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Don’t Ask, Just Tell
October 22, 2010 | 255 comments
Constitutional Opinions
Justice Scalia’s Timely Advice
If heeded by the new Congress, it would represent a healthy change in the priorities of our national legislature.
U.S. Supreme Court Justice Antonin Scalia offered the members of Congress who attended his “constitutional seminar” some timely advice: read The Federalist Papers. This advice, if heeded by members of the 112th Congress, would represent a welcome change in the priorities of our national legislature. From the defeated Phil Hare, who admitted he “didn’t worry about the Constitution” to then-Speaker Nancy Pelosi, who reacted in disbelief when asked whether the Constitution constrained her ambitions, the 111th Congress was conspicuous for the number of members that exhibited a blissful disregard for the Constitution they swore to support and defend.
Of all of the handiwork of the 111th Congress, no single act displayed its members’ indifference to Madisonian constitutionalism more than ObamaCare. Because of the nation’s fiscal crisis, the budget-busting quality of ObamaCare is, understandably, the focus of many critiques of the law. But if members of Congress heed Justice Scalia’s advice and consult the writings of Publius, they will find that, irrespective of its costs, ObamaCare is an affront to the ethic of constitutionalism that Founding Fathers like James Madison embraced.
The provision mandating the purchase of private insurance, which has received the most attention because it is the focus of strong challenges in the courts, threatens to wipe away any discernible limitations on the scope of the federal government’s authority to regulate commerce. As Madison famously explained in The Federalist No. 45, the “powers delegated by the proposed Constitution to the federal government are few and defined.” As a congressman, Madison warned against constructions of the Constitution that rendered the government “no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” If inactivity can be characterized as commercial activity, then virtually anything is ripe for federal supervision, converting the Constitution into an “unlimited government,” which is precisely what the Founding Fathers tried to prevent.
While the individual mandate affirmatively violates the Constitution, other aspects of ObamaCare conflict with the philosophy underlying it. The sheer enormity of the law undermines self-government. In The Federalist No. 62, Madison remarked that “It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” ObamaCare checks in at a cool 2,700 pages of dense, legislative jargon; can a citizen really be expected to understand the inner workings of this colossal law?
Though 2,700 pages long, ObamaCare intentionally left a large number of critical questions unanswered, delegating vast authority to executive branch agencies. This enables the bureaucracy to issue dense, lengthy rules that spell out the thorny details of “transformational change.” According to Madison, such easily mutable rules give an “unreasonable advantage…to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people.” The advent of ObamaCare “waivers” has vindicated Madison’s warning, for such “waivers” have been issued to politically-connected entities like the Service Employees International Union, which spent $27 million in support of Obama’s presidential campaign and is adept at influencing pliable public officials. Incredibly, the same powerful groups who flexed their political muscle in favor of “transformational change” are now able to exempt themselves from its enactment. This is precisely the type of politics that American voters rejected in the 2010 midterms.
Such rank favoritism notwithstanding, allowing executive branch agencies to impose far-reaching restrictions and mandates on the American people, such as dictating the minimum “essential benefits” that Americans are forced to maintain under penalty of law, further corrodes the political accountability that is a prerequisite for liberty. In The Federalist No. 63, Madison identified the need to structure the government in a way that “a ready and proper judgment can be formed by the constituents” respecting its actions. ObamaCare delegates legislative authority so dramatically that unaccountable executive branch officials possess boundless discretion to institute policies that affect the medical care and livelihood of millions of Americans. By subcontracting important legislative decisions to bureaucracies, elected officials insulate themselves from the political responsibility that is the hallmark of a government of, by and for the people.
Though challenges to ObamaCare in the courts show promise and should be pursued, the constitutionalist critique of the law should not be confined to the judicial sphere. Judicial decisions are final but they are not infallible. James Madison understood that supine courts would not always enforce the Constitution, and explained in that, in such instances, “a remedy must be obtained from the people,” through ordinary politics. The 2010 elections demonstrated that the people are intent on exercising this remedy.
Opponents of ObamaCare should continue to press the political case for repeal in a way that goes beyond mere dollars and cents. Repeal is also about preserving an ethic of constitutionalism rooted in limitations on government, political accountability, and equal justice under the law.
Let’s hope that members of Congress listen to Justice Scalia. By governing in a way that is faithful to the philosophy of limited government articulated in The Federalist Papers, the 112th Congress has a unique opportunity to earn the reputation as the “Constitutional Congress” and, in the process, save our nation from the ambitions of its rulers.
