant enforced at Appomattox Courthouse in 1865.

    Tom Emmer notwithstanding, there’s no reasonable legal or historical justification for “Tentherism,” and plenty of historical and legal precedent over more than two centuries to suggest that, at best, it’s wishful thinking. More often, it’s the political equivalent of sour grapes, which fits perfectly, it seems to me, with the current right-wing mind set that anything they don’t agree with is some form of “tyranny,” while “freedom” consists only of those things they endorse. This is the intellectual equivalent of childhood.

    Arguing specific policies is in the American democratic tradition, and I have no problem with people who call themselves “conservative” making a case for smaller government or lower taxes or fewer programs, but the assertion that the national government lacks the authority to make laws for all of us unless we personally, individually, agree with them is, to be polite, specious. It ignores our history, and also ignores a Constitution that those who call themselves “conservative” claim to revere.

  3. Submitted by Tom Miller on 08/17/2010 - 09:27 am.

    Straight out of Article 2 Section 1 of the U.S. Constitution:
    “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

    The father of our country was grandfathered in.

  4. Submitted by Stephan Flister on 08/17/2010 - 09:34 am.

    But Tom (#3), you just looking at what the Constitution says in plain English. You need to read more deeply to get it to say what you want it to say.

  5. Submitted by Paul Brandon on 08/17/2010 - 09:42 am.

    Well, sort of.
    He still could not have “been fourteen Years a Resident within the United States” since the States had not yet been United for fourteen years.
    May have been intended to mean ‘what are now the United States’, but that’s not what it says. If you’re going to be literal….

  6. Submitted by John E Iacono on 08/17/2010 - 09:58 am.

    A well researched and accurate post.

    Note that Washington did NOT dismiss the “tenther” objections out of hand, but instead sought persuasive argument from Hamilton.

    Note also that Hamilton’s argument was that the national bank was “necessary and proper”, and therefor authorized. He did NOT argue that the government can “do anything it wants,” nor did he argue that the tenth amendment was of no force or effect.

    I believe in the case of the national bank he was right. Which does not mean I believe that each and every encroachment on states or individuals by the federal government is “necessary and proper”, or that by the authorizing of the national bank the tenth amendment was rendered null and void.

    It seems to me that a court test or tests might have been appropriate at the time, had the supereme court by then already asserted its right to test actions for constitutional conformity.

    And I believe current day recourse to that avenue is also right and proper, win or lose: it can make the federal government defend its actions as indeed “‘necessary and proper'”.

  7. Submitted by John E Iacono on 08/17/2010 - 10:10 am.

    (#5)Greg Kapphahn says:
    “…under the control of a wealthy aristocracy – an oligarchy of a few wealthy families who run the country for their own benefit…”

    I believe the objections to a national bank came more from the states, which had their own state banks and issued their own currency. Also, some of the wealthier states had paid off their debt from the Revolution, and resented that Hamilton would take over all such debt, to the advantage of states that had not.

    As for the “control of a wealthy aristocracy”, it was true then, has been true since, is true now, and will be true in future: “Money makes the world go ’round,” here, or in Russia, or in Mexico, or in Afghanistan. Get used to it.

    Who do you think funded the Revolution? And why do you think they did it? To lose power?

  8. Submitted by Eric Paul Jacobsen on 08/17/2010 - 11:45 am.

    I have been following Eric Black’s articles on the early history of the Tenth Amendment with great interest, and I also enjoy the comments.

    For a long time, though, I felt a little sad for what I hold to be one of our great virtues as a nation: good old US-American pragmatism.

    This seemed to have been lost in the debate over “what the Founding Fathers intended.” Whatever happened to looking at the present situation and asking ourselves what’s right for the country right now? Whatever happened to answering these questions ourselves? Whatever happened to innovation and inventiveness? Why devote ourselves so dogmatically to tradition?

    And then I read this wonderful report of a debate between Madison and Hamilton that was pragmatically resolved by Washington using the eminently pragmatic phrase “necessary and proper.”

