Strengthening Constitutional Self-Government

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The Founding

The Crisis Affords an Opportunity

WaPo notes the attraction of Colonial Willliamsburg for Tea Party adherents and other anti-liberals who are inspired by the Constitution and seek guidance from the founding.  Obviously, they won't find what they are seeking in historical exhibits, however well done.  Of course, the Federalist Papers and other founding documents are on-line, but they require mentors for more than a superficial understanding.  Popularly written commentaries, websites, and media appearances can help, but nothing replaces an inspiring teacher.

Why not a consortium of trusted, thoughtful conservatives who can teach the founding to thirsty citizens?  The project will need to extend to every major and medium population center and require years of involvement.  The Ashbrook Center, Hillsdale College, and the Claremont Institute can offer resources, and numerous other think-tanks and scholarly centers can contribute to these "Committees of Correspondence" as well.   Maybe these fine institutions should just continue doing what they have been doing and not adjust their programs to the instant situation.  But it would be a shame to waste this constitutonal crisis.

Categories > The Founding

Discussions - 19 Comments

I could not agree more strongly. Dr. Andrew Seeley and I have been doing this with high school students for several years, using a text that we wrote, plus, of course, many selections from the founders and others, including the wonderful Coolidge 150th anniversary address.

We have taught the course on line and face to face many times.

I can be reached here, or at my email address, [email protected], or via facebook, where I am friends with Julie Ponzi and several other folks known to you here at Ashbrook.

Funny you should mention this, but my wife has been trying to "inspire" me to begin just such a project for months now.

Let's get it going ... but don't forget to think of a little compensation for the horses who pull this cart!

I was just remarking to another friend today that it used to be--say 5 or 10 years ago--that when I would inform old friends and acquaintances about what I do/study for a living, they would generally greet me with that glazed over disinterested look of "oh, you like history?!" and then they would dismiss the conversation as they might someone who announced a keen interest in the mating habits of fruit flies. In the last few years I have had quite the opposite experience, however. People are starving for this kind of information and are eager to engage in political conversation--but the character of the conversation is different too.

A few years ago I began to notice it with the growth in popularity of FOX News. But since then, the conversation and the questions have shifted from what do you think of "public figure X" to what do you make of 10th amendment and other more fundamental questions.

Often, Ken's instincts are correct and there is a kind of superficial character to the scholarship and experiences that people have been able to garner on their own and, of course, it would be wonderful if everyone had access to and time to absorb the efforts of a great tutor. I am all for implementing such a program. But I would not dismiss the things that people are already doing for themselves in this regard or be too quick to write off the power of such destinations as Colonial Williamsburg to inspire further inquiry. It might be smart to consider penetrating those places with the right books, the right kind of advertising/marketing campaigns (conservatives really need to get over their hesitancy to advertise unless they like talking to themselves . . .) and such. Entrepreneurial conservatives with a good grasp on the right ideas would do well to take advantage of this opportunity to utilize the right horses for pulling the right carts. Not only is there a fabulous opportunity to inspire right thinking, there is also great potential for good, old-fashion American profit.

Constitutional Crisis?-Hyperbole.

What do you make of the 10th amendment?

I think the 10th amendment was a political concession to the anti-federalist and supporters of the articles of confederation that neverthless failed to include language that would have expressly limited powers of the federal government. Thus it wrongly molified folks who were worried about Article 1 sec 8 but did not amend the necessary and proper clause.

In 1931 in US v. Sprague the court said that the 10th ammendment added nothing to the constitution as originally ratified. That is more or less correct.

On the other hand the 10th ammendment is used to try to get at exactly what powers Congress is using in a given piece of legistlation. Congress can use the spending power as a carrot and the commerce power as a stick(pre-emption) but congress cannot directly commandeer/force the states to enforce federal law.

The anti-commandeering rule comes out of the 10th ammendment according to Scalia in Printz.

While bringing up 10th amendement triggers questions about congressional power to spend or invoke the commerce clause, the somewhat recent case that limited the commerce clause US v Lopez didn't mention the 10th amendment in either the majority or dissenting opinion.