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JimH| 2.9.11 @ 7:26AM
Those on the left and elsewhere who claim to be unable to understand the meaning and intent of the Constitution are fools or liars. There was plenty written by the creators of the Constitution and their contemporaries about what it was and what it did and did not mean. The Federalist Papers being chief among them. At the time many opposed the Constitution fearing what has come to pass, the centralization of government and the increase in it's power. It was hoped that the Bill of Rights would be clear enough to remove any ambiguity as to what the government was permitted to do. Alas, this has not proven to be the case.
Scott| 2.9.11 @ 10:16AM
My favorite misunderstanding of the constitution is the part where they cite the slaves as "3/5ths" of a person is supposed to be the proof of racism.
The NORTH (non-slave owners) wanted slaves to be worth ZERO people.
The SOUTH (slave owners) wanted slaves to be worth ONE person.
This would have made a VOTER in the south worth more than a VOTER in the NORTH (because NEITHER wanted slaves to vote.)
So counting illegals IS racist, NOT the other way round.
To argue otherwise is to deny logic, but I expect that from a majority of Americans (if you want to know why, just look at the level of education it takes to graduate from high school.)
DL| 2.10.11 @ 2:17PM
Slave holders wanted slaves counted in their entirety so slave holding states would have more members in the House of Representatives and Electoral College and, hence, more power. I think that's what you are saying, but not quite sure.
Ralph Novy| 2.10.11 @ 7:56PM
Duh.
LOL
jj| 2.17.11 @ 11:45AM
Duh, except that's not what his post says.
Ralph Novy| 2.10.11 @ 8:00PM
You're not fooling me, asshole.
You're a fucking racist. Period.
For ANYONE, nowadays, to even try to interpret the "three-fifths" thing as other than a power-grab by southern politicians, is morally disgusting and intellectually insulting.
FUCK YOU!
Alan Brooks| 2.9.11 @ 10:28AM
I don't know about healthcare, one would have to be a CPA to reckon with it. Do what you think you have to do; the bottom line is you must keep certain programs going, such as Affirmative Action for blacks (but no others)-- they have suffered the worst, not necessarily through slavery, but certainly Jim Crow, which only ended in the '70s or '80s.
You can't keep all the privileges for yourselves, you have to lose sometimes. Remember how I guaranteed you would lose on DADT? you will lose on many other issues as well, ABSOLUTELY GUARANTEED.
Occam's Tool| 2.9.11 @ 10:35AM
Yeah, but not on this one, Alan. National Health Services are an atrocity. Really. Truly. Terrible. You want anecdotes and facts, I've got 'em. I'm actually an authority on this one.
Baldy| 2.9.11 @ 1:36PM
Keep affirmative action going for black?
The plantation policy?
Why? So Jackson, Sharpton and the rest of the race baiters can keep making out like bandits while the unwashed they claim to represent can stay wallowing in dispair and anger?
Anyone of any color can be a success.
You just have to possess a anti-victim attitude and put forth some effort.
There are millions of examples out there of those who fought through adversity and claimed success.
Without the help of opportunist's like Sharpton or Jackson.
Are you of the mindset that these individuals are to stupid to make it themselves?
Charles Martel| 2.9.11 @ 5:18PM
Alan is right! We are all equal before the Law -- though some are more equal than others.
Please.
+++
Oldefarte| 2.11.11 @ 2:49PM
Just as affirmative action is destroying domestic business competitiveness and competentcy, so too will the elimination of DADT destroy our military [but THOSE ARE ITS PURPOSES, RIGHT?]!!
Louis Jenkins| 2.9.11 @ 7:46AM
Madison, Jefferson, et. al, have proven themselves. Time and again. If Pelosi, Reid, and Obama think themselves above those men's power then they are deceived. An act that is very hard to follow. Scalia is wise to point to the Federalist Papers. Pelosi, Reid, Obama- time to return to the beginning, if you are able.
R Martin| 2.9.11 @ 8:30AM
Among the remedies available to the people is a Constitutional amendment repealing the commerce clause. There is no risk today that states will erect tariff barriers, so one wonders what useful purpose the clause serves. It has become a crutch to support big government philosophy.
