How Scalia, Et.al. Distort the Framers

7/31/2019 How Scalia, Et.al. Distort the Framers

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How Scalia Distorts theFramershttp://consortiumnews.com/2012/07/04/how-scalia-distorts-the-framers/

July 4, 2012Exclusive: In rejecting theCommerce Clause as theconstitutional foundation for the

Affordable Care Act, the SupremeCourts right-wing justices distortedAmericas founding narrative,including one made-up view

attributed to Alexander Hamilton,writes Robert Parry.By Robert Parry


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Antonin Scalia and the three otherright-wing justices who sought tostrike down health-care reformcited no less an authority on theConstitution than one of its keyFramers, Alexander Hamilton, assupporting their concern about theoverreach of Congress inregulating commerce.

In their angry dissenton June 28,the four wrote: If Congress canreach out and command eventhose furthest removed from an

interstate market to participate inthe market, then the CommerceClause becomes a font of unlimited


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power, or in Hamiltons words, thehideous monster whose devouringjaws . . . spare neither sex norage, nor high nor low, nor sacrednor pro?fane. They footnotedHamiltons Federalist Paper No.33.

A portrait of Alexander Hamiltonby John Trumbull, 1792.

That sounds pretty authoritative,doesnt it? Heres Hamilton, one ofthe strongest advocates for theConstitution, offering a prescientwarning about Obamacare fromthe distant past of 1788.


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Except that Scalia and his cohortsare misleading you. In FederalistPaper No. 33, Hamilton was notwriting about the CommerceClause. He was referring to clausesin the Constitution that grantCongress the power to make lawsthat are necessary and properfor executing its powers and that

establish federal law as thesupreme law of the land.Hamilton also wasnt condemningthose powers, as Scalia and his

friends would have you believe.Hamilton was defending the twoclauses by poking fun at the Anti-


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Federalist alarmists who had stirredup opposition to the Constitutionwith warnings about how it wouldtrample Americas liberties.In the cited section of No. 33,Hamilton is saying the two clauseshad been unfairly targeted byvirulent invective and petulantdeclamation.

It is in that context that Hamiltoncomplains that the two clauseshave been held up to the peoplein all the exaggerated colors of

misrepresentation as the perniciousengines by which their localgovernments were to be destroyed


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and their liberties exterminated; asthe hideous monster whosedevouring jaws would spare neithersex nor age, nor high nor low, norsacred nor profane.In other words, last weeks dissentfrom Scalia and the three otherright-wingers does not only applyHamiltons comments to the wrong

section of the Constitution butreverses their meaning. Hamiltonwas mocking those who wereclaiming that these clauses would

be the hideous monster.Twisting the FramersIt is ironic indeed that Hamiltons


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words, countering alarmistwarnings from his erasconservatives, would be distortedby this eras conservatives tospread new alarms about thepowers of the Constitution.Scalias distortion also underscoresa larger tendency on the Right tofabricate a false founding narrative

that transforms key advocates for astrong central government thelikes of Alexander Hamilton and

James Madison into their

opposites, all the better to fit withthe Tea Partys fictional storyline.Of course, Scalias deception


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would be an easy sell to typicalTea Party advocates, whosecertainty about their made-uphistory would be reinforced as theystand this Independence Day withthe Framers, complete with tri-corner hats from costume shopsand bright-yellow Dont Tread onMe flags.

Indeed, the Scalia-authored dissentreads more like a Tea Partymanifesto than a carefullyreasoned legal argument. The

dissent sees the Affordable CareAct, which seeks to impose somerationality on Americas chaotic


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health-insurance system, as a steptoward a despotic scheme thatwould make mere breathing inand out the basis for federalprescription and to extend federalpower to virtually all humanactivity.Some Supreme Court watcherseven suspect that it may have been

Scalias intemperate tone thatpushed Chief Justice John Robertsfrom a position of initially rejectingthe Affordable Care Act outright as

an unconstitutional use of theCommerce Clause to supporting itsconstitutionality under


