The Constitution, Politics, And The Eternal Hamiltonian-Jeffersonian Battle
Constitutional ambiguity is as old as, well, it's as old as the Constitution itself
As James Joyner has already noted this morning, Ezra Klein’s comments about the Constitution on MSNBC yesterday, which he later followed with a blog post, raised a bit of a firestorm on the right. Partly, it was just a matter of poking a little fun at the sheer silliness of Klein’s initial comment that the Constitution was hard to understand because it’s old and, admittedly that was the spirit behind my post with the video clip yesterday morning. Beyond that, though, Klein’s comments, and the follow up to it on the right has revealed the extent to which the Constitution is still the political battleground it was been throughout American history. As I argue below, it also reveals that there is a fundamental flaw in the idea that the Constitution is a self-evidence document whose meaning is clear to all.
Klein’s overall point, which he obviously didn’t communicate at all effectively during his television appearance yesterday is as follows:
My friends on the right don’t like to hear this, but the Constitution is not a clear document. Written more than 200 years ago, when America had 13 states and very different problems, it rarely speaks directly to the questions we ask it. The Second Amendment, for instance, says nothing about keeping a gun in the home if you’ve not signed up with a “well-regulated militia,” but interpreting the Second Amendment broadly has been important to those who want to bear arms. And so they’ve done it.
Klein did make a mistake here, of course, in characterizing the Second Amendment the way he did given that it completely contradicts the rulings of the Supreme Court in District of Columbia v. Heller and McDonald v. Chicago. Nonetheless, his overall point that it isn’t always clear what the Constitution means is really what has set off the firestorm on the right:
The truth is that the bulk of the Constitution is abundantly simple to any moderately well-read citizen of the United States. The problem, of course, is not that the Constitution provides no reply to the “questions” of Klein and his fellow progressives; they just don’t particularly care for the answers they’ve found and prefer to manufacture new ones.
There is nothing that complex about the basics of the First, Second, Fifth and succeeding Amendments. For those who find it challenging to deduce the meaning of any section or article of the Constitution, numerous references exist for interpretation of portions that have become archaic over time. (The essays located in The Federalist Papers come to mind, as well as more modern commentary, such as Ed Meese’s Heritage Guide to the Constitution.) Even in areas where our Founders disagreed (and we freely concede that this did occur), a plethora of documentation exists that clarifies where the battle lines were drawn.
The sad fact is that the current occupants of the White House not only espouse, but cherish the same view of the Constitution as the baby-faced, but misguided Ezra Klein. One need only gaze momentarily at the economic, fiscal and national security track record of the last two years and the wreckage in its wake to appreciate the consequences of such profound and willful sophistry. A renewal of appreciation for the timeless principles evoked by our Founders, is absolutely essential if our country is to survive the two years that remain of unfettered progressive bully-pulpiteering at 1600 Pennsylvania Avenue.
Mellissa Clouthier makes a similar argument:
This isn’t an argument about interpreting the Constitution. This is an argument about the usefulness and validity of the Constitution. This is an argument about the limitations of the Constitution.
President Obama and many of the statists of the Left are not interested in the Constitution. They’re sick of the Constitution. They want a new document that gives every American a system of entitlements and in their starry eyed vision, they believe producers will stay around to pay taxes to ensure that the non-producers receive these proactive “rights” whether the lazy earn them or not.
What I think conservatives are missing here is the fact that this argument isn’t at all a new one, it’s one we’ve been having from the very beginning of the Republic, and it’s one of three reasons why Klein is, in retrospect, more right than wrong in his comments about the ambiguities inherent in the Constitution.
1. The Constitution is, in several important places, inherently ambiguous
As easy as it might be for a pundit on the left or the right to say that they “know” what the Constitution means, how its provisions should be interpreted, and how apparent conflicts between them should be resolved. For example, let’s take a look at this provision of Article I, Section 8, which sets forth one of the powers of Congress:
[Congress shall have the power] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
and this provision from Article II, Section II
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States,
Read strictly, these provisions would seem to suggest that the President has no authority to authorize non-defensive military action without a Congressional declaration of war and yet that is not how our leaders have acted over the past 200 years. President Jefferson took action against the Barbary States without Congressional authority, and, by the late 19th Century, American forces were being sent to intervene in the internal affairs of several Central and South American nations, also without a declaration of war. Now we live in a world where we’ve fought five major wars, as well as countless smaller conflicts, over the past 65 years, all of them without an explicit declaration of war by Congress.
Does this mean that the last twelve Presidents have acted in an unconstitutional manner? It depends what the phrase “Commander in Chief of the Army and Navy of the United States” means, and whether the President’s authority to enter into diplomatic agreements includes the power to bind our nation to take military action even when Congress has not declared war. Those aren’t easy questions.
Similarly, while I was rather flip in my response to Klein yesterday, it is true that the meaning of several of the provisions of Article I Section 8 are not self-evident on their face. If they were, we wouldn’t still be fighting over them. Which leads us to the second reason why the “self-evident” Constitution doesn’t exist — even the Founders didn’t agree what it meant.