Scott| 2.9.11 @ 10:17AM
Actually, the best repeal would be to remove the words "provide for the general welfare."
skip| 2.9.11 @ 4:09PM
Good grief.
The constitution's purpose is explained in a nutshell in the preamble.
The Constitution has just six primary functions.
1) form a more perfect union
2) establish justice
3) insure domestic tranquility
4) provide for the common defense
5) promote the general welfare
6) secure the blessings of liberty to ourselves and our posterity
You would just like that take away one of the six primary functions?
I doubt you know what 'general welfare' means.
Please tell me you are being satirical.
Butch | 2.9.11 @ 5:39PM
Words had specific meanings in those days. Not for nothing did they write "provide" for the common defense, but "promote" the general welfare. One function is prescriptive, the other is supportive.
skip| 2.9.11 @ 7:58PM
Good post. The founding fathers chose their words very carefully.
Ralph Novy| 2.10.11 @ 7:42PM
Yes.
Ralph Novy| 2.10.11 @ 7:45PM
Amen.
Hear, hear.
Etc.
Well put.
Sue| 2.9.11 @ 2:33PM
Oooh. I like this. It shows considerable critical thinking skills which are lacking so much in this Country!
Greger| 2.9.11 @ 2:37PM
Actually the Commerse Clause could have been used recently, but was ignored by the Obama Administration. When Arizona passed their immigration law last year, there were a number of states and cities that announced they would refuse to do business with Arizona. This is was a violation of the Commerse Clause, but nothing was ever done about it.
Ralph Novy| 2.10.11 @ 7:48PM
It wasn't any kind of "violation" of the Commerce Clause, Greger. Do some reading and thinking, eh?
Jeez.
Richard Baker| 2.9.11 @ 8:53AM
The Founding Fathers had it correct then and now. Approximately 100 years of so-called progressivism have led us down the path that has failed and destroyed many other societies. Wish there were a way to prosecute and hound from public life the Reids, McCains, and Pelosis of the Congress for lying under oath regarding their duties to the Constitution.
Scott| 2.9.11 @ 10:18AM
The Founding Fathers would probably be amazed that we have lasted this long.
Dan| 2.9.11 @ 12:15PM
"A Republic, if you can keep it." -Franklin
Ralph Novy| 2.10.11 @ 7:53PM
What an utterly nasty, stupid and counter-factual assertion.
What fucking planet are you from? "Nazi"?
Shit. How old are you? You know, methinks you're either TOO old and not old enough. In other words, you're either relying on old, stupid, prejudicial "knowledge," or you're relying upon pure-dee lack of knowledge.
Either way.............Please rethink things before you repost -- or assault your neighbor(s) for imaginary transgressions.
PattyMor| 2.9.11 @ 9:38AM
We are but one Supreme away from total subjuction. It has been a 70 year march to centralized command and control. Its the exact opposite of what the constitution actually says.
Dan| 2.9.11 @ 9:43AM
Gentleman,
Slightly off topic, but I'd be curious to know your thoughts on the Tea Party's stance last night in the House against the Patriot Act. Do you feel this no-vote is in-line with Madison, et al?
Scott| 2.9.11 @ 10:13AM
I believe that the Patriot Act in many ways violates our Constitutionally protected rights, though no one seems to bring that up to the courts so they could decide on the matter.
There are valid reasons for many sections of the Patriot Act, which are NOT violations of our rights, however the entire Act goes too far.
The TEA party is NOT the GOP and vice versa.
Jeffrey| 2.9.11 @ 1:46PM
Not a lawyer, but I can sound like one with the help of the wikipedia.
Many lawsuits against Federal laws never get anywhere because the plaintiff is unable to prove "locus standi" or standing. They can't show sufficient evidence that they have been personally harmed by the law to bring suit.
Though, I'd like to think being forced pay taxes for programs I don't want or believe should exist would be enough to prove standing. Apparently it is not.
Ralph Novy| 2.10.11 @ 7:40PM
Yes, Jeffrey, I agree.
I think that just being a taxpayer from whose taxes are allocated funds for various purposes gives you "standing" to challenge that taxation.
But........holy shit.......that opens up a can of worms, doesn't it?
That's why courts won't touch it.
And I rather understand. Think of how many people object to various things that local/stae/federal governmenal bodies do with tax-driven funds.
Pandora's Box, methinks.
But......I'm still sympathetic to your general argument.
