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The Fake James Madison: Conservatives Selective Reading Of The Founding Fathers Threatens Social Security And Medicare

The House Republican plan to phase out Medicare is crashing and burning. Rep.-elect Kathy Hochul (D-NY) just won an impossible election victory by campaigning to keep Medicare alive. The Senate just soundly rejected the House GOP’s plan. Even former Speaker of the House Newt Gingrich, who once shut down the government in a failed attempt to force President Bill Clinton to support draconian Medicare cuts, blasted this Medicare-killing plan as “radical right-wing social engineering.”

Yet even as this concerted assault on Medicare hemorrhages support from elected officials, conservatives have a backdoor plan to get the courts to kill Medicare for them. Numerous lawmakers embrace a discredited theory of the Constitution that would not only end Medicare outright but also cause countless other cherished programs to be declared unconstitutional. Under this theory, Pell Grants, federal student loans, food stamps, federal disaster relief, Medicaid, income assistance for the poor, and even Social Security must all be eliminated as offensive to the Constitution.

In essence, supporters of this constitutional theory would so completely rewrite America’s social contract that they make Rep. Paul Ryan (R-WI), the author of the House GOP plan, look like Martin Luther King Jr. This issue brief explores the legal and historical gymnastics required to accept the conservative position that programs like Medicare and Social Security violate the Constitution.

The general welfare

Although Congress’s authority is limited to an itemized list of powers contained in the text of the Constitution itself, these powers are quite sweeping. They include the authority to regulate the national economy, build a national postal system, create comprehensive immigration and intellectual property regulation, maintain a military, and raise and spend money.

This last power, the authority to raise and spend money, is among Congress’s broadest powers. Under the Constitution, national leaders are free to spend money in any way they choose so long as they do so to “provide for the common defense and general welfare of the United States.”  For this reason, laws such as Medicare and Social Security are obviously constitutional because they both raise and spend money to the benefit of all Americans upon their retirement.

Many members of Congress, however, do not believe the Constitution’s words mean what they say they mean. Consider the words of Sen. Rand Paul (R-KY), who recently explained the origin of the increasingly common belief that Congress’s constitutional spending power is so small that it can be drowned in a bathtub:

If you read [James] Madison, Madison will tell you what he thought of the Welfare Clause. He said, “Yeah, there is a General Welfare Clause, but if we meant that you can do anything, why would we have listed the enumerated powers?” Really, the Welfare Clause is bound by the enumerated powers that we gave the federal government.

In essence, Paul and many of his fellow conservatives believe Congress’s power to collect taxes and “provide for the common defense and general welfare of the United States” really only enables Congress to build post offices or fund wars or take other actions expressly authorized by some other part of the Constitution. According to this view, the spending power is not—as it is almost universally understood —itself an independent enumerated power authorizing Congress to spend money.

Paul’s understanding of the Spending Clause is not simply the idiosyncratic view of an outlier senator. Indeed, there is strong reason to believe his view is shared by the majority of his caucus. In the lead-up to the 2010 midterm elections, congressional Republicans released a “Pledge to America,” which broadly outlined their plans for governing if they were to prevail that November.  In it, the lawmakers claimed that “lack of respect for the clear constitutional limits and authorities has allowed Congress to create ineffective and costly programs that add to the massive deficit year after year.”

This language suggests that many conservatives agree with Sen. Paul that Congress is somehow exceeding its constitutional authority to spend money. But there is no support for this view in constitutional text or in Supreme Court precedent.

In its very first decision to consider the issue—its 1936 decision in United States v. Butler—the Supreme Court unanimously affirmed that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution,” as Sen. Paul would claim.  Similarly, while the text of the Constitution establishes that “the exercise of the spending power must be in pursuit of ‘the general welfare,’” neither Sen. Paul nor the Pledge cites examples of laws that fail to meet this criterion.

Selectively reading Madison

While conservatives’ narrow understanding of the spending power finds no support in the text of the Constitution or in the Supreme Court’s decisions, Sen. Paul is correct that it does have one very famous supporter. In an 1831 missive, former President James Madison claimed that the best way to read the Spending Clause is to ignore its literal meaning and impose an extra-textual limit on Congressional power:

With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

Sen. Paul suggests that Madison’s extra-textual limit is both authoritative and binding—even if it means that programs ranging from Social Security to Medicare to Pell Grants must all cease to exist. But it is a mistake to assume that Madison’s preferred construction of the Spending Clause must restrict modern-day congressional action.

