What Would Madison Do?
08. Nov, 2009 
35 Comments
by Michael Cummins
In one of his final acts as president, James Madison did something almost unthinkable by modern standards: he vetoed a bill solely on Constitutional grounds.
President Madison agreed that it made sense to use federal funds for the construction or upgrade of vital roadways and canals within the states. But the Internal Improvements bill of 1817 was contradicted by a higher law, namely the absence of a concomitant enumerated power in Article I, Section 8 of the Constitution.
Being among the Framers of our legal system, Madison understood that when two laws clash, the higher one wins out. True to his oath of office, he refused to challenge the Constitution by endorsing an invalid inferior statute.
Seeing this specific issue coming to the fore, Madison had a couple years earlier let Congress know exactly how everyone’s spending wishes could come to pass. He encouraged Congress to fire up the process for amending the Constitution. Given the substantial support that the notion of federal spending on infrastructure enjoyed, it seems likely that the states would have been willing to delegate such power to the federal government, if asked. Congress instead tried the easy route, in the vain hope that Madison was bluffing.
In the almost two hundred years since Madison’s veto, the federal government’s spending authority has still not been officially augmented. But that has not prevented our national leaders from establishing a fantastic variety of new spending programs. Politicians of every supposed political stripe (including many who ostensibly repudiate “big government”) have come to accept federal omnipotence as a given.
Those who still give lip service to the Constitution as law (as opposed to some sort of “guiding document”) justify spending as they please through spontaneous discovery of the Constitution’s “living, breathing” nature, a catch-all interpretation of the general Welfare clause, or the favoring of novel semantic construction over plain-English intent. They have appointed a complicit judiciary to provide cover.
In its end-run around federal limitations, the establishment was skillfully guided by America’s ‘progressive’ intelligentsia. Leftist academics, specifically, provided the philosophical undergirding of expansionist policy.
Of course, systematic misinterpretation of the Constitution was not the only possible route to a dominant federal government. Instead of pushing shortcuts, principled progressives could have advocated that federal prerogative to new powers be secured by Constitutional amendment prior to legislative actualization, in sync with Madison’s exhortation to Congress.
Over time, the states might well have become willing to formally turn over all sorts of responsibilities to the federal government. With every war it won, and with every year it persisted as other governments around the world fell to revolution, the US government appeared to be more competent and stable, worthy of taking on new roles. Had the left pursued a measured, truly Constitutional path to federal expansion, we might today be like the countries of Western Europe, with a centrally-managed welfare state that is completely legal.
But, on the face of it, we cannot expect progressives to be overly-sensitive to the charge that, because they declined to play by the rules, their whole racket is illegitimate. After all, they got their way, and they and their fellow spendthrifts are more or less in charge at every level of government. Why should they regret having bypassed the burdensome formality of the amendment process?
There is actually a very good reason. Given its history, how seriously can the modern left expect to be taken when, for example, it decries DEA raids on California medical marijuana clinics, on the grounds that the clinics comport with state law? Appeal to federalism is, by right of equity, no longer available to the left. As a matter of fact, every time Congress tries to reverse state measures on assisted suicide, or to regulate marriage, the left itself must share the blame.
Through their demonstrated willingness to cut corners, progressives have also hobbled their advocacy for the preservation of the civil liberties enshrined in the Bill of Rights. The futile cries from the left that the Bush Administration “shredded the Constitution” through its eavesdropping and detention policies were, on one level, quite galling.
Having worked so diligently to debase the structure set up by the opening articles of the Constitution, progressives hardly have purchase to claim offense when that document’s first ten amendments are disrespected. The Constitution is not an à la carte menu.
The mainstream right has, of course, had its own problems with consistent, objective respect for the rule of law. For example, those whose evaluation of War on Terror policies begins and ends with “Bush kept us safe” should consider that, but for lingering respect for the Second Amendment, private gun ownership would likely be a thing of the past. But the right’s misdeeds are beyond the specific scope of this article.
Even if today’s progressives come to fully comprehend the destructiveness of past political mistakes, it is far too late for them to set things right. They are by now completely invested in the legislative fraud through which the institutions of unlimited federal government were created and nurtured.
But the very fact that these institutions stand on such shaky legal ground could be the germ of their eventual demise. If and when we start actually obeying the rules, then higher Constitutional law will automatically trump the statutory law upon which the federal behemoth depends. Fiscal liberalism will be immediately out of business. So we should in this sense be grateful for the left’s procedural delinquency.
Once upon a time, progressives had an opportunity to do their thing, by the book. But they blew their chance.
