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Saturday, February 27, 2010

"Tenthers," the General Welfare Clause, and Certain Dumb Masses...

For the most part, I have not dwelt too heavily on the Tenth Amendment to the United States Constitution. Not that I haven't written a bit about it from time to time, but it hasn't been a subject on which I've dwelt extensively. This is principally because, though I do think the Tenth Amendment is, and has been, routinely violated by various elements of the federal government, I do not think that the principal source of federal power-grabbing is to be found in explicit denials that the amendment means what it says. Hardly anyone, as far as I can tell, actually disputes that the amendment means what it says. Instead, those intent on expanding the scope and power of the federal government, it seems to me, do so by deciding that other parts of the Constitution do not mean what they say. One of the most infamous cases is that of Wickard v. Filburn, in which the Supreme Court found, in Tony Blankley's words,
...that a farmer who grew some grain on his own property and himself consumed it on that same property had entered interstate commerce (and thus could be regulated by Washington) because by not being in interstate commerce, he was affecting interstate commerce and thus was being in interstate commerce.
Another famous case, of course, is Roe v. Wade, wherein the high court manufactured a right for unwed mothers to murder their unborn children out of the "emanations and penumbras" of the Constitution--in other words, they made it up out of thin air. To my mind, when you have judges who are capable of deciding that the power the Constitution gives to the federal government to regulate commerce between the states is actually a power to regulate things affecting commerce between the states, or that a privacy right that is not actually spelled out in the Constitution trumps the right to life, the problem is not so much in deciding what any part of the Constitution says, but in deciding how to remove such idiots or liars from the bench. Accordingly, although I have written about the Tenth Amendment, it has been less a concern of mine than has been the appointment of what are now commonly called "strict constructionist" judges.

Some months ago, though, a local lib blog posted some ill-informed, snidely condescending comments about "Tenthers"--people who regard the Tenth Amendment as a serious brake on the power of the federal government--as an introduction to a link to further ill-informed, snidely condescending comments about Tenthers. This is a common thing on that particular blog. Although I have not and will not take the time to do an actual count, I don't think I am being unfair in saying that probably three-quarters of their posts follow this pattern: they will utter some leftist position, buttressing it with absolutely nothing of their own save snark, none of their own research or their own thinking, by way of introducing a link to another leftist web page, which they rather obviously consider to contain or elucidate definitive proof of whatever drivel they happen to be railing about on that particular day. I am used to it, and indeed, subscribe (via Google Reader) to their blog largely for the amusement value. However, this particular post did not amuse me. It annoyed me considerably, being a near-perfect alloy of ignorance and condescension, an exercise in mocking others for their alleged biases, lack of reason, and ignorance, whilst simultaneously demonstrating beyond reasonable doubt that the authors had absolutely no clue what they were talking about. Well, I suppose they might not have been as utterly ignorant as they appeared. They might simply have been lying, though I have a hard time imagining what advantage they might have thought would accrue to them, so I tend to discount that possibility. At any rate, the post annoyed me, and I determined to respond to the ideas therein as soon as I had calmed down enough to address them with a minimum of rancor (The attentive reader will have noted that I do not link to the posts to which I refer. That is deliberate, part of a deliberate attempt to respond to the ideas, not simply ridicule the authors thereof.) Several days ago, I began plotting the post out in my head, and had determined to work on it this weekend, thinking myself fully mentally prepared to be a dispassionate writer.

Then I opened up Google Reader yesterday afternoon, and what did I find? I found that these local lib bloggers had uttered yet another screed against "Tenthers," this one, like the last, being largely an introduction to another statist site, and, like the last, dripping with condescension quite unwarranted by any sign of more than surface-level knowledge on the part of the offending bloggers. To say the least, my annoyance has been rekindled.

My word, these people actually mocked people for supposing that the Tenth Amendment was written to--I alter the quote only slightly, enough so that it will be difficult to Google--"give the states protection from the big, bad federal government." This is simply stunning, or, rather, indicative of a stunning level of ignorance. Can the authors truly be so ignorant as not to know that the entire Bill of Rights, not merely the Tenth Amendment, was written for that specific reason? To give the states protection from the big, bad federal government? To suppose that they might indeed be so ignorant hardly flatters them, but I can't help but think that the only alternatives are that they are terribly sloppy writers or unusually bad liars, neither of which are particularly flattering assessments, either.