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congressional taxing powers.The four more liberal justicesendorsed the laws constitutionalityunder the Commerce Clause butalso joined with Roberts on his taxconclusion, thus upholding the lawand sending Scalia and his threeright-wing cohorts AnthonyKennedy, Clarence Thomas and

Samuel Alito into a furtherparoxysm of rage.What becomes clear in reading thedissent is that not only do the right-

wing justices misrepresent the viewsof the Framers regarding theCommerce Clause, these justices


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misunderstand a central reality ofwhy the Framers wrote theConstitution in 1787.The Framers junked the states-rights-oriented Articles ofConfederation in favor of theConstitution because they wantedto solve the nations problems.Founding Pragmatists

Led by James Madison andGeorge Washington, the draftersof the Constitution crafted aprofoundly pragmatic document,

filled not only with politicalcompromises to pull together the13 squabbling states but looking


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for practical solutions to addressthe challenges of a new, sprawlingand disparate nation.The Commerce Clause, whichgrants Congress the power toregulate interstate commerce, wasnot some afterthought but ratherone of Madisons most cherishedideas, as Justice Ruth Bader

Ginsburg noted in her opinion onbehalf of the Courts four moreliberal members.Citing a 1983 ruling entitled EEOC

v. Wyoming, Ginsburg noted thatthe Commerce Clause, it is widelyacknowledged, was the Framers


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response to the central problemthat gave rise to the Constitutionitself.That problem was a lack of nationalcoordination on economic strategy,which hindered the countrysdevelopment and made the nationmore vulnerable to commercialexploitation by European powers,

which looked to divide and weakenthe newly independent UnitedStates.Ginsburg wrote: Under the

Articles of Confederation, theConstitutions precursor, theregulation of commerce was left to


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the States. This scheme provedunworkable, because the individualStates, understandably focused ontheir own economic interests, oftenfailed to take actions critical to thesuccess of the Nation as a whole.The Articles of Confederation,which governed the country from1777 to 1787, had explicitly

asserted the independence andsovereignty of the 13 individualstates, making the centralgovernment essentially a supplicant

to the states for necessary financialsupport.After watching the Continental


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Army suffer when the statesreneged on promised funds,General Washington felt a visceralcontempt for the concept ofsovereign and independent states.He became a strong supporter ofMadisons idea of a strongercentral government, including onewith the power to regulate

commerce.In 1785, Madison proposed aCommerce Clause as anamendment to the Articles, with

Washingtons strong support.We are either a united people, orwe are not, Washington wrote. If


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the former, let us, in all matters of ageneral concern, act as a nationwhich have national objects topromote, and a national characterto support. If we are not, let us nolonger act a farce by pretending itto be.Alexander Hamilton, who hadserved as Washingtons chief of

staff in the Continental Army,explained the commerce problemthis way: [Often] it would bebeneficial to all the states to

encourage, or suppress, aparticular branch of trade, while itwould be detrimental . . . to


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attempt it without the concurrenceof the rest.Madison himself wrote, regardingthe failings of the Articles, that as aresult of the want of concert inmatters where common interestrequires it, the national dignity,interest, and revenue [have]suffered.

However, Madisons commerceamendment failed in the Virginialegislature. That led him to seek aneven more radical solution

scrapping the Articles altogetherand replacing them with a newstructure with a powerful central


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government whose laws would besupreme and whose powers wouldextend to coordinating a strategyof national commerce.Building the FrameworkAs Madison explained to fellowVirginian Edmund Randolph in aletter of April 8, 1787, as membersof the Constitutional Convention

were gathering in Philadelphia,what was needed was a nationalGovernment . . . armed with apositive & compleat authority in all

cases where uniform measures arenecessary.On May 29, 1787, the first day of


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substantive debate at theConstitutional Convention, it fell toRandolph to present Madisonsframework. The Commerce Clausewas there from the start.Madisons convention notes onRandolphs presentation recounthim saying that there were manyadvantages, which the U. S. might

acquire, which were not attainableunder the confederation such asa productive impost [or tax] counteraction of the commercial

regulations of other nations pushing of commerce ad libitum &c &c.


