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Old 06-21-2008
TSGracchus TSGracchus is offline
Secretary of Defense

 
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Location: San Francisco Bay Area
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Re: What is your view on appropirate Judicial Philosphy?

Here's the problem with originalist judicial philosophy. If one is to interpret the Constitution in the sense intended originally by its framers, one must first ask: which framers?

The Constitution was adopted at a convention of delegates from all the states, and so represents a collection of compromises between competing and conflicting interests, but one may identify two men in particular whose intellectual contributions shaped it more than any others. One of these two men was James Madison (and, through him, Thomas Jefferson, who had no direct impact on the proceedings but many of whose ideas Madison represented). His influence is great enough that he is sometimes referred to as the "father of the Constitution."

But the other man was, in my opinion, even more influential. It was largely at his urging that the convention was called in the first place. He had been calling, as an officer in the Continental Army during the Revolutionary War, as a Congressman under the Articles of Confederation thereafter, and as a private lawyer and assemblyman in the New York legislature after resigning from Congress, for a stronger central government for years. Although his voting power as a delegate to the Constitutional Convention was literally nil (he was outvoted by the other two New York delegates, who consistently disagreed with him, until they resigned in protest, and then could not vote because each state had to have at least two delegates present for their votes to count), his intellectual influence on the final document was huge. He was also the most powerful voice of all in support of the Constitution's ratification by the state of New York, having written the majority of the Federalist Papers.

His influence was far from total. The document as it finally emerged did not include the lifetime presidency or Senate that he wanted (subject to "good behavior"), nor the absolute presidential veto, nor the federal power to appoint state governors. But many of his preferred provisions did become part of the document, and overall it reflected his own stronger-government views more than it did Madison's (and Jefferson's) weaker-government views, although the compromises between the two are easily seen.

His name was Alexander Hamilton. And his philosophy of government was in sharp contrast to that of Madison. So which "original intent" shall we go by?

It's my belief, although I have no direct evidence in support of this, that Hamilton is responsible for much of the vague empowering language in the Constitution, especially in Article I, Section 8, which can be interpreted to give Congress overwhelming powers, indeed much more power than it has so far accrued:

Quote:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;. . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . . To constitute Tribunals inferior to the supreme Court; . . . To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
There are other portions of this section which are more limited in scope, but the language above can be interpreted so as to empower the federal government to do just about anything it wants, subject to the explicit limitations which detail specific things it is NOT allowed to do, e.g. award titles of nobility, pass ex post facto laws, or make laws respecting establishment of religion.

I believe that Hamilton was the genius behind this language because it is hard for me to credit that Madison (or Jefferson) could have been. Absent Hamilton's influence, I am certain that the language entitling Congress to raise and collect taxes would have read something like "to pay the debts and provide for the carrying out of the powers herein enumerated," rather than that broad and all-encompassing authorization to spend any public money needed to "provide for the common defense and general welfare." Nor would Madison, on his own, have approved of an ability to fund a navy without limit, and certainly not an army with a limit that was meaningless, as Congress need only renew the funding every two years. (It actually does so every year, and sometimes more often, for the navy as well as the army.) Nor do I believe Madison would have thought on his own of empowering Congress to "regulate commerce among the several states," but would instead have limited the federal government's power over the economy to coining money, borrowing money, and regulating trade with foreign nations.

This language is subject to a wide range of interpretations, and just because something is allowed by it does not mean this action will automatically be taken. At the time the document was framed, Hamilton had a vision for America's future that was dramatically at odds with Jefferson's. Jefferson wanted an America composed primarily of independent small-scale farmers. Hamilton wanted an industrialized economic powerhouse. Hamilton wanted strong government and a central bank because these would serve to build that industrialized nation and to govern it thereafter; Jefferson did not because he did not want us to go that direction. Hamilton won the debate over the Constitution's language (I believe), but Jefferson's side won the subsequent political struggle, and so the strong-government provisions that Hamilton had built into the Constitution slept in dormancy for years. But eventually Hamilton's vision won out, as the nation did become an industrial powerhouse, and as it did so, the provisions were there in the Constitution allowing for an appropriate structure of government. And that is what we have today, along with some amendments which did have to be passed.

A lot of words, but what they come down to is this: We cannot use the original intent of the framers as our guide when interpreting the Constitution because there was no single original intent. And so some other principle must guide us.

Edit: About the Air Force -- "Congress shall have the power to lay and collect taxes . . . to provide for the common defense . . . of the United States." An Air Force, although neither an Army nor a Navy, strictly speaking, helps provide for the common defense, and is therefore an authorized expense by Congress. There, see how powerful that language is?
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