A prominent 10th amendment case involves California and the conflict of law that is created by legal pot in California. Gonzales v. Raich just follows the reasoning of Wickard v. Filburn and argues that even if you grow pot for personal consumption the fact that you supply your own demand has an effect upon the aggregate demand since presumably if you did not create supply you would demand someone else's and this would affect interstate commerce. The reasoning of Wickard is sound, but essentially means the commerce power is virtually unlimited as far as regulating commodities is concerned. Of course the fed's can't force California to spend its money or personel in destroying farms in the emerald triangle since this would be commandering.

The Arizona case is broadly speaking a 10th ammendment case that deals with the opposite of commandering, a state that decided to enforce an area that was arguably pre-empted by the feds. Essentially waving the right on a single issue not to be commandered.

Technically if the National Guard of a particular state is controlled by the Governor of that state then participation in Iraq and Afghanistan is voluntary. If this is the case then states can wave/consent to the commandering provision, and the 10th ammendment adds nothing.

Ironically if some local democrats suceed in passing "Bring the Guard Home" and there was some clarification, in just who controls the national guard and whether or not it can be used for federal purposes(which the war in Iraq and Afghanistan certain is). Technically I don't understand the chain of command for the National Guard, do they answer to the president or the governor?

The main idea behind anti-commandeering is to provide some clarity as to who or what level of government is in charge or to blame.

It is ironic then to say that the 10th ammendment is a fundamental question and that what you think of person X is a less fundamental question. That is because the 10th ammendments purpose is to let us know which individual in which branch of government is to blame.

Its sole purpose is to let folks know who should get praise and blame. Without a doubt and despite its anti-commandering purpose it is failing. It is no exageration to say that the 10th ammendment is at the genesis of the constitutional crisis and that the hype of Obama both in terms of praise and blame has reached a fever pitch level of proximate cause abstraction greater than that employed in judging the commerce clause, which is saying something.

Offhand--and maybe this will exhibit instincts Julie thinks I sometimes have right--the focus on the 10th (and 9th) amendments, like the obsession of some with the 2nd, distorts what ought to be argued overall--a limited government based on the natural rights of the Declaration of Independence. Activists on all these issues are doing good work, but they need to see this even larger picture.

To John above: the recitation of the 10th amendment by some often just begs the question of what is national, what is federal. Yet, federalism is an unamendable provision of the Constitution. It actually makes more sense, both rhetorically and philosophically, to argue in terms of natural rights and natural law.

BTW, the captcha code for posting this is "The Manichean."

The best way to look at the 9th and 10th amendments is that they are exactly what they state they are: a refutation of the idea that one day someone in the federal argument would be able to credibly say that the states are mere adminstrative divisions (think pre-Revolutionary France, with aboslutism) or that the people did not retain popular sovereignity (a debate that rung through English history)

The above points may sound trite but they weren't and aren't. They were preemptive blows against those who would try (say, the High Toned Federalists) to say that now that the Ratification Conventions had been had, the people have vested sovereignty in the national government and the federal government was the only government of any significance. They are thus statements that in fact the system will be one of dual sovereignty (really, single sovereignty with three devolutions--people, states, national government).

It is also my belief that the capping of the lower limit of Congressional representation (districts no smaller than 30,000) was done for the exact same reason--so that a national legislature could not say the states were not needed, as they represented the same population. The counter-response would then be that the congressman could never legislate to the same fine level of detail as the state legislator could, because the representation of the state legislator's district was such that he was more intimately familiar with the desires of the people, more in touch, and therefore for matters of strictly local character the job had to be left to the states. And that argument would have implicitly carried weight back then.

My take, at any rate.

All these things still matter. No Supreme Court ruling or political practice can render a constitutional clause functionally useless. If the end result of decision after decision is to make a clause a nullity, then it is the decisions that must be overturned, not the clause.