    Eric Black took us all the way back to 1791 to help us rediscover our own pragmatism as a thing that is both traditional and constitutional. How about that!

  9. Submitted by Lance Olson on 08/17/2010 - 12:03 pm.

    I just wanted to add that Eric Black has done a wonderful job raising this fundamental matter. It always comes up in Supreme Court decions and I think it flies right by most people. I think everyone agrees with the “living, breathing” document concept to a point, but as Eric points out so well, there are other considerations. Nothing is clear cut. If our Justices take the time to have this argument every time, I can live with the decision. But I am skeptical because Presidents painstakingly search (With special interests throwing around their weight and intimidation) for people who will uphold their views. There is so much at stake. We must demand balance and freedom for our judges to do the right thing. If it remains destructively partisan, our system of justice will no longer be fair and balanced.

  10. Submitted by Brian Simon on 08/17/2010 - 12:12 pm.

    Great post & comments.

    As the constitutional challenges to this year’s health care reform act wend their way through the courts, I wonder if its time to renew an argument for federal intervention based on the ‘necessary and proper’ and ‘general welfare’ clauses. Given that our healthcare system already assumes that nobody should go without healthcare (i.e. free coverage for the indigent at emergency rooms), there is a compelling argument that a formalized system to ensure health care as a fundamental right of Americans is, in fact, constitutionally valid. If healthcare isn’t ‘general welfare’, what is?

  11. Submitted by John E Iacono on 08/17/2010 - 12:13 pm.

    For those curious for more info on why there might have been differences of thinking about how to interpret the Constitution even in the earliest years of its existence,

    I highly recommend “Miracle at Philadelphia – The Story of the Constitutional Convention May to September 1787” by Catherine Drinker Bowen (Little Brown, 2010). A fascinating read.

    It was recently on the Barnes & Noble discounted bookshelf, and may still be.

  12. Submitted by John E Iacono on 08/17/2010 - 12:20 pm.


    Don’t worry. Our supreme court has been politicized by every president who ever appointed a member.

    But it is comforting to see how, except perhaps in the Dred Scott decision, the court has managed to steer a course that has kept us together and even cemented our society.

    As a referee, I don’t lose much sleep fearing it will lead us off the cliff one way or another, and neither should anyone.

    Take it from an old codger who has lived through more than one swing in the court majority.

  13. Submitted by Carlos Mariani on 08/17/2010 - 12:22 pm.

    Very good piece. You can bet many of us in the state legislature are not dismissing out of hand some of the concerns “tenthers” raise. We in fact do constantly struggle to understand the proper balance between federal and state exclusive authority. And generally, we do see that as, truly a “balance” of powers puling in the same direction for the public good.

    But , as we sincerely worry about possible excessive federal action, many of us do not accept the simplistic argument that states have supreme rights of governance relative to federal authority. We don’t look to the Constitution to spell out in every detail what only a state has authority to do. We look to it to guide our sense of balance with federal authority in the best service of our state’s residents. In doing this we certainly assert a strong sense of responsibility that allows us to challenge the feds to work with us as equals in many ways.

    Tenthers basically dispense with this mature understanding of balancing state and federal relationships in favor of a simplistic – and dogmatic – formula that asserts “if it ain’t written, the feds can’t do it”. This strikes many state legislators as impractical. We appreciate the call to vigilance relative to possible excessive powers by the federal government but many state legislators also reject this simple approach to the exercise of power. Our legislative efforts often involve initiatives that seek to maximize the benefits of both federal and state policy for our people.

    And, the truth is, there are times when states need the push from the federal government to live up to our constitutional obligations. I guess my only concern is that, sometimes the feds need a push from states as well, and we aren’t’ as influential in doing so.

    Finally, on another note, we should not be referring to the new federal health care reform act as “Obamacare”. That is not what the law Is called and the description is one that those opposed, to both the law and the authority of the federal government to implement it, use to de-legitimize this public policy initiative and in fact, lends ammunition to the “tenthers’” arguments of de-legitimate exercise of power by the federal government.

