How Scalia Distorts the Framers

By Robert Parry, Consortium News

05 July 12

ntonin Scalia and the three other right-wing justices who sought to strike down health-care reform cited no less an authority on the Constitution than one of its key Framers, Alexander Hamilton, as supporting their concern about the overreach of Congress in regulating commerce.

In their angry dissent on June 28, the four wrote: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor pro­fane.’” They footnoted Hamilton’s Federalist Paper No. 33.

A portrait of Alexander Hamilton by John Trumbull, 1792.

That sounds pretty authoritative, doesn’t it? Here’s Hamilton, one of the strongest advocates for the Constitution, offering a prescient warning about “Obamacare” from the distant past of 1788.

Except that Scalia and his cohorts are misleading you. In Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Constitution that grant Congress the power to make laws that are “necessary and proper” for executing its powers and that establish federal law as “the supreme law of the land.”

Hamilton also wasn’t condemning those powers, as Scalia and his friends would have you believe. Hamilton was defending the two clauses by poking fun at the Anti-Federalist alarmists who had stirred up opposition to the Constitution with warnings about how it would trample America’s liberties.

In the cited section of No. 33, Hamilton is saying the two clauses had been unfairly targeted by “virulent invective and petulant declamation.”

It is in that context that Hamilton complains that the two clauses “have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane.”

In other words, last week’s dissent from Scalia and the three other right-wingers does not only apply Hamilton’s comments to the wrong section of the Constitution but reverses their meaning. Hamilton was mocking those who were claiming that these clauses would be “the hideous monster.”

Twisting the Framers

It is ironic indeed that Hamilton’s words, countering alarmist warnings from his era’s conservatives, would be distorted by this era’s conservatives to spread new alarms about the powers of the Constitution.

Scalia’s distortion also underscores a larger tendency on the Right to fabricate a false founding narrative that transforms key advocates for a strong central government – the likes of Alexander Hamilton and James Madison – into their opposites, all the better to fit with the Tea Party’s fictional storyline.

Of course, Scalia’s deception would be an easy sell to typical Tea Party advocates, whose certainty about their made-up history would be reinforced as they stand this Independence Day with the Framers, complete with tri-corner hats from costume shops and bright-yellow “Don’t Tread on Me” flags.

Indeed, the Scalia-authored dissent reads more like a Tea Party manifesto than a carefully reasoned legal argument. The dissent sees the Affordable Care Act, which seeks to impose some rationality on America’s chaotic health-insurance system, as a step toward a despotic scheme that would “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

Some Supreme Court watchers even suspect that it may have been Scalia’s intemperate tone that pushed Chief Justice John Roberts from a position of initially rejecting the Affordable Care Act outright as an unconstitutional use of the Commerce Clause to supporting its constitutionality under congressional taxing powers.

The four more liberal justices endorsed the law’s constitutionality under the Commerce Clause but also joined with Roberts on his tax conclusion, thus upholding the law and sending Scalia and his three right-wing cohorts – Anthony Kennedy, Clarence Thomas and Samuel Alito – into a further paroxysm of rage.

What becomes clear in reading the dissent is that not only do the right-wing justices misrepresent the views of the Framers regarding the Commerce Clause, these justices misunderstand a central reality of why the Framers wrote the Constitution in 1787.

The Framers junked the states-rights-oriented Articles of Confederation in favor of the Constitution because they wanted to solve the nation’s problems.

Founding Pragmatists

Led by James Madison and George Washington, the drafters of the Constitution crafted a profoundly pragmatic document, filled not only with political compromises to pull together the 13 squabbling states but looking for practical solutions to address the challenges of a new, sprawling and disparate nation.

The Commerce Clause, which grants Congress the power to regulate interstate commerce, was not some afterthought but rather one of Madison’s most cherished ideas, as Justice Ruth Bader Ginsburg noted in her opinion on behalf of the Court’s four more liberal members.

Citing a 1983 ruling entitled EEOC v. Wyoming, Ginsburg noted that “the Commerce Clause, it is widely acknowledged, ‘was the Framers’ response to the central problem that gave rise to the Constitution itself.’”

That problem was a lack of national coordination on economic strategy, which hindered the country’s development and made the nation more vulnerable to commercial exploitation by European powers, which looked to divide and weaken the newly independent United States.

Ginsburg wrote: “Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable, because the individual States, understandably focused on their own economic interests, often failed to take actions critical to the success of the Nation as a whole.”

The Articles of Confederation, which governed the country from 1777 to 1787, had explicitly asserted the “independence” and “sovereignty” of the 13 individual states, making the central government essentially a supplicant to the states for necessary financial support.

After watching the Continental Army suffer when the states reneged on promised funds, General Washington felt a visceral contempt for the concept of sovereign and independent states. He became a strong supporter of Madison’s idea of a stronger central government, including one with the power to regulate commerce.

In 1785, Madison proposed a Commerce Clause as an amendment to the Articles, with Washington’s strong support.

