By Seth Lipsky from the March 2011 issue
When historians look back on the predicament of American liberalism, no doubt they will regard with amazement the fracas that broke out when it became clear that the House of Representatives would open the 112th Congress with a reading of the United States Constitution. The hoots of derision, the outrage, the keening were such that one might have supposed a plan had been hatched for a reading of… well, it's hard to think of what else could have ignited such a panic among liberals save the laws brought down from Sinai.
It is true that the plan to read the Constitution had been hatched in the wake of an election that was electrified by a Tea Party movement that had sought, above all, a revival of constitutional fundamentalism. Yet one might have expected the idea to be quickly embraced by the politicians and intelligentsia in the liberal camp. Liberals, after all, had won or secured many of their most famous victories -- from the minimum wage to school integration to racial preferences in college admissions to abortion rights -- by wielding the very text that the Congress would be reciting.
Yet instead of a joint celebration of our patriotic parchment, the plan to read its 8,000 or so words ignited in the liberal camp an outburst of sneering aimed not just at the conservatives but at the Constitution itself. "A ghastly waste of time" is how it was characterized by the New York Times in an editorial dripping with derision. A blogger for theWashington Post, Ezra Klein, seemed to suggest in a television appearance that the Constitution was confusing because it was written more than a century ago and "has no binding power." In print, he quickly backpedalled to acknowledge that, in fact, it is binding. At the online magazine Salon, the headline over Michael Lind's piece declared, "Let's stop pretending the Constitution is sacred."
"Freedom rests on a culture of constitutionalism, not a particular document," the headline went on to say. To illustrate the piece, Salon ran a photograph identified as having been snapped in 2009 in Pleasanton, California, at a Tax Day Tea Party. It showed a person holding aloft a sign that said:
I Believe in the
CONSTITUTION
I'M A
‘Right-Wing Extremist'
David Corn, under the title "The House GOP Weaponizes the Constitution," warned at PoliticsDaily.com that the Founding Fathers "wouldn't cotton to lawmakers exploiting their well-crafted document and turning it into hollow political ammo." Once the reading actually took place, it was set down in the Daily Kos as the "most boring circus ever."
So what's to account for this eruption of hostility and angst on the part of our most vocal liberals to our most important secular law? The answer, it is becoming ever more clear, is that the Constitution threatens the whole liberal project -- and at a crucial time. I don't mean to suggest that the Constitution is partisan; it's neither a Republican nor a Democratic document. But the "change" that President Obama was referring to in his famous campaign cry turns out to be a vast expansion of government and of federal power. The only place the federal government gets any of its powers is in the Constitution. And in its plain language the Constitution grants the federal government only limited powers.
ONE OF THE WAYS the Founders limited the powers of Congress was that they enumerated them. They listed them carefully, one by one. And -- the crafty critters -- they did so in writing. Most of these enumerated powers are in Article I. It is the article that establishes the Congress and its two cameras, the Senate and the House. The actual enumeration of the powers is in Section 8. The more one reads that list and the powers that are granted, here and there, at other spots in the Constitution, the more it is clear how shrewd the decision to enumerate, and write down, the powers being granted really is.
This fact is marked powerfully in the Bill of Rights, which, in the 10th Amendment, so pointedly reserves all powers not specifically granted to the federal government, or prohibited to the states, to the states themselves or to the people. The way this has all been done sets up in our time a perfect storm of constitutional issues, on everything from Obamacare, to the war, to same-gender marriage, to the regulation of the Internet, to the financing of education, to immigration, to birthright citizenship, and even to -- dast one mention it? -- the question of who gets to decide whether a candidate seeking access to the presidential ballot can be required by a state to present a birth certificate.
A lot of elements of the Constitution are going to come into play in the coming storm, but the most exciting ground opening before us is enumerated powers. No sooner had America revoked the Democrats' mandate in the House than the speaker-to-be, John Boehner, announced that henceforth all bills would require a citation of where in the Constitution the power was granted to Congress to do what it was being asked to do. The idea is to force the Congress to take a harder look at what it is doing to see where in the 20 or so powers enumerated in Article 1, Section 8, it is getting its authority.
My prediction is that four powers are the ones to watch: the power to tax; the power to regulate commerce among the several states; the power to establish "an uniform rule of naturalization"; and -- your author's favorite -- the power to coin money and regulate its value. Potentially historic contests involving taxing, regulating interstate commerce, and controlling immigration are already moving through the courts. It is hard to predict how the fourth of those enumerated powers might erupt in controversy, but with the dollar having collapsed, at one point recently, to less than a 1,400th of an ounce of gold it is not hard to imagine the courts at some point testing whether our national currency has to be accepted as legal tender and even to take a new look at whether the Federal Reserve is constitutional.
THE POWER TO TAX hove into view as a thunderhead during the climactic weeks of the debate in the Senate over Obamacare. The Republicans, led by Senators John Ensign of Nevada and Jim DeMint of South Carolina, raised a rare, constitutional point of order, demanding to know where in the Constitution Congress could find the power to require someone to purchase health insurance. The query was quickly brushed aside by the Democrats, whose spokesman, Max Baucus, declared that one of the places they had the authority was over what is called the General Welfare Clause.