I will wait no longer, but I will try to hold my sarcasm in check as we explore the subject.

First, let me give a bit of helpful background information. Did you know that the United States has not always been universally considered one country? To be sure, some have always considered it so, but this sentiment has not only been far from universal, some of our earliest political documents consider it downright contrary to the facts. Going right back to the Articles of Confederation and the Revolutionary War, we find that, far from the United States being considered one country, one state, it was considered that (emphasis mine):
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
It is also noteworthy that the British Empire did not make peace with one country, but, according to the Treaty of Paris that concluded the Revolutionary War, emphasis again mine:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.
That is, the British Empire made peace with thirteen independent states, acting together in league, to be sure, but independent states nevertheless.

The United States continued to act together under the terms of the Articles of Confederation, but, eventually, as certain problems inevitably arose under those terms, some desired to unite the thirteen states somewhat more firmly, and a convention was called--a convention that was ostensibly to consider amendments to the Articles of Confederation, but which rapidly turned into an instrument by which a whole new government was to be created, a federal government--not quite, in the usual sense, a national government, but something a bit stronger than a simple league of states. Saying that this was controversial is understating the matter considerably. More than a few people considered the whole affair an unconscionable power grab and argued vociferously against the proposed Constitution and the new federal government. Others considered the stronger government outlined in the Constitution essential to the survival of the states and the protection of the people's liberties. Understanding this situation--that the Constitution was controversial, that those who opposed the Constitution argued that the proposed government would usurp the powers and rights of the states and of the people, whilst those who promoted the Constitution insisted that it would not do any such thing--is key to understanding the issues surrounding the Tenth Amendment.

The Tenth Amendment is simple enough. It simply reads:
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.
And you know, it is actually not all that common to find anyone arguing that it doesn't mean what it says, or that it is hard to understand. I suppose that the language is too clear for even leftists to obfuscate. What does it mean? To state it even more succinctly than does the amendment itself is difficult. It simply means that if the Constitution doesn't give the United States--the federal government--a power, it doesn't have it. Instead, those powers are held by the States or by the people. Instead of arguing that the amendment means anything else, the people mocking "Tenthers" generally make arguments along these lines (where words are in quotes, direct reference is being made to something said in one of the aforementioned lib-blog posts, or in something to which they've linked):

  • "Tenthers" read the powers granted to the federal government too narrowly to permit some of the "progress" the federal government has made since the Roosevelt administration.
  • The South left the Union because they held that the federal government was encroaching on their rights as sovereign states.
  • "Tenthers" are often found in association with "Tea Baggers," the offensive and derisive term often applied to people associated with the Tea Party movement.
  • A "Tenther" understanding of the Constitution prevents our "democracy" from enacting wildly popular legislation and inhibits the will of the people.
  • The "plain language" of the "general welfare" clause allows the federal government to raise taxes and spend money for the benefit of the American people--the "benefit of the American people" being, apparently, whatever Congress can get enough votes to pass.
  • The "Tenther" understanding of the Constitution is "novel," a "fringe" way of understanding the document.

Saying that all these arguments--it is hard to dignify them with the term "arguments," really--are utterly vacuous is too kind. I will deal with them in the order I've listed them.

"Tenthers" read the powers granted to the federal government too narrowly to permit some of the "progress" the federal government has made since the Roosevelt administration.

This is not so much an argument as it is pathetic whining. We "Tenthers" are not reading the powers narrowly; we are simply reading them as they are written. It is not our fault that the words do not say what statists wish them to say. It is not our fault, for example, that the commerce clause does not, in spite of the idiocy embodied in Wickard v. Filburn, actually say that the federal government can regulate things affecting commerce, giving the patently absurd result that a farmer can be so regulated as not to be allowed to grow grain on his own land for his own consumption. It is not our fault that the Constitution contains nothing authorizing the federal government to operate a retirement program. It is not our fault that the Constitution contains nothing authorizing the federal government to redistribute wealth from those who have it to those whom statists deem poor. The Constitution provides procedures for its amendment; if statists wish it to say something other than what it does say, the proper recourse is to pursue amendments that will make it more to their liking.

Mercy. Boo-hoo. Those big bad conservatives are insisting on the letter of the law. How awful of them. Could it be any more pathetic than that?

The South left the Union because they held that the federal government was encroaching on their rights as sovereign states.