  14. Submitted by Glenn Mesaros on 08/17/2010 - 01:48 pm.

    Here’s a little known fact that is willfully ignored by too many people, left and right: Ronald Reagan voted for Franklin Roosevelt four (4) times, and reitered his support for FDR at the official 1982 commemoration in the White House of FDR’s birth in 1882. The press asked him, why are supporting FDR when you oppose New Deal programs? He said, “I supported the New Deal, but opposed the Great Society (LBJ) programs.” Reagan lifted the words “Rendezvous with Destiny” at his Nomination speech from FDR’s speeches in the late 1930’s.

    Tentherism is a non issue. Just because some politicians talk about it does not mean it is a viable program. Just refer to Karl Rove’s wedge issues. Republicans do not need state vetoes to stop Obamacare; they can, and will, defund it, before they repeal it.

    Now if you review the libertarian oriented politicians, and related idiots, like Glenn Beck and Rand Paul, who talk forever about the Founding Fathers, you will see that they carefully avoid talking about Alexander Hamilton, the founder of modern American capitalism. Hamilton worked closely with FDR’s ancestor, Issac Roosevelt, in setting up the Bank of New York, as a model for the later Bank of the United States.

    Now, your next assignment is to demonstrate how radically different the Federal Reserve system, created in 1913 by Wall Street, and Woodrow Wilson, differs from Hamilton’s Bank of the United States.

  15. Submitted by Paul Brandon on 08/17/2010 - 01:55 pm.

    Actually the Revolution was funded by the French (by the end of the war there were more French troops on the field than American, and of course they were fighting Hessian mercenaries rather than Tommies). Truly a proxy war between Britain and France. You’re right — things haven’t changed a whole lot.

  16. Submitted by Craig Westover on 08/17/2010 - 02:18 pm.

    I want to second the comment by John E Iacono — Washington did NOT dismiss the “tenther” objections out of hand, but instead sought persuasive argument from Hamilton… Hamilton’s argument was that the national bank was “necessary and proper”, and therefore authorized. He did NOT argue that the government can “do anything it wants,” nor did he argue that the tenth amendment was of no force or effect.

    Two points relevant to the discussion: Washington, a Federalist, took the constitutional debate seriously. He did not denigrate Madison, Jefferson and Randolph as 18th century “tenthers.” Absent a court case, he properly put the burden of proof on his administration to demonstrate why the proposed government action was constitutional. He did not (as Rep. Pete Stark so bluntly put it) argue that the federal government can do anything it wants,” which puts the burden of proof on unconstitutional side of the argument. In other words, despite his Federalist leanings, Washington made the assumption of liberty and not an assumption of constitutionality (the rational basis test used by the court in economic liberty cases.)

    Given Washington’s methodology and Hamilton’s reasoning, where is the “necessary and proper” argument for the federal health care act? Certainly it did not take place in the two decades between (apologies to Mr. Mariani) “Hillarycare” and “Obamacare.” It did not take place during development of the legislation. There has not been any meaningful discussion; constitutionality was (is) assumed by the power brokers and dissidents are denigrated as “tenthers.”

    It is that today power brokers and policy makers disregard the Constitution, not disagreement over constitutional interpretation, that is most offensive to the American spirit.

    (Hamilton, by the way, interpreted the “General Welfare” more broadly than Madison. Madison felt the clause specifically referred to the enumeration of powers in Article I Section 8. Hamilton’s “necessary and proper” interpretation expanded constitutional authority to government action that benefited the “general” welfare guided by the necessary and proper clause; it did not extend, Hamilton believed, to government action on behalf of specific special interests. Both Madison and Hamilton would be appalled at the notion that redistribution of wealth is considered within the parameters of the General Welfare clause.)

  17. Submitted by Andrew Kearney on 08/17/2010 - 03:14 pm.

    Terrific essay and great discussion. Jacobsen rightly calls for pragmatism but what I see missing is a specific accountable process for bridging the gap between ‘necessary and proper’ federal legislation when it intersects with a reasonable (or wholly in some eyes) state right. Can the federal government by-pass state legislatures in expending money and developing services?