It happens that the General Welfare Clause appears in the sentence granting Congress the power to tax. The granting to the federal government of a taxing power was, in and of itself, an enormous victory for those who wanted a strong federal government. The Articles of Confederation, the claptrap agreement that the Constitution superseded, hadn't given the federal government any power to tax. It's no coincidence that taxing was the first of the enumerated powers. The way the Founders phrased it is that the Congress shall have the power "to lay and collect Taxes, Duties, Imposts and Excises, to pay for the Debts and provide for the Common Defence and general Welfare of the United States."
Liberals like to suggest that the reference to the "general welfare" means Congress can do almost anything. Yet the record suggests that the Founders saw the General Welfare Clause as a limit on its taxing power. They even foiled a bid by one of the wordsmiths of the Constitution, Gouverneur Morris, to change the grammar of the clause by changing the comma after the word "excises" to a semi-colon and making a separate paragraph out of the phrase "to pay for the Debts and provide for the Common Defence and general Welfare of the United States." This would have created not a limit on the taxing power but a separate and limitless spending power. Morris's scheme was defeated; there was even testimony about it in the Congress by an early treasury secretary, Albert Gallatin. One scholar, Philip Hamburger of Columbia University Law School, has summed up the contretemps by noting, "Rarely has so much rested on so small a point."
Not that parsing the grammar is the only way we have to divine the Founders' intent with respect to the General Welfare Clause. James Madison himself addressed the matter inFederalist 41, when he, Alexander Hamilton, and John Jay were trying to get the state of New York to ratify the Constitution. He noted that it had "been urged and echoed" that the taxing power "amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare." He called the view "a misconception," noting that had it been true there would have been no need to continue with the long list of enumerated powers that follows.
However abstruse the grammar of the General Welfare Clause may be, it is likely to be only one of the issues in the case against Obamacare that has now been launched by more than half the states and is working its way toward the Supreme Court. For authority to require Americans to buy health insurance, Senator Baucus also cited another enumeration of federal power, the Commerce Clause. It grants Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." InThe Citizen's Constitution, my annotated guide to our basic law, I liken the Commerce Clause to a "kind of constitutional shuttle on the loom of our national fabric -- flung in one direction by states wanting to regulate matters that are beyond their reach, and in the other direction by a Congress that wants to regulate matters where it has no authority."
History suggests that it would be reckless to take this power for granted. It was under the Commerce Clause that President Franklin Roosevelt's administration tried to defend the centerpiece of the New Deal, a law called the National Industrial Recovery Act. The law was challenged by a family of poulterers from Brooklyn, the Schechter brothers, who had been convicted of criminal charges for failing to follow its dictates. The Supreme Court concluded the feds didn't have the authority to regulate the butchers' business within New York State and threw out the law in a decision that was unanimous.
Whether the Court will take such a line in respect of the health insurance mandate in Obamacare is hard to predict. The Schechter case stunned FDR and put it in his mind to pack the Supreme Court by expanding its membership. His court-packing scheme, while it failed in the Senate, seems to have rattled the Court. For no sooner was the packing plan presented than the Court started reversing course on the Commerce Clause, using it in a big case against Jones & Laughlin Steel to allow the regulation of labor and even, within a few years, to let the government prohibit a farmer, the hapless Roscoe Filburn of Ohio, from growing crops on his own farm for his own use.
AS THE OBAMA ADMINISTRATION presses for ever more power, the battles over the General Welfare Clause and the Commerce Clause will be something to behold. But they may prove weak beer compared to the immigration case that is shaping up at Arizona. It presents an odd reversal of roles from the Obamacare cases. The challenges to Obamacare are being brought by states that assert the Congress acted where it didn't have an enumerated power. In the immigration case, known as United States v. Arizona, the claim is that a state acted where the Congress holds the enumerated power, putting the Grand Canyon State in violation of the Supremacy Clause that establishes the Constitution, and the United States laws and treaties made under it, as the supreme law of the land.
Congress's power in respect of immigration is enumerated as the power to "establish an Uniform rule of naturalization." The plain meaning of the phrasing suggests that insisting on a rule that is uniform the Founders wanted to make sure that there wasn't a different route to becoming an American depending on which state was involved, i.e., they wanted a nation. "The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country," is the way America puts it in the complaint in United States v. Arizona.
The supremacy of the enumerated power of naturalization that the Constitution gives to Congress isn't the only issue in the Arizona case, though; there are civil rights claims as well. One of the odd things about the Arizona case, in any event, is that America is asserting a power that it could be argued it has chosen not to use -- or, if there is a uniform rule, to enforce. It is hard to predict how the case will fare should it get to the Supreme Court. But it is not hard to predict that, given the scale of the failure to secure the southern border and the level of tensions on both sides of the question in Arizona and other states, the case could emerge as explosive.
