Founding Fathers, Founding Villains: The New Liberal Originalism
September 28, 2012
As soon as there was a Constitution, fights about its meaning began. In 1792 Fisher Ames, representing the first district of Massachusetts in the first U.S. House of Representatives, complained about a tendency of Congress:
We hear, incessantly, from the old foes of the Constitution, ‘this is unconstitutional, and that is;’ and indeed, what is not? . . . If the Constitution is what they affect to think it, their former opposition to such a nonentity was improper. I wish they would administer it a little more in conformity to their first creed.Ames was ridiculing the minority in Congress for having abandoned a position he considered idiotic—they’d claimed during the ratification debates that the Constitution made Congress a tyranny—for an equally idiotic contrary: now they claimed the same document limited federal power so strictly that Congress couldn’t do anything. “Antis,” Ames called them, short for “antifederalists.” He saw them as a “party of ‘no,’” to use a current phrase, and their constant appeals to constitutional restraints as spurious. It was rank antifederalism by other means.
Some students of the period wouldn’t agree with Ames. The Constitution, amended after ratification, wasn’t, in fact, the same document that the antifederalists had feared was tyrannical. Yet while the amendments can seem paramount to us—they’re what many people today seem to mean when they refer to the Constitution—the minority in the first Congress rarely resorted to them. James Madison, chief author of the Bill of Rights, was at the time still committed to federal sovereignty, and where antifederalists had hoped for amendments preserving state rights, Madison was careful to focus the amendments, as much as he could, on individual rights instead.
So to oppose federal activism, the minority in the first Congress looked to the Constitution’s main body. Nowhere, they said, did it empower the Congress to pursue big projects that the majority, associated with President Washington’s administration, believed were critical to establishing American nationhood. In the debate over forming a central bank—a favorite project of the first treasury secretary, Alexander Hamilton—Madison himself began questioning the powerful, wide-ranging national authority that he, Hamilton, and others had recently tried to build into the federal government. Soon Madison was leading his former antifederalist opponents in condemning the bank as unconstitutional. Congress’s power to create one, he said, is not enumerated in the document.
Hamilton, speaking in Congress through Ames and other allies, responded with an argument enshrined today as an elemental principle in an elemental dispute. While there is no explicit provision in the Constitution empowering Congress to charter a bank, the powers explicitly granted—in this case to borrow, tax, and coin money—naturally imply other, un-enumerated powers “necessary and proper” to exercising the enumerated ones. Otherwise government would be not limited but paralyzed, Hamilton believed, and, absurdly so, by government itself.
Madison had believed the same thing only months earlier. In the amendments debate he’d said, “There must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae.” But now he feared where Hamilton was taking the doctrine. Madison, Jefferson, and others began full-scale resistance, based on what they claimed was a strict and literal reading of the Constitution.
To many conservatives, it’s axiomatic that there are no unenumerated powers, but many unenumerated restraints.
Hence a banal dichotomy that has long marked the relationship between our day-to-day politics and our founding history. Modern liberals, drawing on Hamilton’s more expansive reading, have traditionally appealed to a living Constitution. They see the necessary-and-proper clause, the reference to the nation’s general welfare, the power to regulate interstate commerce, and the post–Civil War amendments as supporting the big, federal social programs of the twentieth century and protecting rights that were at one time not enforceable by invoking the Constitution, such as the right to early-term abortion and the right to nondiscrimination on the basis of race in buying goods and services. Conservatives have traditionally appealed to the narrower reading that Madison put forth when opposing the bank. They prefer the founders’ Constitution to the later amendments, argue for strictly literal readings of all amendments, cite the Tenth Amendment reserving for the states or the people all powers not granted the federal government, and criticize any federal policy relying on a power or protection not explicitly set out in the document.
The dichotomy rang loudly in conservative Supreme Court judges’ review of the Affordable Care Act. Regarding the act’s provision compelling citizens to purchase health insurance or pay a penalty, Justice Anthony Kennedy asked where the limits to the commerce clause lay. If a law doesn’t possess, within its own mechanisms, a way of limiting its effect to the case it addresses, it might unleash an infinite lawmaking power, the definition of tyranny, destructive of liberties that the Constitution is meant to protect. Less abstractly, Justice Antonin Scalia asked hypothetically whether the federal government might now compel a citizen to buy broccoli.
Conservatives of various kinds have long believed that the Constitution was intended first and foremost to do two interrelated things: limit Congress’s power to regulate society; and promote individual liberty over social equality. Liberals have long had to argue against—have even, Fisher Ames–like, mocked as a disingenuous idiocy—the philosophy that some on both sides call “originalism.”…