    When the Congress passes a law states are often required to come into compliance by completing a state plan and/or by approving the expenditure of federal money within the state. The MN law for taking such action is in place and requires legislative oversight. I have found it curious that in many instances and it varies by committee our Legislature does not take its oversight obligation or right seriously.

    For education the legislature is more exemplary as they have recently reigned in the Commissioner’s powers to promulgate rules regarding federal programs-for example disallowing a group of attorneys (Kappahahn’s sufficiently wise?) within the Monitoring and Compliance section to ‘make state law’ by interpreting federal law as they see fit. An example of where the Legislature is more removed is the various Human Services offered where federal funds are involved. State executive department staff ‘negotiate’ with federal staff and then create programs often without going through the rule making process. Too often I have heard committees just accept, “the federal government requires us to do this.”

    The Legislature should review line by line the use of federal money-specifically discretionary money (remember the commissioner’s use of federal dollars to do her own study of Q-Comp-who approved this?) and to require an in-depth report from the departments on how and who is setting up federal state programs. The Race to the Top was a good example of the Legislature being by-passed. This on an issue that for most of our history was considered the prereogative of state legislatures.

    The legislature should not allow the executive branch to administer federal programs without legislative oversight. State department staff sometimes say when asked about their statutory authority that no state rule is needed because their actions are allowable under federal statute. One wishes for a tenther in the room and gets the distinct aroma of unconstitutionalism.

    For those of you comfortable with a diminished tenth restraint on federal law are you comfortable with the executive branch in a state being the executor of federal policy with out legislative oversight-remembering that in all American constitutions the legislature is the lead branch of government.

  18. Submitted by Paul Brandon on 08/17/2010 - 03:24 pm.

    “the executive branch in a state being the executor of federal policy with out legislative oversight….”

    Isn’t this what we’ve had for the past eight years?

  19. Submitted by Tom Miller on 08/17/2010 - 03:27 pm.

    The United States became independent in 1776. The constitution was fully ratified in 1791. Whether it was the intention of the framers or not, Washington had been a United States citizen for more than 14 years before taking office.

    One other possibility for the 14 year requirement is that Hamilton moved to the U.S. in 1772, and the 14 year requirement would have allowed him to be president even though he was not born in the U.S.

  20. Submitted by John E Iacono on 08/17/2010 - 05:00 pm.

    (#16)Paul Brandon says:
    “Actually the Revolution was funded by the French…”

    Sorry, Paul, I have to disagree in this wise:

    >At the original decision to go to war with Britain, there were no French funds on hand — wealthy Americans provided them.

    >In the first years of the war, it was American wealthy persons who advanced the funds, and they never stopped providing them, particularly in times of crisis.

    >Funding, always meager, came from the colonial legislatures as well. And from the issuance of “Continentals” by the congress (these soon became worthless as they were not redeemable in specie, giving rise to the saying “Not worth a Continental”.)

    >When American resources ran low, American emissaries scoured Europe for loans to support their cause. Some French, some Dutch and, I believe, some Spanish monies were obtained. But these were not funds from governments, but from the wealthy and bankers in those countries.

    >They also encouraged interested parties in France (where liberty was a hot button issue) like LaFayette to come physically to their aid.

    >And they recruited and paid for Hessian mercenaries (a common practice at that time — the Pope’s army is Swiss mercenaries to this day).

    >None of these funds or troops were “provided by the French (government)”.

    >When other funding was getting scarce the emissaries hit up the French crown (Franklin was good at it) and got “loans.”

    >It was only after King Louis got some confidence that the Americans could win it that (thanks to Perry) he decided to get into it, with the hope of giving a black eye to the British.

    >This was toward the end of the war, as French involvement made it a world war, and King George lost some stomach for it.