NOT, HOWEVER, AS EXPLOSIVE as the question of whether the dollar has to be accepted as legal tender, which I believe is the most important constitutional question awaiting a champion. It happens that the Constitution didn't create the dollar; it was in existence at the time the Constitution was written. What the Constitution did was grant Congress the power to coin money and regulate its value. It first did so in the Coinage Act of 1792, which adopted the dollar as the unit of account and set its value at 371 grains of pure silver or the free market equivalent in gold.
The greenback came into being as a way to pay for the Civil War, and no doubt preserving the Union was worth an enormous risk. But the dollar has gone downhill from there, rarely more rapidly than in the past decade, in which the dollar has plummeted in value to little more, at the time of this writing, than a 1,400th of an ounce of gold. Despite the plunge in value, the greenback has to be accepted as legal tender in payment of debts. It has been that way since 1871, when the Supreme Court decided a pair of cases, one involving a payment for a flock of sheep and the other some land, that the greenback would have to be accepted. It later ruled, in a case involving payment for cotton, that even without war as an excuse, the greenback had to be honored.
So sickening has been the steepness of the recent plunge in the value of the dollar that there are serious people thinking about whether it would be possible to reopen the question of legal tender. They are not worried about inflation as defined by the consumer price index; they are worried about future inflation and the very definition of the dollar. Received wisdom suggests it would be impossible to challenge legal tender laws. But feature this. A group of the most distinguished judges on the federal bench -- Peter Beer, U. W. Clemon, Terry Hatter, Thomas Hogan, Richard Paez, Laurence Silberman, and A. Wallace Tashima -- is asking the Supreme Court to overturn a decision of Congress to suspend an automatic adjustment in their pay to account for the inflation that had been ravaging their income. The judges don't like the prospect of getting paid in dollars that aren't as valuable as they used to be. In that, they are just like the rest of us.
Or are they? Well, not quite. It turns out that Founders who framed our laws were so furious about the way George III made judges subservient to his own will for payment of their salaries that they listed -- right in the Declaration of Independence -- the abuse as an enumerated cause of our seceding from England. Then they wrote into the Constitution that the pay of a federal judge shall not be diminished during his term in office. That is American bedrock. So if in, say, the year 2000 a judge was paid in dollars that were worth a 265th of an ounce and today is being paid with dollars worth less than a 1,300th of an ounce of gold, has his pay been diminished?
To consider the scale of what one is talking about, regard the pay of Judge Silberman. When he was assigned to the District of Columbia Circuit of the United States Court of Appeals, the salary of a federal appeals judge -- $83,200 at the time -- was worth 258 ounces of gold. The value of the current pay of a judge on one of the appeals circuits -- $184,500 -- has plunged to a measly 139 ounces of gold. Were Judge Silberman paid in gold from the start, his pay would today be something on the order of $350,000, which is much more like what it should be, particularly given what the federal bench needs to be paying to attract the best minds in the legal profession.
This isn't quite the argument the Honors suing over their pay are making before the Supreme Court, at least not yet. Their petition for a Supreme Court hearing suggests they want merely to enforce the automatic adjustment that Congress in recent years has suspended. I don't mind saying that, while I believe the justices have been wronged by Congress, I hope they lose on the question of whether a suspension in the automatic pay adjustment is unconstitutional. That should get them angry enough to come back and look legal tender in the face. They could force the Congress to pay them in the gold or silver equivalent of a federal judge's salary at the time they were appointed to the bench. It would move judges to the kinds of salaries the lawyers before them are receiving.
And people would start to ask: If judges deserve honest money, why shouldn't the rest of us?
To those who suggest such a scenario is far-fetched, one can say, no more far-fetched than the notion that the entire post-Civil War monetary regime of America would rest on disputes of more than a century ago over payment for a flock of sheep and some bales of cotton. Or that centuries of law on abortion could be upended in a fell swoop by one Supreme Court ruling. Can the Court cast aside precedent to decide such a sweeping issue as legal tender? It certainly didn't hesitate -- nor should it have -- in disposing of the notion that racially separate schools could be equal. With everyone from the United Nations to Communist China calling for the abandonment of the dollar as a reserve currency, is it so hard to imagine that the Supreme Court might revisit the legal tender cases?
NO WONDER THE LEFT FACTIONS are so upset, even horrified, at a reading of the Constitution. Its plain language is a challenge to those who think the government can do whatever it wants. The very decision of the Founders to establish a written constitution -- England's is not written, though parts of it, like the Magna Carta, are -- was a radical one, creating, as it did, a device through which the terms on which the people and the states were contracting could be enforced over time. Here's how Chief Justice Marshall put it in the most important of all Supreme Court cases, Marbury v. Madison: "The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written." The liberal camp can take hope in the fact that, while the powers that were granted to Congress may be limited, they are not niggling. Even the limited powers given to Congress are enormous. Conservatives can take hope in the fact that as a runaway administration seeks to break free of the constraints laid down by the Founders there is a parchment on which the terms of agreement were written down, signed, and sealed.