Michael Cummins is the Clark County, Washington, coordinator for Campaign for Liberty. He is also an operations specialist in the telecommunications industry and a part-time musician.
Copyright © 2009 Campaign for Liberty, published with permission.
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The rule of law will never matter as long as the government and the U.S. citizens think they can vote themselves the wealth of others.
Exactly. And they learned that long ago…
Amen!
As I've said innumerable times before, I'd feel a lot better about it (not to mention a lot more in control) if they'd just confront me directly and demand that I give them my money, the product of my labor, rather than to, in an act of cowardice, vote it out of my pocket.
P.S. You'll have to forgive me because I ain't feeling particularly generous at this point.
"Majority Rules" allows two (2) people walking one direction to rob an individual walking toward them. There was a time when either everyone agreed to a particular action or it did not take place!
Madison's veto of the federal public works bill reveals a problem with the way that people have understood the Constitution since it was ratified, IMO. More specifically, people seem to naturally look for "don'ts" in the law as opposed to dos. And not fully understanding that the Founders had intended the Constitution as a very limited "to-do" list for the federal government, I suspect that this is why the Congress during the Madison administration thought it appropriate to make a public works bill. In other words, Congress probably thought that since the Constitution doesn't say that they can't fund canals, etc., then doing so must be constitutional.
The problem is that when you hear today's federal Democrats and RINOs talk about the Constitution, that same kind of constitutional ignorance prevails today.
This president would never veto a bill on those grounds as he only see the Constitution as a suggestion.
U.S. presidents never veto a bill on those grounds as he only see the Constitution as a suggestion.
fixed that for ya!
Seriously, though – as the article points out, a veto on constitutional grounds just doesn't happen anymore – and it doesn't matter if the president's name is Obama, or Bush, or Clinton or Reagan…
How is it the house and senate have judiciary committees yet they function to find the ways available for their brethren to provide the milk and honey to get themselves re-elected instead of looking at the constitution and becoming expert at providing what duties it does saddle them with?
How much of the constitution must be violated before it becomes invalid as law? Did the supreme court not rule already that congress can not just turn the constitution on and off as it sees fit?
How will the people ever find relief from the courts when the legislators now create such convoluted bills that the people affected by it most would never be able to afford the process to seek protection from them? The sheer volume of legal concoctions suggests a manner of legislating that the people could not unburden themselves of simply due to the economic investment required let alone the time required to pursue each and every separate infraction the court will narrowly rule upon. It is a scheme right out of a certain manual, to use the system to overburden itself.
I now understand why there are actually references to three charters which legally apply to the US, the bill of rights, the constitution and the Declaration of Independence. When the former fail the latter remains an enforceable law which the people can turn to in correcting the lack of respect for the peoples right to institute government when it is no longer served by the one claiming legitimacy yet openly violating the intent and limits set upon them.
Here is what Alexander Hamilton said should be done:
"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defence which is paramount to all positive forms of government…. The citizens must rush tumultuously to arms, without concert, without system, without resource, except in their courage and despair. "
Federalist No. 28.
And that is why there is such a problem with the Second Amendment from some quarters.
What an excellent article! And the answer to this problem we find ourselves in is here:
http://www.tenthamendmentcenter.com/2009/10/20/th...
We're working out the details to have Susan Lynn on our Radio show hopefully within the next few weeks.
Michael Boldin – would you like to also be a featured guest on this show if your schedule allows?
-Joshua
http://www.ForgottenMen.com
Absolutely, Joshua! Susan Lynn is inspirational, indeed! Shoot me an email when you've got a few and we'll work out scheduling once you know for sure.
It never ceases to be amazing the lengths some will go to to demonize an opposing viewpoint, but here we have just such an example in both article and comment!
The Constitution is not a “living document,” a viewpoint that is both contrary to the Tenther Movement and the conservative minded. It MUST BE understood as intended by the Founding Fathers! Great idea in prenciple, but impossible to implement in practice. Why? Because 1) the Founding Fathers, even as they helped create a wonderful nation, are not supergenises! and 2) We do NOT know their intent! Sure we have writings of the Founders, but like all that is left behind, it is open to interpretation.
Fight the good fight, but do not assume that your interpretation is the correct one!
The idea that the Constitution is a "living document" as in changeable by the arbitrary choices and "opinion" of politicians and the courts they appoint based upon "their view of values and times" is contrary to the very idea of having ANY Law and Constitutionalism period.
An unwritten Constitution may be a "living document" but a written Constitution is written precisely because it is not. Any such "Constitution" or law which was valid because it was originally consented to by the people and their States to be ruled under it in the first place, can not be regarded as law at all, because any "new" such interpretation of its grants in power WAS NOT consented to by the same people and their States.