First of all, even the most prominent supporters of “originalism”—the belief that the Constitution must be read exactly as it was understood at the time it was written—reject the view that an individual framer’s intentions can change constitutional meaning. As the nation’s leading originalist, Supreme Court Justice Antonin Scalia, explains, “I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.”

Indeed, Madison himself would have been dismayed by the claim that an established understanding of the Constitution must bend to his own singular views. Like Scalia, Madison rejected the notion that the framers’ personal desires can defeat the words they actually committed to text. As he explained to future President Martin Van Buren, “I am aware that the document must speak for itself, and that that intention cannot be substituted for [the intention derived through] the established rules of interpretation.”

Secondly, Madison embraced a way of interpreting the Constitution reminiscent of the evolving theories of constitutional interpretation that are so widely decried by modern conservatives. Although Rep. Madison opposed on constitutional grounds the creation of the First Bank of the United States in 1791, President Madison signed into law an act creating the Second Bank in 1816. He “recognized that Congress, the President, the Supreme Court, and (most important, by failing to use their amending power) the American people had for two decades accepted” the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”

The Constitution is not a scavenger hunt

Even if we must, as Sen. Paul suggests, be bound by the Founding Fathers’ subjective intentions, Madison’s understanding of the Constitution hardly reflects the consensus view among those who created it. The truth is that Madison’s voice was merely one of many competing voices among the founding generation—and his vision of the Constitution was eventually rejected by no less a figure than George Washington himself.

Madison’s chief antagonist in early debates about constitutional meaning was Alexander Hamilton. As the nation’s first secretary of the treasury, Hamilton offered an interpretation of the Spending Clause that closely resembles the modern understanding:

These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

Hamilton’s understanding of the spending power was one part of a broader, more expansive vision of congressional power that also included a robust interpretation of Congress’s power under the Constitution’s Necessary and Proper Clause.  This broader understanding of Congress’s role prevailed over Madison’s very limited one during the earliest days of the Republic. Hamilton was the chief advocate who convinced President George Washington to sign the First Bank bill over Madison’s objections.

The point here is not that constitutional interpretations should be played like the card game “War,” where conservatives play the Madison card and everyone else plays the Washington card, and whoever plays the higher card wins. Rather, the point is simply that conservatives are wrong to treat the Founding Fathers’ statements as if they were a menu that lawmakers can search through and order the kind of Constitution they want. The Constitution is not a scavenger hunt.

Moreover, it is hardly necessary to dismiss Madison’s tremendous contributions to the Constitution itself in order to recognize why America should not relitigate a 230-year-old argument about America’s power to spend money on programs like Medicare.  Hamilton was undoubtedly correct that his own reading of the Spending Clause is more consistent with the Constitution’s text than the reading offered by Madison—Madison himself concedes as much—but Madison was also correct to warn that the nation rejects a longstanding and widely accepted constitutional interpretation at its peril.

Millions of Americans depend upon programs such as Social Security, Medicare, and federal student loans, and America has grown into the wealthiest and most prosperous nation ever to exist in the years since these programs were enacted. Throughout this golden age, not one Supreme Court justice has questioned what Justice Scalia recently told a gathering of members of Congress: “It’s up to Congress how you want to appropriate, basically.”

Conclusion

Few things are certain in American politics, but after this week one thing is crystal clear—the American people cherish Medicare and they want no truck with an agenda that would destroy it. Sadly, far too many conservative lawmakers refuse to listen to their constituents on this basic and obvious point—to the extent of inventing a theory of constitutional interpretation that would achieve their goal of ending Medicare far sooner than the House Republicans’ ill-considered budget.

Conservatives will tell you that killing Medicare is the only way to read the Constitution consistently with the framers’ intent. Don’t believe them. The truth is that the only way to reach this conclusion is to hunt through the framers’ statements, cherry pick statements that conservatives like, and ignore the very text of the Constitution itself in the process.

