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Big distortion hidden in conservatives' rhetoric about U.S. Constitution

What was the biggest transfer of power to the federal government in U.S. history?

If you think it’s the passage last year of the big health care bill (excuse me, I mean the cramming that bill down the throats of the American people), you’ve been listening to too many hysterics on the radio and TV.

In terms of long-term impact on taxing and spending, or even just in terms of its impact on U.S. health care, the creation of Medicare and Medicaid in the 1960s was much bigger. Of course, the 1930s New Deal, taken as a whole (which would include the creation of the original entitlement program, Social Security) would also be bigger and paved the way so many other new federal powers and federal “intrusions” into the economy that have followed.

But really, the post-Civil War amendments (numbers 13, 14 and 15), which truly were crammed down the throats of the conquered southern states (they had to ratify them to get their representatives back into Congress and to get federal occupation troops off their territory), were bigger still and broke the back of “states’ rights.”

But the biggest transfer of power ever to the U.S. national government is the one Republicans accidentally celebrated last week with the symbolic reading on the House floor. The biggest ever was the drafting (1787) and ratification (1789) of the U.S. Constitution.

Of all the half-truths and untruths that conservative Repubs have been slinging about the Constitution, the biggest is the distortion of the framers, namely the effort to portray them as a bunch of small-government states’ righters.

It’s just bass-ackwards.

Those who framed the Constitution and favored its ratification believed that the United States needed a strong federal government. That’s why they are referred to the “federalists.”

As with many complex historical questions, if you are willing to focus only on evidence that suits your purposes and ignore the rest, and if you ignore historical context, you can construct almost any reality you want. Choose to notice this quote, leave out that one, and Abe Lincoln becomes a virulent racist. Put in these facts and avert your eyes from these ugly ones over here, and Benedict Arnold is an American hero.

The big fact
In the case of the Constitution, the big fact from which righties prefer to avert their eyes is that the Constitution of the United States is actually the second constitution.

Before 1789, the structure of the national government, its powers and its relationship to the states and the people was delineated in the Articles of Confederation, which was the real weak-national-government, strong-states, anti-tax system.

Today’s “constitutional conservatives” keep trying to enlist the federalists to lead the charge against federalism. But I daresay the main action in the period during which the Constitution was created is consistent with these statements:

From 1777 (the middle of the Revolutionary War) until 1789, the national government of the United States was called the Articles of Confederation. Under the Articles, the national government had no power to tax. There was no federal judiciary. There was no permanent executive branch such as we would recognize today, just a one-house legislature. Small and large states all had equal power. A supermajority of states was required for important laws to be passed, which made it difficult to pass any national legislation at all.

Congress lacked any power to regulate interstate commerce and really had no power over business activity or the economy more generally. Members of Congress owed their positions directly to the state legislatures, not to the people of the states. Oh, and members of Congress were term-limited.

In short, the U.S. system was a dream-come-true for those who favored (or now favor) a least-government approach and especially those who felt state governments should be strong and the national government weak.

The major players who created the replacement system that we call the Constitution — James Madison, Alexander Hamilton, Ben Franklin (to mention three of the most famous and influential of them) and George Washington (who came out of retirement to chair the Constitutional Convention and lend his enormous Revolutionary War prestige to the effort) — were united by the belief that the kind of great nation they envisioned would require a much stronger national government, one that would, as Washington wrote, have the “energy and dispatch” to oppose the states’ “thirst for power.”

Patrick Henry
George Bagby Matthews
Patrick Henry

I don’t want to be guilty of the same selective perception of history as I described above. To be sure, in the 1780s there were anti-federalists who favored a weak national government and who opposed the Constitution. The most famous of them was Patrick Henry (“give me liberty or give me death”) who stayed away from the Constitutional Convention, saying he “smelled a rat,” and used his considerable influence to try to prevent Virginia from ratifying the Constitution.

And yes, to be sure, the anti-federalists were neither few nor insignificant. They represented a sturdy fear among Americans in 1787-89 about the dangers of a powerful government, based in a faraway capital. Today’s “constitutional conservatives” would find much in common with this faction.

A lost argument
But Patrick Henry lost that argument in the Virginia ratifying convention, and the anti-federalists lost the overall argument. The campaign for ratification was a close call and federalists (Madison and Hamilton remained very active here, including their anonymous authorship of the famous essays we now call the “Federalist papers,” which sought to reassure nervous states’ righters) used every trick in the book. But they succeeded in cramming their proposed Constitution down the throats of the anti-federalists.

Yes, it’s also true that as part of the compromise between the federalists and the anti-federalists, Madison promised that in the very first Congress he would propose a series of amendments specifying various limits on federal power.

And he kept that promise. And that became what we call the Bill of Rights. And it’s true that Madison and his friend and ally Thomas Jefferson (who wasn’t influential in the framing of the Constitution because he was in France at the time) later became strict constructionists and anti-federalists of a sort.

But at the time of the convention, Madison was one of the chief federalists (so much so that’s he’s considered “the father of the Constitution”).

His greatest disappointment was that he couldn’t convince his fellow framers to create a direct federal power to veto state laws. That should give you an idea of where he was on federal versus state power.