This is why they left us the ability to amendment that constitution, they agreed it was not perfect, and perhaps even new times and experience might expose its flaws. That amendment process you will note is much more difficult then simply court rulings or congressional law passing, because the ramifications of expanding a government's power are far more serous then how a government uses the power already consented to.
The other key thing to remember is the Right of secession being a last ditch option, for the 1/4th that do not consent to ceding that power to this central government.
This is Constitutionalism Rev J. D. Spears, and it is logically essential to the function and preservation of any free people in being governed based upon their consent rather then being governed based upon the sword. I am quite convened by both practical and logical trial that to assert the constitution or any law for that matter is a "living document" is quite exclusion to the very existences of law, because of the nature of any change in meaning which any "living document" would allow, is quite frankly identical to rewriting the same laws based upon arbitrary will of the enforcer/follower.
Rev Spears,
Is it right to conclude from your comments that you believe the founders intended abortion to be funded by your wages? Or that the founders would have been okay with everyone being told to get health insurance or face incarceration? From I have read of history related to the time period the founders thought that everyone should be left to make thier own way and pursue their own happiness, so long as it did not infringe on another. There was desire to create an all powerful central government that controlled all aspects of our lives.
Finally, I will say that if you believe in a "living" Constitution, then you have already doomed it to death. For if it can be reinterpretted without boundaries then it is not worth the paper, time or signatures affixed to it.
I meant to say there was NOT a desire to create an all powerful central government.
This is correct Garrett, such an idea is also an assault upon the rights of the people and democracy, We did not get a vote as to weather or not we consisted to the Federal Government could declare the "right to privacy" to the exclusion of the "right to life."
The usurper U.S. Supreme Court robed we the people of that right in many times perhaps the most volatile of which was its ruling "Roe v. Wade" back in 1973.
This was not the will or consent of the people this was the dictatorial order of a usurper U.S. Supreme court shoving its opinion and views upon the people. As a direct result of this dictatorial order , as many as 40+ million Americans we're forced to pay with their lives, as they were denied the equal protection of their States forced by the arbitrary dictator to ignore any possibility that they were in fact human and alive, and thus as entitled to the equal protection of their rights to life as anyone else.
A living Constitution is no constitution at all, Constitution of civil Governments like all other lower laws are either constant or their arbitrary, and thus no Constitution or law at all.
We are a chorus of righteous citizens, indignant and dissillusioned with our Representatives because they are not responsive to us and all three branches seem content to twist, bend and mutilate the Constitution to suit their purpose of the moment. Yet the Constitution provides that we, you and I, are the custodians of its provisions. We have allowed our education system to mute that responsibility and I never met anyone who takes that responsibility literally. So this is what we get. Exactly what we deserve. Most crimes are crimes of opportunity. We have given our elected officials ample opportunity to reinvent our Democratic Republic government and they are not the least bit hesitant to take full advantage of our largess. It is not too late to enforce the rules of government as they were designed for us. If we take our rightful position as custodians, be the responsible electorate our forefathers expected us to be, we can take back our checkbook and restore our Judeo Christian principles to our lives. Educate our youngsters. Teach them to do what we neglected to do. Hold our representatives accountable.__Guido
Unfortunately this is true. But we still possess the power to stem the tide of progressivism and restore limited constitutional governance. It is called the vote. It is only a matter of helping to ensure our fellow Americans are not entranced by the offering of bobbles by our elected officials into selling out their liberty via a vote for those pushing the progressive agenda.
Susan Lynne is soliciting comments from every state concerning a solution , Someone is planning a meeting of reps, from all states, in Omaha In Jan 2010. I think our first action should be for each state to nullify the Socialized medicine law the dems are working on in each state. Subsequently, a strong effort should be initiated to get all states Attorney Generals to agree on the best approach to reign in the illegal Fed actions. We could use as a guide the English peaceful 1688 revolution.
In future we'll nullify: EPA , gun control, restrictions on mining and oil drilling. We could implement State and county retirement plans as Galveston County,Tx. did in 1981.
We could substitute state income tax and eliminate the Fed income tax.
The possibilities are limited only by our own imaginations. THAT IS WHAT AMERICA IS ABOUT.
If you believe that the Constitution is a "living document", would want any house that was built on a "living foundation"?
A house built on sand will shift and fall with the first storm!
Go ahead and believe in a "living document", but don't cry when the results are felt and they are being felt today. We have a government that thinks that it can do anything that it chooses and we are so dysfunctional and so in debt that we soon will no longer be a nation!