“We are either a united people, or we are not,” Washington wrote. “If the former, let us, in all matters of a general concern, act as a nation which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”

Alexander Hamilton, who had served as Washington’s chief of staff in the Continental Army, explained the commerce problem this way: “[Often] it would be beneficial to all the states to encourage, or suppress, a particular branch of trade, while it would be detrimental . . . to attempt it without the concurrence of the rest.”

Madison himself wrote, regarding the failings of the Articles, that as a result of the “want of concert in matters where common interest requires it,” the “national dignity, interest, and revenue [have] suffered.”

However, Madison’s commerce amendment failed in the Virginia legislature. That led him to seek an even more radical solution – scrapping the Articles altogether and replacing them with a new structure with a powerful central government whose laws would be supreme and whose powers would extend to coordinating a strategy of national commerce.

Building the Framework

As Madison explained to fellow Virginian Edmund Randolph in a letter of April 8, 1787, as members of the Constitutional Convention were gathering in Philadelphia, what was needed was a “national Government . . . armed with a positive & compleat authority in all cases where uniform measures are necessary.”

On May 29, 1787, the first day of substantive debate at the Constitutional Convention, it fell to Randolph to present Madison’s framework. The Commerce Clause was there from the start.

Madison’s convention notes on Randolph’s presentation recount him saying that “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation – such as a productive impost [or tax] – counteraction of the commercial regulations of other nations – pushing of commerce ad libitum – &c &c.”

In other words, the Founders – at their most “originalist” moment – understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum – &c &c” notation suggests that Randolph provided other examples off the top of his head.

Historian Bill Chapman has summarized Randolph’s point as saying “we needed a government that could co-ordinate commerce in order to compete effectively with other nations.”

So, from the very start of the debate on a new Constitution, Madison and other key Framers recognized that a legitimate role of the U.S. Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic strength and welfare.

This pragmatism imbued Madison’s overall structure even as he included intricate checks and balances to prevent any one branch of government from growing too dominant. The final product also reflected compromises between the large and small states and between Northern and Southern states over slavery, but Madison’s Commerce Clause survived as one of the Constitution’s most important features.

However, the Constitution’s dramatic transfer of power from the states to the central government provoked a furious reaction from supporters of states’ rights. The Articles’ phrasing about state “sovereignty” and “independence” had been removed entirely, replaced with language making federal law supreme.

The Anti-Federalists recognized what had happened. As dissidents from the Pennsylvania delegation wrote: “We dissent … because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government.”

Winning Ratification

As resistance to Madison’s federal power-grab spread – and as states elected delegates to ratifying conventions – Madison feared that his constitutional masterwork would go down to defeat or be subjected to a second convention that might remove important federal powers like the Commerce Clause.

So, Madison – along with Alexander Hamilton and John Jay – began a series of essays, called the Federalist Papers, designed to counter the fierce attacks by the Anti-Federalists against the broad assertion of federal power in the Constitution.

Madison’s strategy was essentially to insist that the drastic changes contained in the Constitution were not all that drastic, an approach he took both as a delegate to the Virginia ratifying convention and in the Federalist Papers. But Madison also touted the advantages of the Constitution and especially the Commerce Clause.

For instance, in Federalist Paper No. 14, Madison envisioned major construction projects under the powers granted by the Commerce Clause.

“[T]he union will be daily facilitated by new improvements,” Madison wrote. “Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.

“The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”

While ignoring Federalist Paper No. 14, today’s right-wingers are fond of noting Madison’s Federalist Paper No. 45, in which he tries to play down how radical a transformation, from state to federal power, he had engineered in the Constitution.

Rather than view this essay in context – Madison finessing the opposition – the modern Right seizes on Madison’s rhetorical efforts to deflect the Anti-Federalist attacks by claiming that some of the Constitution’s federal powers were contained in the Articles of Confederation, albeit in far weaker form.

In Federalist Paper No. 45, entitled “The Alleged Danger From the Powers of the Union to the State Governments Considered,” Madison wrote: “If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.”

Today’s Right also trumpets Madison’s summation, that “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

But the Right generally ignores another part of No. 45, in which Madison writes: “The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.”

In his ruling – joining with his fellow right-wing justices in rejecting the application of the Commerce Clause to the Affordable Care Act – Chief Justice Roberts does mention that line from Federalist Paper No. 45. However, he spins Madison’s meaning into a suggestion that the Commerce Clause should never contribute to any controversy.

Looking to the Future

However, what Madison’s comments about the Commerce Clause actually demonstrated was a core reality about the Framers – that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Constitution as a flexible document designed to meet America’s ever-changing needs, not simply the challenges of the late 18^th Century.

As Hamilton wrote in Federalist Paper No. 34, “we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs.

“Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.”

Indeed, the Commerce Clause was a principal power that Madison crafted to deal with commercial challenges both current to his time and future ones that could not be anticipated by his contemporaries.

There also was a reason why the Framers made the power to regulate interstate commerce unlimited. They wanted to invest in the elected representatives the United States the ability to solve future problems.

