There was a time, I believe it was in 2007, when I declared that blogospoheric dustups like the Kenney-Schoeneman battle over constitutionality could not happen while I was away from the blogosphere. Then again, nobody listened to me then either. So while Comcast was trying to figure out what went wrong, all hell breaks loose in Bearing Drift.
After making my way through both posts, and a slew of comments on either side, I have come to conclude that both men are, well, half-right. Shaun (a good friend of mine with whom I seldom disagree) has his heart in the right place, but his First Party history is a little off (as it turns out, nearly all disagreements we do have are in some way linked to the First Party period). Brian, by contrast, gets a whole lot of the present wrong along with one glaring error about the past, an error with distracts from his main argument on constutionality, which is more sound than even he argues.
We must remember that many Framers – including the all-important Hamilton, Madison, and Washington – served in the central government right after the Constitution was ratified. As such, their actions should carry great weight as to what the document allows, since they were instrumental in writing and ratifying it (this especially relates to Madison and Hamilton).
For starters, the notion of the central government paying and overseeing pensions began in the Congress’ first year – 1789, when Federal Hall created a national pension for Revolutionary War veterans. From that point forward, the idea that the Constitution prevented a group of people from receiving a national entitlement was doomed – and in fact opponents of such plan relied on philosophical arguments rather than legal ones. As for getting the money in the first place (the payroll tax), while most focus on the 16th Amendment, the fact is that taxes on wages were always considered constitutional. Amendment XVI focused on the source of income in order to invalidate previous legal decisions that declared taxes on interest, investment, and rent income beyond the central government’s power to tax.
As for things like the Department of Education, which is basically a nexus for taxpayer funds to be redirected to state education systems, one can look to the 1791 debt assumption as precedent enough – an action whose constitutional muster was never challenged even by its Madisonian opponents. Madison himself set the precedent for the central government attaching strings to its money when he fought for a provision that spared his home state some of the financial brunt of the assumption. Congress has been attaching conditions on money to the states ever since.
The final problem with Shaun’s argument comes from the interstate commerce issue, which was actually put to rest in Gibbons v. Ogden, when Marshall put the kibosh on New York’s attempt to regulate New Jersey’s steamboat industry.
That said, Gibbons gives me the opportunity to segue from Shaun’s error to Brian’s. Contrary to what many would believe (and sadly, are taught), Marshall’s court did not establish judicial supremacy regarding constitutional matters. Indeed, what nearly everyone seems to forget (in some cases, by design) is that in the famous Marbury v. Madison, the Marshall Court limited its own power by rejecting authority Congress had granted to the judicial branch. If anything, Marshall established that the judicial branch had authority over its own powers. Future major decisions (Gibbons included) largely blocked states from encroaching on national authority. The idea that the juidicial branch would have special constitutional authority within the national government was never established.
In fact, Marshall himself experienced the weakness of his branch on that score when he attempted to invalidate attempts to expel the “Five Civilized Tribes” in the 1830s. President Andrew Jackson privately dared Marshall to enforce the decision, and publicly expounded that each branch was of equal standing in determining constitutionality. Marshall, as far as I know, never rebuked Jackson or his defenders for that position (although Jackson’s Whig critics did, and loudly).
The notion that the Court was the final arbiter of constitutional matters did not become fashionable until the late 1850s, when Southern Democrats tried to pre-sell (and then hard-sell) the odious Dred Scott decision, a cacaphony of factual and historical errors in which the Court attempted to invalidate all African-American citizens (of which there were thousands in New England and New York at least), vacate a law already repealed by Congress three years earlier (the Missouri Compromise) and effectively declare parts of the Constitution itself unconstitutional (the clauses that explicitly gave Congress the power to deal with slavery after 1808).
Just in case that fiasco, in and of itself, isn’t enough to question thewisdom of judicial supremacy, keep in mind that the Court has declared itself in error within a timespan less than an average lifetime (Brown v. Board of Ed which wiped out Plessy v. Ferguson), and justices have announced that their own decisions were mistaken (in 1986, then-Chief Justice Warren Burger renounced his 1973 vote in favor of Roe v. Wade).
The reality is that the judicial branch has always been as political as the other two (again, the capital-F Federalist in me remembers when it was the only sympathetic branch in the Jefferson era), and it should be treated as such. Indeed, the Constitution grants Congress the power to bar the Court from dealing with any particular issue – should Obamacare go down, as I think it should, look for Democrats to suddenly rediscover this clause. I would humbly submit to Brian that the First Congress is a better foundation for his argument than the Court, but that’s just me.
However, when it comes to the present, Brian is way off base. He makes the same mistake that many make about the tea-brewers (my term): that they are largely homogenous in thought and action. In fact, they are a mass of masses, a group of groups, a swath of the electorate without any leader in the usual sense. The closest thing to a leader – the Tea Party Express – exploded its claim to leadership when it endorsed Walter Minnick for Congress.
From my experience with the Teabrewers, their main constitutional objections are aimed at Obamacare, the one area where Brian, Shaun, and I all agree. The rest are policy matters, not legal ones. In fact, many of them would side with Brian and against Shaun on the matter of military affairs (in which case, it would not be the First Congress, but Jefferson’s war against the Barbary Pirates – with Madison firmly at his side as Secretary of State – that sets the precedent).
So, sadly, and as much as we’d like to think otherwise, bad doesn’t automatically equal unconstitutional (sorry, Shaun). In fact, one painful truth we all must acknowledge is that the Constitution itself does not provide the automatic protection against overarching government that many believe it does – this is where the views of John Randolph and Nathaniel Macon have tremendous import.
However, populist doesn’t automatically equal bad and ignorant (sorry, Brian). After all, it was one of the founders of modern anglo-conservatism (Edmund Burke) who noted the need for tradition, culture, and custom in preserving liberty – all defended and advanced more by the masses than by the elites (which, in Burke’s time, usually tried to carve out exemptions for themselves). This was particularly evident in the Second Party system, in which both parties staked their claims to power on the wisdom of the masses rather than the elitism which sank the Federalists.
More to the point, both Shaun and Brian will need each other and the likeminded folks for whom each speaks if the excesses of the Obama Administration are ever to be reversed – but I suspect they know that already.
My long wind is out of air. Time for the “sorry DJ” comments. 
Posted by D.J. McGuire 