We do know the intent of the Founders if we are willing to read their letters!
Which founder's intent do we know? They don't all agree, so whose do we choose?
Here’s a starting point for you:
ALL the founders agreed on the most basic structure of the Constitution – that the federal government would be one of limited, delegated powers.
And – this was approved by the ratifiers, which gave the Constitution the force of law.
Then you can move on to more specific issues, like the Commerce Clause, the general Welfare Clause, and the like.
But, it’s essential to understand that DC is to have specific limits on its power……in the constitution.
We know their intent because they affixed their name, via signature, to the document and as was also pointed out we have a litany of preserved documentation that shows thier thought process and therefore their ultimate intent. Freedom from tyranny was their intent and having a federal government tell you what you must do, as in the latest legislation, is unconstitutional and should not stand,
It is a general truth that must be restated again, and again, that the larger a government is in either its realm of control either in geographic area, people governed, and/or scope of powers/rights. The harder the same government will be for the people themselves to control as the easier it will be for those in control of that government to divide and conquer the people by means of setting them against each other, as to grant themselves a freer hand.
To this end I find it extremely unlikely that given the enormous size (both population and geographic), and diversity (both population and geographic) of the United States as a whole, that any central government Constitutional or not could be nearly as effeminately kept in check and run by the people as the much smaller such governments are in Europe.
We the people are simply too numerous, too diverse, and ultimately too distant from Washington D.C. for us to control and keep watch over it effectively enough to entrust it with that much power, and not have it go haywire.
To that end, I contend that even if they had gone about this more slowly and constitutionally correct way, it would have inevitably backfired, as it already has in becoming obscenely wasteful and corrupt.
Remember most all of this has to do with the limits of human nature. It is perhaps helpful to understand that when comparing our brain size to that of the Apes with regard to the size of the communities they live in, the communities size we would naturally live in would be numbering in about 500 people. This is odd as this is roughly historic size of our normal communities prior to the industrial revolution. It is therefore possible that we humans as a general group have a limit to how many people we can all intelligently deal with. To that end in federalism we have adopted an approach sometimes used by computers to deal with size limitations in that we subdivide into units so that we may deal with each unit as an individual, while dealing with those individual or further units under the unit numbering in comparably small numbers as individuals.
It is a way of managing large populations of people intelligently, with respect to perhaps the limitations of the average human mind. Who or what installed or created that average limitation is at this particular juncture less important then the observed existence of such a limitation across the majority of people. Also unimportant is the minority that can exceed that limitation as a group can only move as fast as its slowest members, in this case our group can only act as intelligently as the majority of its members, if it is to be ruled by democracy (majority rules).
Mr. Cummins, you deride the left for taking an a la carte approach to the Constitution, yet your article completely overlooks the commerce clause, a provision which constitutionally justifies much of the congressional action you are bemoaning. It doesn't take any kind of novel semantic construction to figure out that our food travels across state lines and needs roads to do so. Such was evidently not the case in Madison's day. Alas, the constitution is indeed a living, breathing document.
Scott it takes even less of a mind to realize that such an interpretation of the constitution would render the remainder of the document's enumerated powers virtually meaningless. and the Constitution itself practically a bank check of power.
Such an "interpretation" of the "commerce clause" would also extend the broad nearly unlimited power to every other nation of the world.
Read the clause under article 1 section 8 for yourself:
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
To be quite honest with you I am inclined to agree with the founders who wrote this "clause." in that it extends NO power over things once they have crossed the border or before they have crossed the border but if any power at all it extents only to objects in the ACT of crossing the border.
It is therefore no wonder that when this objection to the constitution was brought up in the ratification debate the same men who wrote it rebuked it as nonsense, on this grounds.
At the end of the day you can just like everyone else choose to disregard that evidence and logic and try to beleive what ever you want, it matter only what you try to DO to others, not what you think in our head. When those misguided and arrogant thoughts of having near unlimited power over everyone leads you to try and impose that power on others then we will have a fight over our rights.
That is in no small respect Constitutional Nullification, and it is as necessary to the preservation of all human liberty as breathing is to human life. It is exactly that act by freemen and their States to reject tyranny and defend their rights, that we must now unfortunately prepare for with regard to the central government.
Hopefully you can understand why, but if you cannot, as I said that matters not until you cross the line with actions, or someone else crossed the line on you with actions as destructive to your rights and liberty, as theses actions are to ours.
Scott wrote:
…our food travels across state lines and needs roads to do so. Such was evidently not the case in Madison's day.