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In other words, the Founders attheir most originalist moment understood the value of the federalgovernment taking action to negatethe commercial advantages ofother countries and to take stepsfor pushing of [American]commerce. The ad libitum &c&c notation suggests that

Randolph provided other examplesoff the top of his head.Historian Bill Chapman hassummarized Randolphs point as

saying we needed a governmentthat could co-ordinate commerce inorder to compete effectively with


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other nations.So, from the very start of thedebate on a new Constitution,Madison and other key Framersrecognized that a legitimate role ofthe U.S. Congress was to ensurethat the nation could match upagainst other countrieseconomically and could address

problems impeding the nationseconomic strength and welfare.This pragmatism imbued Madisonsoverall structure even as he

included intricate checks andbalances to prevent any onebranch of government from


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growing too dominant. The finalproduct also reflected compromisesbetween the large and small statesand between Northern andSouthern states over slavery, butMadisons Commerce Clausesurvived as one of theConstitutions most importantfeatures.

However, the Constitutionsdramatic transfer of power from thestates to the central governmentprovoked a furious reaction from

supporters of states rights. TheArticles phrasing about statesovereignty and independence


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had been removed entirely,replaced with language makingfederal law supreme.The Anti-Federalists recognizedwhat had happened. As dissidentsfrom the Pennsylvania delegationwrote: We dissent because thepowers vested in Congress by thisconstitution, must necessarily

annihilate and absorb thelegislative, executive, and judicialpowers of the several states, andproduce from their ruins one

consolidated government.Winning RatificationAs resistance to Madisons federal


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power-grab spread and as stateselected delegates to ratifyingconventions Madison feared thathis constitutional masterwork wouldgo down to defeat or be subjectedto a second convention that mightremove important federal powerslike the Commerce Clause.So, Madison along with

Alexander Hamilton and John Jay began a series of essays, calledthe Federalist Papers, designed tocounter the fierce attacks by the

Anti-Federalists against the broadassertion of federal power in theConstitution.


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Madisons strategy was essentiallyto insist that the drastic changescontained in the Constitution werenot all that drastic, an approach hetook both as a delegate to theVirginia ratifying convention and inthe Federalist Papers. But Madisonalso touted the advantages of theConstitution and especially the

Commerce Clause.For instance, in Federalist PaperNo. 14, Madison envisioned majorconstruction projects under the

powers granted by the CommerceClause.[T]he union will be daily facilitated


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by new improvements, Madisonwrote. Roads will everywhere beshortened, and kept in better order;accommodations for travelers willbe multiplied and meliorated; aninterior navigation on our easternside will be opened throughout, ornearly throughout the whole extentof the Thirteen States.

The communication between thewestern and Atlantic districts, andbetween different parts of each,will be rendered more and more

easy by those numerous canalswith which the beneficence ofnature has intersected our country,


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and which art finds it so littledifficult to connect and complete.While ignoring Federalist PaperNo. 14, todays right-wingers arefond of noting Madisons FederalistPaper No. 45, in which he tries toplay down how radical atransformation, from state tofederal power, he had engineered

in the Constitution.Rather than view this essay incontext Madison finessing theopposition the modern Right

seizes on Madisons rhetoricalefforts to deflect the Anti-Federalistattacks by claiming that some of the


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Constitutions federal powers werecontained in the Articles ofConfederation, albeit in far weakerform.In Federalist Paper No. 45, entitledThe Alleged Danger From thePowers of the Union to the StateGovernments Considered,Madison wrote: If the new

Constitution be examined withaccuracy, it will be found that thechange which it proposes consistsmuch less in the addition of NEW

POWERS to the Union, than in theinvigoration of its ORIGINALPOWERS.


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Todays Right also trumpetsMadisons summation, that thepowers delegated by the proposedConstitution to the federalgovernment are few and defined.Those which are to remain in theState governments are numerousand indefinite.But the Right generally ignores

another part of No. 45, in whichMadison writes: The regulation ofcommerce, it is true, is a newpower; but that seems to be an

addition which few oppose, andfrom which no apprehensions areentertained.