 

By: Ian Millhiser, Center for American Progress, May 27, 2011

May 27, 2011 Posted by | Congress, Conservatives, Constitution, Democracy, GOP, Government, Government Shut Down, Health Care, Ideologues, Ideology, Lawmakers, Medicare, Politics, Republicans, Right Wing, Supreme Court, Taxes | , , , , , , , , , , , , , , | Leave a comment

The Dangers Of Repealing Birthright Citizenship

People born on American soil are guaranteed automatic citizenship by a provision found in the 14th Amendment to the U.S. Constitution. This provision, often referred to as “birthright citizenship,” has recently come under intense attack by conservative politicians. Conservative lawmakers in state legislatures throughout the country have introduced bills aimed at blocking children born in the state to undocumented immigrants—as well as professional workers and other noncitizens with long-term visas—from claiming a right to citizenship. House Judiciary Committee Chair Lamar Smith (R-TX) has declared his intention to hold hearings on the subject.

Opportunistic politics helps explain the reasoning behind this attack on the citizenship clause of the Constitution. A broken national immigration system coupled with a slow economic recovery characterized by sluggish job growth creates an opening for certain politicians to create short-term electoral gains by demonizing immigrants. Nonetheless, numerous conservative scholars and politicians such as Linda Chavez and James Ho voice grave concerns about the political and policy ramifications of this trend.

A CAP report released this month from CAP Senior Fellow Sam Fulwood III and Director for Immigration Policy Marshall Fitz explains the cascading effect of unforeseen, unintended, and unwanted consequences a retreat on birthright citizenship would set in motion, among them:

  • “Big Brother” in every hospital delivery room, a profoundly costly and intrusive process of checking and verifying documents for every baby born in the United States
  • A new underclass of less-than-citizens who are marginalized from society and detract from our future economic competitiveness
  • Women burdened with childbearing decisions depending on citizenship parentage, endangering the newly born and their mothers in our country
  • An America that is suddenly and deeply anti-immigrant—contrary to our historical heritage and core national values and undermining our cherished democratic system, built by and for immigrants

Nevertheless, the matter is not dead in the eyes of some politicians. On January 25, 2011, Sens. Rand Paul (R-KY) and David Vitter (R-LA) introduced legislation to amend the Constitution and restrict citizenship to those newborns who can prove that one of their parents is a U.S. citizen, a legal immigrant, or an active member of the Armed Forces at the moment of the child’s birth.

The Center for American Progress and the American Constitution Society jointly hosted an event earlier this month featuring leading civil rights thinkers who discussed what our nation would look like should the birthright citizenship provision in the 14th Amendment be repealed, as well as its effect on all Americans.

“It’s important to look at the arguments that people are making to repeal the 14th Amendment,” said Fulwood at the event. “It goes to the core of what it means to be an American.”

Margaret Stock, a professor at the University of Alaska, noted that “The 14th Amendment [was the] crowning achievement of the Republican Party after the civil war. … it’s appalling Republicans have proposed this amendment.”

As President Barack Obama said in his speech in El Paso on May 10:

It doesn’t matter where you come from; it doesn’t matter what you look like; it doesn’t matter what faith you worship. What matters is that you believe in the ideals on which we were founded; that you believe that all of us are created equal, endowed by our Creator with certain inalienable rights. All of us deserve our freedoms and our pursuit of happiness. In embracing America, you can become American. That is what makes this country great. That enriches all of us.

Amending the 14th Amendment to end birthright citizenship would create a very different America, one characterized by dual classes of residents born here—citizens and less-than-citizens.

By: Philippe Nassif, Center for American Progress, May 17, 2011

May 18, 2011 Posted by | Congress, Conservatives, Constitution, Democracy, Elections, Equal Rights, Freedom, GOP, Human Rights, Ideologues, Ideology, Immigrants, Immigration, Lawmakers, Politics, Populism, Republicans, Right Wing, State Legislatures, States, Women | , , , , , , , , , , , | Leave a comment

Ron Paul And The Civil Rights Act Of 1964

Last May, then-candidate Rand Paul’s (R) Senate campaign in Kentucky ran into a little trouble. The self-accredited ophthalmologist explained in newspaper, radio, and television interviews that he disapproved of the Civil Rights Act of 1964, because the private sector should be allowed to do as it pleases. “[T]his,” Paul said at the time, “is the hard part about believing in freedom.”

Asked specifically by Rachel Maddow, “Do you think that a private business has the right to say, ‘We don’t serve black people’?” Paul replied, “Yes.” Seven months later, he won easily.

Almost exactly a year later, Paul’s father, Republican presidential candidate Ron Paul, explained his nearly identical beliefs about the milestone civil rights legislation.