Every now and again I run across a saying that actually causes me to feel stupider for having read it. Such is the case with Scott's statements I've italicized above.
They didn't have roads in Madison's day, eh, Scott? That's news to me. We're talking about the same Madison, right? The James Madison who wrote Federalist no. 42. That Madison? I guess they didn't have rivers and bridges either in Madison's day, eh Scott?
Nah, we've got to be talking about two different Madisons here.
P.S. Scott, was it your intention to make yourself out to be as idiotic as Nancy Pelosi, et al? Or was that just purely accidental?
This quest, this search for truth and justice, this agonizing over "Dead Sea Scrolls" is about as fruitful as that of Ponce DeLeons search for the fountain of youth….
There was a moment when common sense was around, when understanding of right and wrong was clear, when respect for a person and his property was unquestioned and when our lives were governed mostly by our conscience and our faith….Those days, for at least our generation, are gone…
So as the email asks: "Now What ?".
Scott:
Regulation did not mean the same then as it does today. One of the key issues in the interpretation of the U.S. Constitution is the definition of the term “regulation”. According to Black’s Law Dictionary (Sixth Edition), a regulation is “a rule or order prescribed for management or government; a regulating principle; a precept.” It is usually understood today as a “rule of order prescribed by superior or competent authority relating to action of those under its control. Regulation is rule or order having force of law….” and a function of a government. But in its original meaning, current at the time the U.S. Constitution was adopted, it included self-regulation, not just regulation by a government. The controversy, which arose soon after adoption, is whether the power to regulate includes, as a “necessary and proper” power (Art. I, Sec. 8, Cl. 18), the power to impose criminal penalties, or only civil penalties. The understanding of Jefferson and Madison, and many others of the Founders, was that it did not. See the Kentucky Resolutions of 1798 ( http://www.constitution.org/cons/kent1798.htm )and the essay “Federal Criminal Powers Limited”. ( http://www.constitution.org/jeffcrim.htm ) However, later generations have departed from that understanding, and, in combination with the “commerce clause” (Art. I, Sec. 8, Cl. 3), ( http://www.constitution.org/constit_.htm#con1.8.3 ) extended federal criminal jurisdiction to anything having a “substantial effect on interstate commerce”, especially after the appointment of compliant judges to the U.S. Supreme Court in 1937. There is also an issue arising from the practice of the U.S. Congress of adopting general legislation and delegating to executive agencies the power to promulgate “regulations” to define the details of such legislation. But, those “details” often amount to substantive law never contemplated by the U.S. Congress, and constitute an unconstitutional delegation of legislative power to an executive department, something forbidden by the U.S. Constitution and a violation of the principle of the separation of powers it enbodies. The reversal of these usurpations is a focus of efforts to return government to compliance with the original intent of the Founders.
Please see also:
http://www.umt.edu/law/faculty/natelson/articles/Commerce%20Clause.pdf
That which is honestly 'purchased' is only as valuable as its price. Then the worth of a thing is limited to what is willingly paid for 'it'.
In this, as in all cases, it all boils down to the passion of anyone to offer balance. Just as that lady holding the 'balance' can only use it while blinded, so today only a few voices cry in the wilderness.
The philosophy involved here has been purposely omitted by those who know its power. Just as religion is the opiate of the people, now it is overdosing on information. And of that, only the approved content greets the general public…
Because this is seen as an academic subject, few will be interested. As has been shown by the popularity of the nonsensical gets the needed attention that important subjects deserve.
Few want to think past anything more than simplistic video games…
In combination, it is found that one attempting to find the real base of these discourses, lacks the will and education in order to do so.
Until, and only when, these issues directly and personally affect the general public, will the populace take note…and even then, any real action is doubtful. Note the lack of interest in what were biting issues in our recent past, now largely ignored. No draft, no worry of goin where they shoot people.
How then would an ideological argument play out? These, they's, would run from it. Just as is being witnessed by the lack of interest in most all of this…not even the possibility of death gets attention.
Only a very few of those involved here are passionate enough to take any real action.
So other than serious personal violation, what does it take for honest motivation?
Must be that few see any future for themselves, so why not enjoy what short time we all have left…Hmmm?
There are several things going on that should be addressed…a treaty to adopt weapons controls through the state department offered by the UN, The Hate Crimes Bill, The Food Safety controls through the FDA, etc.
Absolute control being acquired by the fed have mostly already happened…
So now what?
Time to offer freedom from the end of a gun…?
Scott, good explanation. I take issue with those making a mockery of the constitution…the big picture of what the framers intended is so clear if one wants to see it, semantic jousting shouldn't be a part of the discussion, but alas…