Ralph Novy| 2.10.11 @ 7:33PM
Dan:
Don't find myself very often in agreement with the "Tea Party" folks, but here I do.
Good for them.
I guess some of them recognize that "freedom" doesn't just mean that greedy fucks can make as many bucks any way they can.
I'm all for a new "coalition" of left- and right-wing people in defense of Constitutionally guaranteed rights.
Methinks the corporate-media-generated chasm betwixt the two is grossly exaggerated, if not created from whole cloth.
Richard Baker| 2.9.11 @ 9:54AM
Dan:
It may be that their stance is an attempt to rid ourselves of government intrusion into our already overburdened lives. There is so much to be restored to the Founder's vision. Then again, there may have been some "additions" that the Kenyan wanted which would have rendered the Patriot Act, well, Intolerable. We'll find out soon enough, I'm supposing.
Ralph Novy| 2.10.11 @ 7:26PM
You racist swine!
"The Kenyan."
Shame.
Yeah..... regarding the "founders' " vision -- middle-aged, light-skinned wealthy slave-owners,,,,, they were hypocritical, with SOME excuse. YOU are hypocritical with NO excuse.
Shame on you.
Rethink. Eh?
urlnts| 2.9.11 @ 9:59AM
More nonsense from the Dinosaur Contingent,the r/w criminals that Bankrupted and robbed the Country!Corporate Pimps to the end!
Mimi| 2.9.11 @ 10:13AM
Good for Antonin Scalia, and Michele Bachman for helping our congressmen re-educate their minds of the Founders documents. No one can read the Federalist Papers and not understand that OBAMACARE is un-constitutional.....Future of coming attractions FOLKS ??
Al Adab| 2.9.11 @ 10:34AM
The point here seems to be that all too many of our elected officials (top to bottom) are ignorant of the requirements of Constitutional government. They seem to inclined to follow popularity and/or special interest demands at the expense of their oath to defend the Constitution.
Applying the wrong citeria to decision making ie is it the right thing to do, causes many representatives to be foresworn on their duty. Defending limited government may not bringaclaim, but it certainly supports the Liberty of the people. It is a matter of priorities. Liberty or entitlement?
Impeach Don't Wait| 2.9.11 @ 3:20PM
You're right. There is no incentive to follow the dictates of the constitution, whether as an individual or as a "party". Just think: Simply trying to stop people from violating the constitution can get you labeled the party of "no". Need to get anti-constitutionalists out of government. The remedy is the voters.
Auntie_T_Tax | 2.9.11 @ 10:37AM
The biggest problem we have as a country is not politicians in Washington but the judges who refuse to follow the rules of contract construction and thus misinterpret the Constitution. It is the judges who have given Congress such extraordinary powers. The Constitution is our social contract and as a contract must be interpreted using the precedence establish under both English and American common law. The rules for construction are easy to understand but followed by few judges. In interpreting any contract, the language of the document itself should be looked to first to understand the intention of the parties. If from the text itself an ambiguity is found, the next step is to try to determine the meaning of the ambiguous word or phrase from the word's or phrase's context in relation to the rest of the contract. If the meaning of the ambiguous term still cannot be determined, the intent of the drafters of the contract should be explored. Only after all these steps are taken should a judge use the equitable power of reformation to define the ambiguous term in a manner which the judge thinks is fair and just. Unfortunately, many judges in this country skip right to the last step because of a political ideology. Until we get judges who are willing to uphold their constitutional duties and properly interpret our governing contract by following the rules of contract construction, we always be just a few short steps away for absolute depotism.
VBMax| 2.9.11 @ 12:53PM
The judges we have are a reflection of those who appoint them. Nothing will change until we replace them.
Auntie_T_Tax | 2.9.11 @ 5:11PM
While the politicians may appoint and confirm the judges, once they are appointed it seems they have free reign to interpret the Constitution any way they want and precedent be damned. Maybe one can blame the politicians for not impeaching some of these activist judges, which I would argue they have a duty to do, but without stupid rulings like Wickard v. Filburn, the politicians never get half the power they enjoy. Let's remember it was the Supreme Court's lack of backbone in the infamous FDR court packing fiasco that lead to the dramatic expansion of federal power. So I blame the judges.
Vic| 2.9.11 @ 10:04PM
Government of the lawyers, by the lawyers, for the lawyers.
martin j smith| 2.9.11 @ 10:57AM
I think the"educational system" in our country from pre-k to phd levels and the propaganda fed daily by the media to our pablem brained citizenry are the biggest problem for me.