MSNBC’s Chris Matthews asked the Texas congressman, “The ‘64 civil rights bill, do you think an employer, a guy who runs his shop down in Texas or anywhere has a right to say, ‘If you’re black, you don’t come in my store’?” And with that, Paul explained he would have opposed the Civil Rights Act, adding, “I wouldn’t vote against getting rid of the Jim Crow laws.”

Matthews noted, “I once knew a laundromat when I was in the Peace Corps training in Louisiana, in Baker, Louisiana. A laundromat had this sign on it in glaze, ‘whites only on the laundromat, just to use the laundromat machines. This was a local shop saying ‘no blacks allowed.’ You say that should be legal.”

Paul didn’t deny the premise, but instead said, “That’s ancient history. That’s over and done with.”

I’d note in response that this isn’t “ancient” history — millions of Americans are old enough to remember segregation, and millions more are still feeling the effects. For that matter, that era is “over and done with” precisely because of laws like the Civil Rights Act of 1964. The country didn’t just progress by accident; it took brave men and women willing to bend the arc of history.

Let’s also not lose sight of the larger context. In 2011, the United States has a member of Congress and a Republican presidential candidate who publicly expresses his opposition to the Civil Rights Act of 1964. And because we’ve grown inured to GOP extremism, this somehow seems routine.

Indeed, it’s unlikely Paul’s rivals for the Republican presidential nomination will feel the need to condemn his remarks, and probably won’t even be asked about them.

By: Steve Benen, Political Animal, Washington Monthly, May 14, 2011

May 14, 2011 Posted by | Businesses, Constitution, Democracy, Equal Rights, Freedom, GOP, Government, Human Rights, Ideologues, Ideology, Liberatarians, Politics, Republicans, Right Wing, Tea Party | , , , , , , , , , , , , , , | Leave a comment

Lawmakers And Lobbyist: Cutting Out the Middleman

For six years, Doug Stafford was a lobbyist for the National Right to Work Committee, an anti-labor group financed by business and conservative interests. His job changed last year but his duties did not when he became the chief of staff to Senator Rand Paul, Republican of Kentucky. Mr. Paul is a chief sponsor of the National Right to Work Act, which he said would end forced unionization and “break Big Labor’s multibillion-dollar political machine forever.”

Brett Loper’s career path is a similar one. When he was an executive for the Advanced Medical Technology Association, an industry group, he lobbied hard against President Obama’s health care reform. Now, as the chief policy adviser for Speaker John Boehner, he is helping to organize the effort to repeal the health care law. The only difference is that the taxpayers are paying his salary.

There has long been a regular shuttle service between Capitol Hill and Washington’s K Street, but the numbers now are striking. Since last year’s Republican victories, nearly 100 lawmakers have hired former lobbyists as their chiefs of staff or legislative directors, according to data compiled by two watchdog groups, the Center for Responsive Politics and Remapping Debate. That is more than twice as many as in the previous two years.

In that same period, 40 lobbyists have been hired as staff members of Congressional committees and subcommittees, the boiler rooms where legislation is drafted. That again dwarfs the number from the previous two years.

While some of those lobbyist-staffers were hired by Democrats, the vast majority are working for Republicans. Representative Raul Labrador, a freshman from Idaho, hired John Goodwin, previously a lobbyist for the National Rifle Association, as his chief of staff. Representative Fred Upton, chairman of the Energy and Commerce Committee, hired Howard Cohen, a longtime lobbyist for the health care industry, as his chief counsel.

In many cases, those hiring lobbyists were Tea Party candidates who vowed to end business as usual in Washington. As The Washington Post reported, when Ron Johnson ran against Wisconsin’s Senator Russ Feingold, he accused Mr. Feingold of being “on the side of special interests and lobbyists.” Now that he is a senator, Mr. Johnson has hired as his chief of staff Donald Kent, whose firms have lobbied for casinos, defense industries and homeland security companies.

Ethics laws put limits on elected officials who move to lobbying firms. But there is nothing to stop lobbyists from getting immediately hired on Capitol Hill. This year’s class of staffers argues for a tough ban. After collecting millions from industries or unions or others, lobbyists should not be allowed to turn around and write laws that favor these special interests.

By: Editorial, Opinion Pages, The New York Times, April 2, 2011

April 3, 2011 Posted by | Big Business, Congress, Conservatives, Corporations, Democracy, Democrats, GOP, Labor, Lawmakers, Lobbyists, Politics, Republicans, Teaparty, Union Busting, Unions | , , , , , , , , , , | Leave a comment

   

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