This is true. It is also not an argument against the "Tenther" understanding of the Constitution. It is simply a ham-fistedly transparent attempt to associate a "Tenther" understanding of the Constitution with racism and slavery, thus rendering "tentherism", in statists' minds, "hate speech" which they need neither respond to or refute in any serious fashion.

"Tenthers" are often found in association with "Tea Baggers," the offensive and derisive term often applied to people associated with the Tea Party movement.

This is also not an argument against "tentherism." It is simply an attempt to associate "tentherism" with a movement that statists consider to be made up principally of lunatic conspiracy theorists--and which they refer to using a term associated with certain homosexual practices. I am not the first to notice, I am sure, that statists talk about tolerance and respect for homosexuals, but when they wish to disparage someone, they don't hesitate to mock them as though they were homosexuals. But that is beside the point--the point being that this is not an argument, it is simply an attempt to smear, to tar by association, and has absolutely no credibility with anyone who is not already of the statist persuasion.

A "Tenther" understanding of the Constitution prevents our "democracy" from enacting wildly popular legislation and inhibits the will of the people.

This argument, such as it is, is particularly irritating for the simple reason that it is not our "democracy," it is our "republic." It has apparently not occurred to the learned eminences of the left that the point of having a republic instead of a democracy is precisely to prevent the rights of the few from being trampled under the desires of the many. Again, the Constitution provides procedures for its own amendment. If simply reading the words as meaning what they say prevents the enactment of "wildly popular" legislation, then it should be no problem to pass amendments allowing such legislation. That they would rather establish their "wildly popular" legislation in spite of what the Constitution says rather than pursue such amendments speaks volumes as to the actual popularity of their ideas. Nor should it escape attention that the people arguing against "tentherism," far from actually being learned eminences, apparently do not know enough about their own government to correctly identify its nature.

The "plain language" of the "general welfare" clause allows the federal government to raise taxes and spend money for the benefit of the American people--the "benefit of the American people" being, apparently, whatever Congress can get enough votes to pass.

This objection actually has some historical legs, in that people who favor a more powerful federal government have been making more-or-less this argument for many decades. Accordingly, the response to this idea will take up the bulk of my time in this post.

Let's look first at what we mean by "the general welfare clause." We are talking, not about the first appearance of the words "general welfare," which is in the preamble and simply refers to the reasons the people are ordaining the Constitution, but to the language in Article I, section 8, that reads:
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;
It is the "plain language" of this section in which statists purport to discern a power given to the federal government to operate a retirement program, to effect transfers of wealth from one body of people to another, to "reform" health care, and anything else which Congress cares to label necessary for the welfare of the country. The remainder of section 8, if you care to follow the link, enumerates specific powers given to Congress.

One cannot be unjustified in asking whether the statist interpretation of the general welfare clause is legitimate. Anyone interested in the truth must ask this question. And at least part of the answer is that no one said so when the Constitution was in the process of ratification! Oh, statists will point out that various of the Founding Fathers, including Madison and Hamilton, later advocated more expansive views of the general welfare clause, and that is true. They were, after all, politicians, and like politicians in every time and place, they interpreted words as suited their purposes at any given time. But at the time of ratification, as I said earlier, the argument was between two camps: the anti-federalists who opposed the new Constitution and the federalists who championed it. The anti-federalists feared that the new Constitution would be abused by people interpreting the general welfare clause in precisely the manner statists interpret it; the federalists strove mightily to convince the people and the states that the general welfare clause could not possibly be so interpreted. No one, my friends, no one, was arguing at the time that the general welfare clause should be interpreted as the statists interpret it! All of the literature of the time is shot through with proofs of this. I found it amusing that one of the writers to whom I have been alluding said that "tenthers'" "basis for ignoring the plain language of the Constitution is A statement by James Madison..."

"A" statement, my friends? The reality is considerably different! The whole of The Federalist Papers reads like one long denial of the possibility that the federal government will have powers anything like those of which the statists dream. This is but one of many quotes which might be produced, but it is instructive, as here Madison addresses the very bit of text into which the statists are anxious to read so much federal power. Emphasis, where present, is mine and in bold:
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare." The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the ommon defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
It is difficult to overstate the importance of this section of Federalist 41 when it comes to the meaning of the general welfare clause. For those statists who are still in a state of confusion, let me help you: James Madison, a man often styled as "the father of the Constitution," directly addressed the very argument which you put forward about the general welfare clause, and said that it was an "absurdity," that it was, in fact, proof that opponents of the Constitution were grasping at straws in their desperation.