What kids are learning is about their"rights " and how this country stinks--And I do know from first hand experience that this is the general theme that is taught. Thinking critically, reading,writing,
mathematics--only the elite few get that plus the propaganda. But is the "average or typical "student that is getting the very short end of the stick. It is not about money. ,It is about attitude.
The History of the United States, including the Constitution is not taught --but if it is it is so distorted as to make no difference. The folks in Washington on the bench as judges etc. they reflect this very bad cultural environment.
So it is education ( money is not the issue ) and the emdia that has to be examined very closely.
The good news is this: The election of 2010 appears to show that many are waking up from the stuper and "getting it"--that is how our nation is being run into the ground.
The bad news is that more people need to wake up and hope it is not too late.
Justice Scalia needs to reach a lot of people and more work --a lot has to be done.
Dave| 2.9.11 @ 11:10AM
Why stop at "The Federalist". Why not base our Laws on the "Old Testament". Then we can pretend we live in the "real good old days".
Al Adab| 2.9.11 @ 11:35AM
Dave, dave:
The Holy Quran, Dave.
JimH| 2.10.11 @ 7:00AM
I say bring back Hammurabi. Who BTW, must have been the first programmer as everyone talks about his code.
Baldy| 2.9.11 @ 1:39PM
Recess already Dave?
Jeffrey| 2.9.11 @ 1:51PM
Maybe because the Federalist was written to explain the Constitution. Maybe I'm way off, but that was my train of thought.
When you see hoof prints, do you immediately think of Unicorns Dave?
skip| 2.9.11 @ 7:56PM
Hey Genius,
The Old Testament is exactly what our laws are based on.
The founding fathers also based our laws on the New Testament and justified these laws in The Federalist Papers.
Nice post.
Your intelligence and honesty really shines through.
Vic| 2.9.11 @ 10:11PM
I think ol Dave wishes to include the communist manifesto as a constitutional interpretation tool. Its all the rage these days, despite 100 years of proven failure. Misery loves company I suppose.
Ted Peters| 2.9.11 @ 11:24AM
Anyone who's studied the history of jurisprudence is well aware of the unintended consequences of a ruling that was sought by one group that was later turned against them. If Obamacare is upheld, the Dems may rue the day if a Republican President and Congress begin to use the resulting unlimited powers to further their ends.
Jeffrey| 2.9.11 @ 1:54PM
Ted,
I'm not sold on the concept that we have many Republicans who see that as their mission. But I have hope that we'll be seeing more over the next few election cycles.
Susies Q'd| 2.9.11 @ 11:30AM
urlnts...Perhaps I am misunderstanding your post. You surely cannot be calling the Republicans corporate pimps after what Obama has done with bailing out Wall Street and the banks, and yes the bailouts started with a Republican president and a Democratically controlled congress, but he continued them and then threw in the unions as a bonus for the taxpayers to prop up. By the way, most Republicans were outraged by the bailouts and it was a bi-partisan decision, so while living in your glass house it would be wise not to throw stones.
Al Adab| 2.9.11 @ 1:25PM
Susies:
urlnts is simply what Eric Hoffer called a True Believer, in politics never confuse the faith based with the facts. If reality doesn't fit their preferred vision, they change reality.
CTBob| 2.9.11 @ 11:58AM
The Founding Fathers were light years ahead of the light weight team of Obama, Reid, and Pelosi. The Federalist Papers need to be read by every member of the Government; Legislative, Executive and Judicial. Thank you Justice Scalia.
Ron| 2.9.11 @ 1:14PM
ObamaCare is not about law or logic. It's pure politics. If you think the Supreme Court works on on those levels you're fooling yourself. The Court will decide this issue on pure political concerns. After all, that's how the Supremes were choosen in the first place.
Al Adab| 2.9.11 @ 1:31PM
Which, Ron, is why the 27 states suing and the 10 with nullification (which Madison and Jefforson supported-see the alien and sedition acts et al) pending are on the right side of the Constitutional question. Whatever the courts may decide, the states must avow clearly, "We will not comply". That position is butressed by the several hundred exemptions the feds have granted to their favored special interests. Remember the Cornhusker and Louisiana deals?