    >He was also deeply in debt (the reason for those taxes on the colonies in the first place), and Parliament was suffering from war weariness after over six years of dragged out conflict with no end in sight (sound familiar?).

    >Funding for the Revolutionary war came from American wealthy supporters, some of whom had signed the Declaration of Independence and did indeed put “their fortunes” on the line for the cause.

    >And it came from foreign investors hoping for good returns.

    >And it only toward the end came from the French government.

    >This late involvement may have been pivotal at the end, but it would be wrong to claim that “the French funded” the war.

  21. Submitted by Paul Brandon on 08/17/2010 - 05:27 pm.

    In other words, a very practical political kluge that allowed the founding fathers to be presidents while writing a document for future generations.

  22. Submitted by John E Iacono on 08/17/2010 - 05:28 pm.

    Slight correction:
    The Americans used mercenaries. Not sure if they were Hessians. Have to check.

  23. Submitted by Paul Brandon on 08/17/2010 - 08:27 pm.

    And there were some mercenaries on the American side; both Indians and European soldiers of fortune, but unlike the British Hessians, they did not make up the bulk of American troops (that’s a more recent innovation).

  24. Submitted by Paul Brandon on 08/17/2010 - 08:29 pm.

    And final quote:
    “As for the Revolutionary military officers, in 1777 John Adams complained to his wife Abigail that they were “Scrambling for Rank and Pay like Apes for Nuts.”

  25. Submitted by Paul Brandon on 08/17/2010 - 09:39 pm.

    Looks like a lot of my Wikipedia quotes didn’t get posted.
    Short form — the French (both private and government) invested enough money and resources in the American Revolution to financially stress their economy.
    By the end of the war, there were as many French troops (and they were better trained and equipped) than American.
    While it was an overstatement to say that the French funded the revolution in the sense that they were the major source of funds, they did make a major contribution.

  26. Submitted by Stephan Flister on 08/17/2010 - 10:33 pm.

    Just for the record, my birther’s take on George Washington was a joke.

  27. Submitted by Paul Brandon on 08/17/2010 - 11:01 pm.

    Final point on Hessians–
    George III belonged to the House of Hesse (his native language was German) and the ‘Hessian’ troops were supplied by his various German allies (leaders of various principalities, since Germany as a nation didn’t exist yet).
    Rather than true mercenaries (fighting for the money) they were mostly conscripts, debtors, etc.
    While several thousand (maybe a quarter of the total) ended up settling in American, it seems unlikely that any of them fought on the American side.

    And Stephan — the joke was obvious, but the birthers would also be a joke if they weren’t being taken seriously by a few don’t-bother-me-with-the-facts types.

  28. Submitted by Paul Scott on 08/18/2010 - 04:46 am.

    Craig Westover asks: Given Washington’s methodology and Hamilton’s reasoning, where is the “necessary and proper” argument for the federal health care act? Certainly it did not take place in the two decades between (apologies to Mr. Mariani) “Hillarycare” and “Obamacare.” It did not take place during development of the legislation. There has not been any meaningful discussion; constitutionality was (is) assumed by the power brokers and dissidents are denigrated as “tenthers.”

    The debate over whether the federal government should require the purchase of health care was carried out in the 2008 election. Opponents of this bill do not impress me very much with their feigned surprise — the entire issue was an expansion of a GOP idea first voiced by Bob Dole, and then carried out in MA by their presumptive 2012 candidate Romney and then elucidated very clearly by Obama 2008. This sense of having something “shoved down their throats” is simply more refusal by the right to accept the results of a free and fair election which gave dems both houses in veto proof majorities and the executive branch, a refusal which should trouble us all. The suggestion that the congress should have entertained a constitutional merits period of debate is equally unserious, as simply crafting the bill of such a scale — especially given the wasted time trying to win even one vote from GOP obstructionists and “Blue Dog’ Dems was an overwhelming task in itself. Mitch McConnell would have used a period of constitutional debate in good faith? Hah! Good one…

  29. Submitted by Paul Udstrand on 08/18/2010 - 09:25 am.

    #5-The “Tenthers” are arguing, in effect, that the Federal Government has no right under the constitution to protect the general public from the creation of such a wealthy oligarchy.