People are flocking to Williamsburg because they thrist for a political debate that is also intellectual. They want to study tracts and polemics. They want to argue points and ponder upon finely turned arguments. The time is right. I argued nigh three years ago exactly for what has been proposed here. May it come.

Reattack: the 9th and 10th amendments came about because a generation that just had to fight a war because a distant legislative body said it had the right to make law for Americans "in all cases whatsoever" was not about to tolerate a new national government one day attempting to do the same.

My employer in Raleigh, N.c., is putting on a Citizens Constitutional Workshop this weekend titled "What the Founders and the State Ratification Conventions Can Teach Us Today."

The event is oversubscribed, which I see as a very good sign.

I believe their are state militias (e.g. the New York Naval Militia) outside of the National Guard. If I am not mistaken, the Guard was erected pursuant to a federal statute adopted in 1870, and that the President has the authority to place a state Guard under his command. I believe Pres. Eisenhower placed at least one state Guard under his direction to enforce a desegregation order ca. 1957.

would be able to credibly say that the states are mere adminstrative divisions (think pre-Revolutionary France, with aboslutism)

Provincial and local government in Bourbon France was quite variegated and studded with special dispensations. The legal system was a patchwork (there were 13 ultimate courts of appeal and not one whose jurisdiction covered the whole kingdom) and local customary law was salient.

Tea Party adherents and other anti-liberals who are inspired by the Constitution and seek guidance from the founding. Obviously, they won't find what they are seeking in historical exhibits

The exhibits are there to display the material culture of the colonial period, which is a more vigorous instruction in history than reading political broadsides and legal documents.

Some time ago, Robert Bork wrote that one could make a passable case that the issuance of paper money was not within the enumerated powers of Congress and the executive - that the framers had intended to limit their powers to the production of specie. He went on to say that a federal judge who attempted to shut down the Bureau of Engraving and Printing and the Federal Reserve would not be an exemplar of the meticulous jurist; he would be a madman. Judge Bork offered this as an example of when you would apply the principle of stare decesis.

One thing we might garner from our history is that the the vicissitudes of social life as manifested in our politics put so much stress on the political architecture that said architecture was left in ruins with its federal aspect observed only haphazardly. The discussion might be more productive if it went in the direction of considering what an amended distribution of powers and duties between the center and provinces might look like and what sort of institutional forms might allow for adjustments in response to stresses. Treating the original (and now defunct) set of delegations as canonical literature is unwise.

Ken . . . I agree (again) with your instincts. However when regular people (and not activists) now approach you with such questions, isn't it a better beginning to that broader conversation than "oh . . . you like history? . . . cool."

A good point on historical exhibits, but I presume what people are seeking is a political lesson--exercising prudence based on what they discover. The history is instrumental to another good. I do think the two attitudes compliment each other.

On your longer point, the principle needs to be firmly reestablished: Congress can't continue to delegate its powers without ceasing to be the legislative branch. Consider how much of an office's time is spent on constitutent service vs. legislation. Those are fundamentally different mentalities and attitudes towards Article I duties and powers. The Healthcare law is simply a bigger example of what Congress has been doing for 40 years....

Your commendable recommendation about greater respect for the provinces may work without Congressional self-control, but I am dubious.

I was thinking of formal institutional constraints on the extent of the legislative power of the central government, about which I have made myself quite a bore hereabouts. The specific delegations in Article I proved to be ineffectual, in part because you only have a modest amount of text to specify your constraint, in part because the commerce clause and the implied powers clause proved malleable, and in part because certain habits and rules-of-thumb and taboos dissipated after 1932. This last occurred because the country encountered a situation to which the political architecture could not readily adapt.

"and in part because certain habits and rules-of-thumb and taboos dissipated after 1932. This last occurred because the country encountered a situation to which the political architecture could not readily adapt."
I think intellectual virtue of the sort provided by Amity Shlaes, among others, needs to replace those instinctual or habitual responses.

Sorry, Ken. Invoking James Madison won't help you manage a banking crisis, then or now.

Different people in the world receive the personal loans in different banks, because this is comfortable.

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