YeloStalyn| 2.9.11 @ 3:01PM
I can't recall where he said it, but Jefferson once said in reference to run-amok judges (who he was certain was going to become a fact of American government seeing as how they failed to do anything to truely keep the SCOTUS in check in the Constitution) that when they rule against the rights of the people and the Constitution... the people simply need to ignore them.
Interestingly, what is happening now with Obama continuing forward with carrying out ObamaCare in defiance of the judicial branch is akin to Jackson telling the SCOTUS to come stop him. An act that paved the way for the POTUS to become Emperor.
Vic| 2.9.11 @ 10:17PM
So, it's either monarchy or oligarchy? Is that what you are saying?
BNapp| 2.9.11 @ 2:59PM
Bush got us into this mess. Bush..Why do you fail to see that America. Stop blaming the President because he is black. If he was John MCcain you wouldn't say squat!
YeloStalyn| 2.9.11 @ 3:03PM
Kind of like we didn't say squat when he was the GOP nominee.. squat like "Why this guy?" "He's a liberal!" "Sellout!" "RINO!"
So... I would imagine that pleanty would be said about McLame... I just think it would be more about him being stupid rather than purposefully maliciuos and anti-American.
tonypal| 2.9.11 @ 9:23PM
BNapp, please do us all a favor and tell us exactly when the statute of limitations on blaming Bush runs out. My guess it's at the exact moment that the economy get's going, right?
Vic| 2.9.11 @ 10:27PM
100 years of socialist experimentation got us into this mess BNapp. Bush created neither Freddy, Fanny, the community reinvestment act, socialist security, medicare, food stamps, corporate welfare, or the idea of empire. We were already there in 2000. And just as socialism has impoverished every nation who has embraced it, it will do us in also. Wait and see.
skip| 2.10.11 @ 2:57PM
BNapp,
I blame Obama because he is unintelligent, one example of which is shown by his complete ignorance of and hostility to capitalism and free markets.
I blame Obama because he is dishonest, one example of which is shown by his total lack of protection of and hostility to our constitution.
I blame Obama for his utter disregard of and hostility to Christianity, examples of which are his support for social policies that are hostile to and that destroy families including support for homosexuality and the killing of unborn babies, and for his encouragement of coveting neighbors.
I would blame Obama for these reasons if his skin color was white or red or orange or yellow or green or blue or purple or any combination of any colors imaginable.
Paul| 2.9.11 @ 3:11PM
BNapp, I believe that we got into this mess on 14 July 1789; to be fair, it wasn't really possible to tell at the time.
I'm not sure what the "mess" is, though, or how either President Bush or President Obama would bear the blame for it.
With regards to the health-care law, which occasioned most of the discussion above, I do not believe that the current President's ethnicity generated most of the opposition to it. Certainly, that has never been demonstrated -- only asserted.
It is true that Senator McCain's policies as President would have been far less different from President Obama's than many people realize, but only a tiny fringe of the population would have changed its opinion of those policies because a supposed President McCain would have been paler. In the contemporary United States, only truly marginal losers embrace such open racialism.
Al Adab| 2.9.11 @ 3:40PM
When the people are not jealous of their Liberty, when they sell their birthright for a bowl of pottage, Limited government and Freedom are endangered.
Biggles| 2.9.11 @ 3:21PM
I think every American should read the Federalist Papers. Perhaps, as it concerns originalism, Scalia ought to read some thoughts on the matter from James Madison, often referred to as Father of the Constitution, and the main force behind the Federalist Papers. In referring to them:
"As a guide in expounding and applying the provisions of the Constitution, the debates (the FPs) and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Insitutions, & as a source parhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses."
To interpret the Constitution one must first look to the text, and then when needed, to the actual sovereign power- the people (that's us folks). We express ourselves through elections. When the new health legislation makes it to the Supreme Court they will decide if it is constitutional or not- that will decide the matter until and unless the decision is reversed or a new amendment is passed.
fwb| 2.9.11 @ 5:56PM
Justice Scalia is mistaken as are most people. Read the ANTI-Federalist papers THEN read the Federalist Papers. The Federalist papers are the sales ads for the Constitution. Just like those used car ads of today, the folks writing them were interested in getting this new government in place. Couple that with the fact that the first Congress are 2/3 Federalist and one can understand when we started down the path to big government and how we went that way.
The ANTI-Federalists 1) wrote first and 2) told us what would go wrong. The Federalists then responded and said it would be OK. They put us in cold water and slowly raised the temp to cook us.