2. Americans have been arguing over the meaning of the Constitution from the moment it went into effect
As I noted earlier this month in a post about the individual mandate, there has been a disagreement about the meaning of the Constitution since 1789:
It’s a debate that started more than 200 years ago around George Washington’s first cabinet table as Thomas Jefferson and Alexander Hamilton squared off in debates over the proper role of the new Federal Government. Though he was not involved int he 1787 Convention, Jefferson quickly became an advocate of what we would today call a strict constructionist, most importantly with respect to the limited power that had been granted to the Federal Government. Hamilton, on the other hand, believed in a strong and energetic central government. He believed that Congressional power was not necessarily limited to the powers expressly stated in Article I, Section 8 of the Constitution, which was an interesting change for him since he had argued along with Madison and Jay in The Federalist Papers that the Constitution created a government of strictly limited powers.
The history of the Hamiltonian-Jeffersonian debate, and the history of the early years of the Republic, tends to put the lie to the simplistic view that America prior to 1914 or 1932 was a paradise of laissez-faire government and strict adherence by the Federal Government to confines of the Constitution. In 1791, for example, President Washington proposed on Hamilton’s recommendation the creation of what ultimately became the First Bank Of The United States. Jefferson and his allies in the cabinet objected to the bill on the ground that there is no authority granted in the Constitution for Congress to charter a bank. Hamilton and his allies argued that the powers of Congress expanded beyond the mere specific grants of authority in the Constitution and included “attainment of the ends…which are not precluded by restrictions & exceptions specified in the constitution.” Washington sided with Hamilton, the Bank bill passed through Congress easily, and within the first two years of the new government’s existence the strict constructionist view of the Constitution had suffered a significant, some might say intellectually fatal, defeat.
Twenty years later, when the Constitutionality of the Bank Of The United States was finally before the Supreme Court, John Marshall put forward an interpretation of the Necessary and Proper Clause that dealt yet another blow to the strict constructionist idea:
We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
Similarly,in 1824, the Supreme Court defined Congressional power under the Commerce clause as:
The power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution………….0The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often they solely, in all representative governments.
So, within 35 years after the Republic came to be governed by the Constitution. we were already well on the way down the road toward a more expansive interpretation of Federal power under the Constitution. The battle continued on several fronts for decades, including a four year long actual war over the nature of the relationship between the Federal Government and the States, and it continues today. To a large extent, the Hamiltonians have won the battle, but that’s only because we wanted them to:
This didn’t happen because of some vast Wilsonian conspiracy as the Glenn Becks of the world might postulate. It happened, mostly, because the American people wanted it to happen. The New Deal, the Great Society, yes even ObamaCare all passed with substantial public support, or with a demand from the public that the government do something about a problem. Concerns about Constitutional limitations rarely enter the public mind and, when they do, they’re often informed by a view of the Constitution and history that has little to do with reality. More importantly, when the public wants something arguments that the government can’t do it are rarely persuasive.
So the idea that there is a single self-evident interpretation of the Constitution isn’t supported by the simple fact that even the people who wrote the document didn’t always agree what it meant, and they fact that they often ignored it to get things done (think Jefferson’s acquisition of the Louisiana Territory, an act for which there is no explicit grant of authority to the President under Article II).
3. Even the Supreme Court doesn’t always know what the Constitution means
Allahpundit sums this part of the argument up best:
I think Klein’s getting a bit of a bad rap. His formulation is idiotic — not all old texts are confusing, of course — but that’s probably just rhetorical clumsiness while live on the air. All he means, I take it, is that it’s often not clear how constitutional provisions should apply to modern circumstances not envisioned by the Founders. This is why there are 5-4 decisions all the time on the Supreme Court, and even splits within the Court’s conservative wing, on matters of huge constitutional import. (It pains me to remind you that Scalia concurred with the judgment of the majority in the Raich case.)
While it’s sometimes the case that the issues that present themselves for consideration under the Supreme Court, the truth of the matter is that it usually isn’t the case. Individual cases turn on subtle nuances, and it’s the role of judges to apply those facts to the general principles that the Constitution sets forth. That isn’t always an easy task, and there are often disagreements even among judges who agree with each other on broad points of ideology. The Raich case is a perfect example of that, as is the conflict between Scalia and Thomas over which provision of the 14th Amendment should be used to incorporate the Bill of Rights against the states in the McDonald v. Chicago case.
The Constitution is, as James put it in his post this morning, an eternal struggle. It’s a battle that started in George Washington’s cabinet room and continues today on the Internet and in the halls of Congress and it does damage to that debate to treat the Constitution as if it were a sacrosanct document whose meaning was clear. It simply isn’t, and it’s our responsibility to take its general principles and apply them to the modern world, as Ben Franklin once put it:
At the close of the Constitutional Convention, a woman asked Benjamin Franklin what type of government the Constitution was bringing into existence. Franklin replied, “A republic, if you can keep it.”
That’s the choice we have, and the battle we continue to fight.