Throughout most of the eighteenth-century, it was common for drafters to begin every noun with a capital letter, just as Germans do today. This convention was fading by the time the Constitution was drafted (1787), but Gouverneur Morris, who actually penned the final document, elected to follow it. That is why nouns in the original Constitution…Details
Most of the leading Founders were lawyers. According to eighteenth-century law, a preamble explained the purposes of the document. The preamble was not part of the actual law, but was used to help explain the text. It was considered a “key to open the Mind of the Makers.” The Constitution’s Preamble lists six purposes: (1) form a more…Details
Behind the current constitutional debates over ObamaCare, there is an assumption that Congress has power to regulate health insurance as “Commerce among the States.” However, in various decisions over 150 years, the Supreme Court ruled that “insurance” was not within the Constitution’s definition of “Commerce.” Only a single aberrant Supreme Court case says it is.…Details
In a recent post, I explained that Congress obtains authority to spend money from its enumerated powers. All of those powers inherently require some expenditures—at least to buy the pen and ink needed to write the laws. Some powers, such as the power to “maintain a Navy” (Art. I, Sec. 8, cl. 13) require expenditure of great deal of money.
In addition, the Necessary and Proper Clause (I-8-18) enables Congress to spend funds to carry out a power in ways customary at the Founding or reasonably necessary. For instance, Congress may hire revenue officers to collect the taxes authorized by I-8-1 because such was Founding Era custom, and it may maintain IRS websites because such has become reasonably necessary for efficient tax collection.
The Constitution imposed several limits on taxes, of which two are important here. First, Congress could tax only to raise funds to be spent “to pay the Debts and provide for the common Defence and general Welfare of the United States.” (I-8-1). During the Confederation era, there had been many cases of states discriminating against other states, even in conduct of the Revolutionary War. As explained during the ratification debates, the General Welfare Clause was designed to ensure that taxes could not be imposed purely to benefit particular sections of the country or particular special interests. The goal was to ensure that government spent money impartially—a goal inherent in the Founders’ belief that government was a public trust, subject to fiduciary standards.Details
Last week, Senator John Kerry (D.-Mass) was unhappy with a Republican plan to cut as much as $61 billion out of the federal budget. “I think it’s an ideological, extremist, reckless statement,”Kerry said of the plan.
I hadn’t kept up on all the numbers recently, so I took a look at President Obama’s 2011 budget. My shock at the numbers was matched only by my shock that even Kerry could say something that demented.
The fiscal situation America now faces is unutterably appalling. I don’t want to bury you in numbers, so I’ll just mention a few, rounding out to the nearest hundred-billion.
First, the deficit is not just a few percentage points in the budget. Fully a third of all spending is now on borrowed money—that is, $1.3 trillion out of 3.8 trillion. That would be like spending $100,000 a year on a salary of $67,000.Details
How can a government that supposedly is one of enumerated powers spend trillions of dollars on everything from semi-porn art exhibits to bridges that lead to nowhere? How could a government of enumerated powers have gotten us into such a sinkhole of debt?
This posting will explain how the Constitution authorized Congress to spend money. Next week’s posting will explain how the Constitution limited spending. It also will explain how politicians and judges have burst those limits, resulting in the present chaotic situation.Details
[Rob Natelson is the author of the new book, The Original Constitution: What it Actually Said and Meant. To learn more about this topic, hear Rob’s podcast on Election Law and the Election Clause.]
The Constitution granted Congress only enumerated powers. Did those powers include measures of “campaign finance reform?”
Congress justifies campaign regulation as flowing from its constitutional power to regulate the “Time, Place and Manner of holding” elections for the House of Representatives and the “Time . . . and Manner of holding Elections” for the Senate. (Article I, Section 4, Clause 1.) The Supreme Court has assumed that when the Founders wrote “Manner of holding Elections” they included campaign rules, but there has been astonishingly little published research on the subject, either by the Court or by other legal writers. When the Court hears campaign finance cases, it focuses mostly on the First Amendment rather than seriously investigating whether the Constitution granted Congress the power in the first place.Details
Unlike some both on the right and the left, I don’t think the reading of the Constitution in Congress was a purely symbolic or useless endeavor. It was quite evident that some of the readers were seeing the sections they read for the first time in a very long time, if ever. So it served an educational function for members of Congress.
The reading was educational for observant members of the public, too. The way some Members stumbled over the words—during an event they knew was going to be telecast, and for which they presumably had prepared—tended to show (1) how unfamiliar they were with the text and (2) how inarticulate and mentally-clumsy some of them appear when not regurgitating the “talking points” they have repeated a thousand times before.Details
One of the most neglected tools for understanding the Constitution is also one of the most important: The Law of the 18th century.
The Constitution is a legal document. It was written mostly by lawyers. It was explained to the ratifying public mostly by lawyers. And that public was exceptionally well-versed in law: As Edmund Burke pointed out in his 1775 speech on Reconciliation with America, “In no country perhaps in the world [as America] is the law so general a study.” And while most of the Constitution is written in straightforward lay language, it does contain some important legal terms of art.
Yet very few writers on the Constitution – even law professors – have made much of an effort to access 18th century law.Details
The federal government may not be able to balance its budget or even pass an appropriation bill on time, but it certainly can tell other people what to do.
The U.S. Census Bureau is now sending out an “American Community Survey” demanding that randomly selected citizens answer personal questions about themselves. With their usual sense of discretion, the feds include a line in the cover letter saying you are violating federal law if you don’t’ respond.
A reader sent me the questionnaire. I’m pretty jaded where the federal government is concerned, but even I found the arrogance astounding. In addition to demanding the usual data for the “diversity” police (such as the race of everyone in the home) the questions includeDetails