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In his ruling joining with hisfellow right-wing justices in rejectingthe application of the CommerceClause to the Affordable Care Act Chief Justice Roberts doesmention that line from FederalistPaper No. 45. However, he spinsMadisons meaning into asuggestion that the Commerce

Clause should never contribute toany controversy.Looking to the FutureHowever, what Madisons

comments about the CommerceClause actually demonstrated wasa core reality about the Framers


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that, by and large, they werepractical men seeking to build astrong and unified nation. Theyalso viewed the Constitution as aflexible document designed to meetAmericas ever-changing needs, notsimply the challenges of the late18th Century.As Hamilton wrote in Federalist

Paper No. 34, we must bear inmind that we are not to confine ourview to the present period, but tolook forward to remote futurity.

Constitutions of civil governmentare not to be framed upon acalculation of existing exigencies,


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but upon a combination of thesewith the probable exigencies ofages, according to the natural andtried course of human affairs.Nothing, therefore, can be morefallacious than to infer the extent ofany power, proper to be lodged inthe national government, from anestimate of its immediate

necessities. There ought to be aCAPACITY to provide for futurecontingencies as they may happen;and as these are illimitable in their

nature, it is impossible safely tolimit that capacity.Indeed, the Commerce Clause was


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a principal power that Madisoncrafted to deal with commercialchallenges both current to his timeand future ones that could not beanticipated by his contemporaries.There also was a reason why theFramers made the power toregulate interstate commerceunlimited. They wanted to invest in

the elected representatives theUnited States the ability to solvefuture problems.In Madisons day, the nations

challenges included the need forcanals and roads that would movegoods to market and enable settlers


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to travel westward into lands thatEuropean powers also coveted.Always a principal concern washow European competition couldundermine the hard-wonindependence of the nation.Though the Framers could not haveenvisioned the commercialchallenges of the modern world,

American businesses remain underintense foreign competition today,in part, because of an inefficienthealth-care system that imposes on

U.S. businesses the cost of healthinsurance that drives up the priceof American goods.


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Under the current system, not onlydo many American businesses payfor their employees health care while most other developed nationspay medical bills through generaltaxation but U.S. companiesindirectly pick up the cost of theuninsured who get emergency careand dont pay.

So, a law that makes Americanbusinesses more competitive byaddressing this free-riderproblem and by assuring a

healthier work force would seemto be right down the middle of theFramers intent in drafting the


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Commerce Clause.No PracticalityIn contrasting Justice Ginsburgsopinion on the Affordable Care Actwith Scalias dissent, one of themost striking differences is how theFramers are understood: Ginsburgsees them as pragmatic problem-solvers, while Scalia envisions them

as rigid ideologues placingindividual freedom abovepractical goals.The core of the Scalia-written

dissent is that the Constitution isNOT about solving problems, butrather following the most crimped


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interpretation of the words. Indeed,he ridicules Ginsburg for viewingthe founding document as implicitlyintended to give the electedbranches of government theflexibility to address nationalchallenges.

Yet, there was little question fromeither side that virtually every

American participates in thecommerce of health care frombirth to death and that the health-insurance mandate in the

Affordable Care Act was intendedby Congress to regulate what isclearly a national market.


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In the dissent, the four right-wingjustices acknowledged thatCongress has set out to remedythe problem that the best healthcare is beyond the reach of manyAmericans who cannot afford it. Itcan assuredly do that, byexercis?ing the powers accorded toit under the Constitution.