I suspect those who wrote the Federalist papers of misdirection in order to get folks in line.
Al Adab| 2.9.11 @ 7:07PM
You are correct in one regard. The Anti-F warnings have come true, it just took longer than they thought. It now falls to us and our generation to heed the warning and restore the balance between Liberty and government which both sides sought. We might also do well to read the records of the state ratifyimg conventions. That certainly gives a clear view of what they thought the document said.
Vic| 2.9.11 @ 10:43PM
The wisest post I have seen on this tread so far. Read what Patrick Henry had to say about this constitution in the halls of the constitutional congress, and he appears to be a prophet. He accused the federalist of wanting power for themselves, not liberty for the masses. I think his best case was the absence of juries in this new government's court system. A system that became an oligarchy of lawyers.
skip| 2.10.11 @ 12:46PM
While you have a pretty good point you are somewhat overstating the anti-federalists and understating the federalists. The federalists are as prophetic as the anti-federalists. The anti-federalists were considered radical even by colonial revolutionary standards. Both sides knew power corrupts and attempted to deal with this not just in ideal theory, but in actual reality.
As far as the system the founders created, nothing concerns me more than 'a jury of my peers'. My peers are the citizens who voted Obama into office, not having learned anything from Clinton, Carter, and the devastating flaws of liberalism. My peers definitely scare me.
star | 2.9.11 @ 6:13PM
Madison, Jefferson, et. al, have proven themselves. Time and again. If Pelosi, Reid, and Obama think themselves above those men's power then they are deceived. An act that is very hard to follow. Scalia is wise to point to the Federalist Papers. Pelosi, Reid, Obama- time to return to the beginning, if you are able.
fwb| 2.9.11 @ 6:16PM
Learn this:
"For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to."
Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6
We the People override EVERY court including and especially the supreme court. They have no authority to interpret anything. They are subordinate to the Constitution not superior. As a subordinate go tell your boss what his/her job is and let me know the outcome.
Intelligent Design| 2.9.11 @ 6:44PM
Do public school students read the Declaration of Independence and the Constitution in school, or do the union controlled teachers tell the kids they are right-wing propaganda? It's very clear to me that many Congresspersons have not read them, or if they have, they don't understand. (We got rid of some of the dummies last November.) Two good books: "American Original - Supreme Court Justice Scalia", by Joan Biskupic, and "Ratification" by Pauline Maier.
PCP Smoker| 2.9.11 @ 8:50PM
We know Rep Lee from NY was not listening. He was laying the baits in Craigslist.
Vic| 2.9.11 @ 10:48PM
Put down the pipe and engage your brain dude. Rep Lee was not even mentioned in this article.
Speedypete| 2.9.11 @ 11:06PM
Does Justice Scalia's advice also extend to the Supreme Court justices? The Heller decenting opinion about why Adams supported the 2nd amendment was a rebuttal better suite to some California mythbuster website but it had little support from the writings in the Federalist Papers.
NeilBJ| 2.10.11 @ 2:11PM
I was more than disappointed in Jusctice Scalia's answer to the question, "Do states have a right to secede?" His answer was:
"If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."
So, regardless of the principles involved, might makes right. Or to put it more crassly, I can win an argument by punching you in the gut.
The act of secession is the last best hope (short of armed rebellion) for breaking loose from an overbearing and tyrnannical government.
Does not Justice Scalia remember how our nation was founded?
Ralph Novy| 2.10.11 @ 8:14PM
Really?
You were SURPRISED by that?
Hey......Scalia, Thomas, et al. are for the powers that be.
Jeez. No surprise.
.....dexpite thousands of words of pseudo-jusification.
Ralph Novy| 2.10.11 @ 8:28PM
oops
Apologize for the misspellings.
A bit worked-up and snockered.
Meant well -- and ill.
jgo| 2.10.11 @ 5:47PM
"5) promote the general welfare"
As used at the time the phrases "general welfare" and "general government" make it clear that they were trying to refer to the continued existence and prosperity of all of the states, rather than putting any one or more above the others. Many of them were quite worried about the "continued existence" part, expecting to be overcome by military forces of England or Spain or France at any time, or turned over to one or more of them by subversive forces within (hence some of the friction between Hamilton who favored England and a monarchy, and Jefferson and Madison who favored less of a hierarchy, more respect for individual rights regardless of station, and expected France to develop into a stalwart ally).
skip| 2.10.11 @ 6:01PM
Whether the 6 functions outlined in the preamble reference states or individuals the application is the same.