But he did accomplish his main goals: a more powerful national government that could directly tax the population, could regulated interstate commerce, had a more efficient Congress, powerful new executive and judicial branches, and a few elastic clauses that would enable federal power to do what future congresses would deem necessary and proper to carrying out their mission of forming “a more perfect union.”

Yes, it’s true, federal power has continued to grow since 1789, sometimes by amendment (as with the post-Civil War amendments) and sometimes by legislation (like the New Deal programs). There are those who believe that the creation of such programs exceeds the explicitly enumerated powers of the Congress.

As our system has evolved, the chief mechanism for such challenges has been a court case, asking the federal courts to decide whether a particular law violates the Constitution.

And to the degree that the 2010 version of the argument over constitutional limits is about the big health-care bill, there is indeed such a challenge making its way through the courts, probably heading for the Supreme Court. That should settle the question, although, ironically, the power of the Supreme Court to strike down acts of Congress is itself not explicitly enumerated in the Constitution.

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Comments (14)


I think you've confused the Tea Party people with informed, history-based reasonable people who care about just government, a helpful and peaceful society, and are willing to understand and accept conflicting ideas as legitimate.

Agree with all this, except I think Mr. Black should give credit to the original leader of the federalists, John Adams. Well-read in the classics, he was convinced that an independent judiciary and a strong executive were essential. After successfully advocating for this system in the Continental Congress, those who wanted a weaker central government, led by Thomas Jefferson, defeated him in his bid for re-election to a second term as president in 1800.

But the federalist view carried the day during the creation of the constitution. I'd recommend David McCollough's excellent biography of John Adams.

Dick Adair

Thank you for an informative article on a complicated subject. Careers have been spent and millions of pages written on the Constitution. Unfortunately I fear what most people remember are the half truths, outright lies and simple slogans, especially those that are repeated in a loud voice. However, thank you for consistently trying to inject information into the discussion.

Nice Eric.

Good point about the power of the Supreme Court to rule on the constitutionality of legislation not being an enumerated power.
Think Roberts and Scalia will read it?

Nicely done, Eric, and especially relevant in light of “constitutional conservatives” like Mrs. Bachmann and Mr. Emmer, whose “conservatism” is essentially a sham based precisely on the half-truths and one-eye-closed cherry-picking of the parts of the document they like, while ignoring the parts they don’t like. Ironic, indeed, that the “activist” Supreme Court striking down laws as unconstitutional is not an explicit part of the document. Also ironic that, among the most superficially prestigious organizations on the right is the “Federalist Society.”

The argument over whether states can go it alone, regardless of what the federal government establishes as national policy, was settled at a farmhouse meeting between a Mr. Grant and a Mr. Lee in Virginia in April, 1865. Just as Patrick Henry was, in the end, not persuasive enough to convince people to continue to support states’ rights in opposition to a strong national government, neither were Mr. Lee, Mr. Calhoun, Mr. Davis, and their various allies.


Congratulations on a clear succinct distillation on the meaning of the U.S. Constitution and federal power.

This series of essays has been a good succinct review of the basics, combined with the debunking of several persistently sticky misconceptions/obfuscations. Thanks, Mr Black. That being said, I'm fairly certain that it's reach is too limited (compared to the pool of people who need to read it). Could the trifecta be submitted to the Strib of ppress as a commentary? As much as I like Minnpost, compared to these 2 the readership is rather small. Appreciate your work.

Mr. Black,

Maybe MB would allow you to attend Scalia's lectures to the "congressional classes." In fact, maybe the transcripts could be published by Minnpost? Now that would be insightful.

A crib sheet for Constitutional Conservatives:

Article I, Section 8:

The Congress shall have Power

To lay and collect Taxes, Duties, Imposts and Excises,

to pay the Debts and provide for the common Defence and general Welfare of the United States;

but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

* * *

To make Rules for the Government and Regulation of the land and naval Forces;

* * *

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.

Section 9 - Limits on Congress

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

(No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.) (Section in parentheses clarified by the 16th Amendment.)

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

Unfortunately, I don't think that Fox News will run it; that's where the people who really need it are.

Maybe it's time to mention your book onthe Constitution Eric ? It's still a fabulous piece. Here's th Amazon link :

Considerably more cash then I paid all those years ago. You are back in form. I've forgotten was the Strib that used to exist involved in helpng to fund that title ?

"Maybe MB would allow you to attend Scalia's lectures to the "congressional classes." In fact, maybe the transcripts could be published by Minnpost? Now that would be insightful."

It would be insightful in understanding how conservatives distort the constitution. Sadly, without the filter of people like Eric Black who are interested in the truth, the lectures themselves - if they are anything like Scalia's other statements off the bench - will just lead to more ignorance.

Great piece, Eric.

Conservatives are so fond of thumping their chests about how powerful the United States has become, but could we have achieved our current Super Power status without a strong national government? I doubt it. Is there any historical example of a country with a weak national government being a power on the world stage? If there is, I'm not aware of it.

One can only imagine what type of banana republic we would currently live in had the Articles of Confederation survived into modern times.