The question in this case,however, is whether the complexstructures and provisions of the Affordable Care Act go beyond

those powers. We conclude thatthey do.Scalia noted that Ginsburg treats


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the Constitution as though it is anenumeration of those problems thatthe Federal Government canad?dress among which, it finds, isthe Nations course in theeconomic and social welfarerealm, and more specificallythe problem of the uninsured.The Constitution is not that. It

enumerates not federally solubleproblems, but federally availablepowers. The Federal Governmentcan address whatever problems it

wants but can bring to their solutiononly those powers that theConstitution confers, among which


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definitions of the word regulatecouldnt be applied because theywere not the first definitions in thedictionaries of the late 18thCentury.In an earlier opinion upholding theAffordable Care Act, conservativeU.S. Appeals Court Judge LaurenceSilberman noted that At the time

the Constitution was fashioned, toregulate meant, as it does now,[t]o adjust by rule or method, aswell as [t]o direct. To direct, in

turn, included [t]o prescribecertain measure[s]; to mark out acertain course, and [t]o order; to


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command.In other words, to regulate canmean to require action, andnothing in the definition appears tolimit that power only to thosealready active in relation to aninterstate market. Nor was the termcommerce limited to only existingcommerce. There is therefore no

textual support for appellantsargument that mandating thepurchase of health insurance isunconstitutional.

However, in Robertss ruling, theChief Justice threw out certaindefinitions for regulate such as


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[t]o order; to command saying they were not among thetop definitions in the dictionaries ofthe time. Roberts wrote, Itis unlikely that the Framers hadsuch an obscure meaning in mindwhen they used the wordregulate.Needing Health Care

Scalia and Roberts also adopted avery narrow concept ofparticipation in the health-careindustry. Though its undeniable

that virtually all Americans frombirth to death receive medicalcare of various types and at


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different times, the Courts fiveright-wing justices treated the gapsbetween those events as meaningpeople are no longer in the healthmarket.Roberts wrote: An individual whobought a car two years ago andmay buy another in the future is notactive in the car market in any

pertinent sense. The phrase activein the market cannot obscure thefact that most of those regulated bythe individual mandate are not

currently engaged in anycommercial activity involving healthcare, and that fact is fatal to the


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Governments effort to regulatethe uninsured as a class.But, as Ginsburg noted in heropinion, this comparison is off-point, because a person can planfor the purchase of a car but oftenis thrust into the medical industryby an accident or an unexpectedillness.

Over and over again, the five right-wing justices behaved as if theystarted out with a determination toreject a constitutional justification

under the Commerce Clause andthen dreamt up legal wording tosurround their preconceived


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conclusion.In doing so, they treated theConstitution as some finicky legaldocument rather than what theFramers had intended, a vibrantstructure for solving nationalproblems.And, as for the Framers viewsregarding mandating American

citizens to buy a private product,one can get a good idea of theirattitude by examining the actions ofthe Second Congress in passing the

Militia Acts, which mandated thatevery white male of military agebuy a musket and related supplies.


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That Congress included actualFounders, such as James Madison.The law was signed by GeorgeWashington, another Founder.[See Consortiumnews.coms TheFounders Musket Mandate.]So, despite what todays Rightwants you to believe, the Framerswere not hostile to a strong central

government; they were not bigadvocates of states rights; theywere not impractical ideologuescontemplating their navels or

insisting on some hair-splittinginterpretation of their constitutionalphrasing.


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Rather, they were pragmaticindividuals trying to build a nation.They wrote the Constitutionspecifically so the country couldaddress its pressing problems and match up competitively withAmericas foreign rivals.Since Justices Scalia, Kennedy,Thomas and Alito dont have the

real history on their side, theyapparently saw little option but tomake up their own.To read more of Robert Parrys

writings, you can now order his lasttwo books, Secrecy & Privilege andNeck Deep, at the discount price of


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only $16 for both. For details onthe special offer, click here.]Robert Parry broke many of theIran-Contra stories in the 1980s forthe Associated Press andNewsweek. His latest book, NeckDeep: The Disastrous Presidency ofGeorge W. Bush, was written withtwo of his sons, Sam and Nat, and

can be ordered atneckdeepbook.com. His twoprevious books, Secrecy &Privilege: The Rise of the Bush

Dynasty from Watergate to Iraqand Lost History: Contras, Cocaine,the Press & Project Truth are also


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available there.

How Scalia, Et.al. Distort the Framers

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