"But wait!" The statists will cry. "Hamilton disagreed with Madison on this." And it is certainly true that later, as Secretary of the Treasury, in his celebrated Report on Manufactures, Hamilton did try to stretch the General Welfare clause a bit (though not, I think, to the extent that some paint him as having done), just as he tried to redefine "necessary" in the "necessary and proper" clause when he was trying to get his bank bill passed. But at the time of ratification, he didn't disagree with Madison. In Federalist 83, he wrote, emphasis again mine:
The plan of the convention declares that the power of Congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.
Hamilton, with admirable brevity, simply restates part of Madison's argument. That he artfully tried to expand on the meaning of the Constitution's words later on doesn't show that the words mean what statists think they mean; it shows that Hamilton, for all his brilliance (and he was brilliant) was a politician and not above normal political behavior.

You might ask, "But if all that is true, what, then, does "general welfare" mean in this clause?" It is very simple: it means that the federal government doesn't get to play favorites. Whatever it does has to be for the welfare of the whole country, not any given state, any given city, any given individual. General welfare as opposed to the welfare of some special person or group. Simple enough when you stop to think about it, isn't it?

I need hardly demonstrate that the anti-federalists feared rather than championed the statist interpretation of the general welfare clause.

The plain fact of the matter is that it is obvious to anyone who cares to do the reading that the Constitution was promoted, to the citizens of the state of New York in particular, as not giving to Congress any powers not specifically enumerated, and further, that the general welfare clause specifically did not grant some sort of "general legislative authority" to do whatever Congress might decide it wanted to do in the name of the general welfare. Some of the Founding Fathers may have waffled on these points at other times, but not when they were trying to get the Constitution ratified. It was on the "tenther" understanding of the Constitution that it was, if you will, "sold" to the country, not the big-government understanding.

The "Tenther" understanding of the Constitution is "novel," a "fringe" way of understanding the document.

This last criticism ought, in any reasonable person's eyes, to have been completely demolished by the preceding material, but it is so over-the-top wrong that I feel compelled to state the obvious: It was the "tenther" understanding of the Constitution that Thomas Jefferson and his "Democratic-Republicans" championed. They ruled the roost for the first quarter of the nineteenth century. The statements by Jefferson alone on this subject are so numerous that I actually found one entire web page devoted to them! Here is a sample, wherein Jefferson speaks directly to the statist interpretation of the general welfare clause. Again, emphasis is mine:
...our tenet ever was, and, indeed, it is almost the only landmark which now divides the federalists from the republicans, that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money. I think the passage and rejection of this bill a fortunate incident. Every State will certainly concede the power; and this will be a national confirmation of the grounds of appeal to them, and will settle forever the meaning of this phrase, which, by a mere grammatical quibble, has countenanced the General Government in a claim of universal power. For in the phrase, “to lay taxes, to pay the debts and provide for the general welfare,” it is a mere question of syntax, whether the two last infinitives are governed by the first or are distinct and co-ordinate powers; a question unequivocally decided by the exact definition of powers immediately following.
And, to bring it all home, here is Jefferson on the Tenth Amendment itself:
I consider the foundation of the Constitution as laid on this ground that "all powers not delegated to the U.S. by the Constitution, not prohibited by it to the states, are reserved to the states or to the people". To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.
I do not pretend to have made a complete presentation of the case for "tentherism." I am but an armchair scholar. I do think it plain, however, that those blogospheric screeds to which I earlier referred reflect either profound ignorance or profound disingenuousness. Taking the "tenther" view of the Constitution is not a historical anomaly. It is nothing novel, nothing from the fringe of American political thought. It is the view on which the Constitution was promoted to the American public when presented for ratification, the view which dominated American politics for at least the first quarter of the nineteenth century, and arguably for most of the hundred years following that. To present the "tenther" view as something akin to a cult, to make its adherents out to be unreasonable and ahistorical, is to reveal oneself stunningly ignorant of the facts, willfully obtuse, frighteningly stupid, or, perhaps, just plain lying--or perhaps some spectacular combination of all four.

1 comment:

  1. Why are all of the “crazy” all being labeled as a form of “-ers”? On a related question…why are all controversies called something-gate? I’m sure it is some harkening back to Watergate but goodness it is getting silly.