    There’s also a little fuzziness in Tenther quarters as whether or not the government has the right to prevent the emergence of a Theocracy.

    #10- I think everyone agrees with the “living, breathing” document concept to a point,

    You are mistaken sir. Originalists like Scalia, Thomas, and Bork explicitly reject the notion of a living document. Elsewhere in this series we’ve had a lengthy discussion about the literalist/fundamentalist nature of the Tenther/Republican mindset.

    The thing I appreciate about Washington, and the thing that is missing from so much of the contemporary debates and discourse is the sense of intellectual integrity. Washington wasn’t trying to win a high school debate, he was actually trying to make a good decision based on information and sound reasoning. This contrasts completely with the likes of Pawlenty and Emmer who are merely promoting and ideology. These people have no integrity, they just want to win.

  30. Submitted by John E Iacono on 08/18/2010 - 12:45 pm.

    “A living document” means one that has life and meaning still. A “dead” one is one that no longer applies in the present day.

    “A living document” does NOT mean one that has been “reinterpreted” into meanings alien to its original meaning, as revisionists would make it.

    I would argue that Scalia, Thomas, and Bork(?) are in fact the ones who attempt to keep the Constitution a living document, and the revisionists the ones who in fact want to kill it by eviscerating it of its clear and original meaning.

    To “apply to current facts” does not, and SHOULD not mean to give it meanings it never had.

  31. Submitted by John E Iacono on 08/18/2010 - 12:56 pm.

    By way of an example, from Scripture:

    When Joshua fought the battle of Jericho, the text says “…and the sun stood still…” and the battle continued.

    “Revisionists” (though they did not know it) said: “Wow! a miracle! The sun stopped in its tracks!”

    But scripture scholars, researching what that phrase meant in biblical times, learned that for those folks who originally wrote that text, it was their manner of saying “…and the sun set”, and the real significance of the event was that the fighting continued even in pitch darkness — unheard of in wars then, when it became difficult if not impossible to see with whom one was fighting.

    Those who insist on probing the meaning of the Constitution to those who wrote it are the scholars; those who would “reinterpret” it in light of current predilections are the revisionists.

    Let’s once and for all be clear about that.

  32. Submitted by Paul Brandon on 08/18/2010 - 07:52 pm.

    Final mercenary post–
    Obama has just announced that the troops in Iraq will be replaced by ‘contractors’ — read ‘mercenaries’.

  33. Submitted by Paul Udstrand on 08/19/2010 - 09:51 am.

    You can read the previous discussion I’ve been referring to here:

    Starting with comment #37.

  34. Submitted by Paul Udstrand on 08/19/2010 - 12:20 pm.

    Hmmmm, I thought I had posted a comment drawing attention to John’s scriptural interpretation of the constitution and his definition of any attempt to really treat the constitution as a living document as revisionism. Either I screwed up the posting process or someone decided to post it. Consequently, #34 lacks some context.

    At any rate, John’s definition of a living document precludes interpretation in light of contemporary issues and reality. This is not a widely held definition of living documents. Rather living documents are document that are subject to revision in the light of new information or perspectives. John’s attempt to pretend that conservative Republicans share a belief in the constitution as a living document is clever, but misleading.

    John’s use of a scriptural comparison is a perfect illustration of the Tenther-fundamentalist-Republican tendency to treat a secular constitution as if it’s scripture, thereby deifying select authors. This is the discussion I refer you to in #37 in the previous thread:

    This approach displaces history with historical fantasy and requires reliance on the conservative’s special constitutional knowledge. It makes constitutional law a matter of revelation rather than interpretation.

  35. Submitted by John E Iacono on 08/19/2010 - 12:39 pm.

    From the previous discussion referred to #34 it seems clear that viewpoints have not changed on either side in the interim.

    So I guess that’s all I’ll have to say about that.

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