In Madison’s day, the nation’s challenges included the need for canals and roads that would move goods to market and enable settlers to travel westward into lands that European powers also coveted. Always a principal concern was how European competition could undermine the hard-won independence of the nation.

Though the Framers could not have envisioned the commercial challenges of the modern world, American businesses remain under intense foreign competition today, in part, because of an inefficient health-care system that imposes on U.S. businesses the cost of health insurance that drives up the price of American goods.

Under the current system, not only do many American businesses pay for their employees’ health care – while most other developed nations pay medical bills through general taxation – but U.S. companies indirectly pick up the cost of the uninsured who get emergency care and don’t pay.

So, a law that makes American businesses more competitive by addressing this “free-rider” problem – and by assuring a healthier work force – would seem to be right down the middle of the Framers’ intent in drafting the Commerce Clause.

No Practicality

In contrasting Justice Ginsburg’s opinion on the Affordable Care Act with Scalia’s dissent, one of the most striking differences is how the Framers are understood: Ginsburg sees them as pragmatic problem-solvers, while Scalia envisions them as rigid ideologues placing individual freedom above practical goals.

The core of the Scalia-written dissent is that the Constitution is NOT about solving problems, but rather following the most crimped interpretation of the words. Indeed, he ridicules Ginsburg for viewing the founding document as implicitly intended to give the elected branches of government the flexibility to address national challenges.

Yet, there was little question from either side that virtually every American participates in the commerce of health care – from birth to death – and that the health-insurance mandate in the Affordable Care Act was intended by Congress to regulate what is clearly a national market.

In the dissent, the four right-wing justices acknowledged that “Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercis­ing the powers accorded to it under the Constitution.

“The question in this case, however, is whether the complex structures and provisions of the … Affordable Care Act … go beyond those powers. We conclude that they do.”

Scalia noted that Ginsburg “treats the Constitution as though it is an enumeration of those problems that the Federal Government can ad­dress — among which, it finds, is ‘the Nation’s course in the economic and social welfare realm,’ … and more specifically ‘the problem of the uninsured.’

“The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce.

“None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-­problem power.”

The right-wing justices insisted that the power to “regulate” commerce couldn’t possibly cover something like a mandate to buy health insurance.

Chief Justice Roberts – in his own opinion, which rejected use of the Commerce Clause but then justified the Affordable Care Act under the Constitution’s taxing powers – decided that some of the definitions of the word “regulate” couldn’t be applied because they were not the first definitions in the dictionaries of the late 18^th Century.

In an earlier opinion upholding the Affordable Care Act, conservative U.S. Appeals Court Judge Laurence Silberman noted that “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’

“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.

However, in Roberts’s ruling, the Chief Justice threw out certain definitions for “regulate” — such as “[t]o order; to command” — saying they were not among the top definitions in the dictionaries of the time. Roberts wrote, “It is unlikely that the Framers had such an obscure meaning in mind when they used the word ‘regulate.’”

Needing Health Care

Scalia and Roberts also adopted a very narrow concept of participation in the health-care industry. Though it’s undeniable that virtually all Americans – from birth to death – receive medical care of various types and at different times, the Court’s five right-wing justices treated the gaps between those events as meaning people are no longer in the health market.

Roberts wrote: “An individual who bought a car two years ago and may buy another in the future is not ‘active in the car market’ in any pertinent sense. The phrase ‘active in the market’ cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to ‘regulate the uninsured as a class.’”

But, as Ginsburg noted in her opinion, this comparison is off-point, because a person can plan for the purchase of a car but often is thrust into the medical industry by an accident or an unexpected illness.

Over and over again, the five right-wing justices behaved as if they started out with a determination to reject a constitutional justification under the Commerce Clause and then dreamt up legal wording to surround their preconceived conclusion.

In doing so, they treated the Constitution as some finicky legal document rather than what the Framers had intended, a vibrant structure for solving national problems.

And, as for the Framers’ views regarding mandating American citizens to buy a private product, one can get a good idea of their attitude by examining the actions of the Second Congress in passing the Militia Acts, which mandated that every white male of military age buy a musket and related supplies.

That Congress included actual Founders, such as James Madison. The law was signed by George Washington, another Founder. [See Consortiumnews.com’s “The Founders’ Musket Mandate.”]

So, despite what today’s Right wants you to believe, the Framers were not hostile to a strong central government; they were not big advocates of states’ rights; they were not impractical ideologues contemplating their navels or insisting on some hair-splitting interpretation of their constitutional phrasing.

Rather, they were pragmatic individuals trying to build a nation. They wrote the Constitution specifically so the country could address its pressing problems – and match up competitively with America’s foreign rivals.

Since Justices Scalia, Kennedy, Thomas and Alito don’t have the real history on their side, they apparently saw little option but to make up their own.

To read more of Robert Parry’s writings, you can now order his last two books, Secrecy & Privilege and Neck Deep, at the discount price of only $16 for both. For details on the special offer, click here.]

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.