5) 'promote the general welfare' must be understood as:
Policies must benefit each state equally under the law.
Policies must cost each state equally under the law.
Policies must benefit each individual equally under the law.
Policies must cost each individual equally under the law.
Ralph Novy| 2.10.11 @ 7:22PM
Utter rubbish.
Where's that coming from, eh?
skip| 2.12.11 @ 2:01PM
There is some confusion on what is considered rubbish. Please elaborate.
Ralph Novy| 2.10.11 @ 8:21PM
"As used at the time the phrases "general welfare" and "general government" make it clear that they were trying to refer to the continued existence and prosperity of all of the states, rather than putting any one or more above the others."
Yes -- all the states, taken together, rather than considered individually.
It's called federalism.
Something the Federalist Society seems to have lost sight of -- for money.
Lots of shame to go around there. Talk about high-falutin intellectual dishonesty.
Best Supreme Court Justice of the past 100 years: William O. Douglas.
jgo| 2.10.11 @ 5:55PM
We should be reading both the Fderalist papers and the Anti-federalist papers, and the records of the various state ratifying conventions.
RiverKing| 2.10.11 @ 6:09PM
Justice Scalia has the right idea, but I'm afraid it would be a waste of their time for most members of Congress to read The Federalist Papers; they wouldn't understand what they read. Our Founding Fathers had vocabularies, far in excess of any of our meager efforts to describe. Then there's the problem of the change in the meaning of many words since the late 18th Century. Take 'regulate', for example, as in 'regulate commerce'. They didn't mean to control commerce, but to make it regular, without one state being able to favor another or to be favored over another.
Ralph Novy| 2.10.11 @ 7:20PM
:Of all of the handiwork of the 111th Congress, no single act displayed its members' indifference to Madisonian constitutionalism more than ObamaCare."
How utterly ludicrous.
Learn some law. Learn some philosophy. Learn SOMETHING.
My word, how ignorant.
You fancy yourself a worthy contributor to current political discourse, do you?
Gad.
Timely Renewed | 2.10.11 @ 7:44PM
The authors are correct that Obamacare is only the tip of the iceberg. We need more Constitution-consciousness about everything the federal government does. The underlying problem is the vast expansion of federal power based upon the Supreme Court's vast expansion of the interstate commerce clause far beyond its original meaning. The only sure way to stop not only Obamacare but the innumerable other ways in which the federal government has expanded beyond the original scope of the Constitution is to reverse those Supreme Court cases (which date back to 1937) and restore the interstate commerce clause to its original meaning. Given how entrenched these Supreme Court precedents are, this will require a constitutional amendment restating the original, very limited scope of the interstate commerce clause. See http://www.timelyrenewed.com
Ralph Novy| 2.10.11 @ 8:10PM
"This is precisely the type of politics that American voters rejected in the 2010 midterms."
BUZZZZZZZZZZZZZZZZZZZZZz!!!!!!!!!!!!!!!!!!!!
Wr0ng!
NOT what was rejected. It was the hypocrisy.
Duh.
Why the rise of the "Tea Party," eh?
Dumbass.
It's that "common folks," of whatever label -- "conservative" or "liberal," etc. -- are sick and tired of paying for liars to go to Washington and sell them out.
Duh.
Methinks a lot of Congress people announcing their "retirements" are just a bit afraid of a 1789 French situation here.
Let's see how a guillotine set up on the floor of the Senate might interfere with its "decorum."
Albert W. L. Moore, Jr.| 2.12.11 @ 1:06AM
Here is something else all citizens should read:
The Kentucky and Virginia Resolutions: Guideposts of Limited Government, by William J. Watkins, Jr.
http://www.constitution.org/lr.....atkins.htm
bee free| 2.13.11 @ 11:41PM
---Secondary sideshows and distraction.
Globalist/eugenics TREASON must be called
out and prosecuted.
CFR/RIIA. Rockefeller/Carnegie/Ford foundations and NGO's, the FED et al.
HUAC meets NUREMBERG ------NOW.
THE ONLY WAY
Reebok | 8.11.11 @ 4:01AM
is good
العاب | 4.11.12 @ 4:35PM
Your intelligence and honesty really shines through