Wednesday, September 23, 2015

No. Sorry. You're Not a 'Constitutional Conservative'

The Constitution does not mean whatever you wish it to mean.  `Strict construction' does not yield a solution - because no strict command can be found in words like "equal protection" or "due process of law".  Even Antonin Scalia under pressure retreated to "original public meaning", admitting that the words alone don't suffice.
Today's conservative view is that weak federal government is what the constitution requires.   But as Josh Marshall (a trained historian) explains below  Alexander Hamilton and James Madison saw weak states as the problem and designed a strong federal government - while mollifying critics with reassuring rhetoric in the op-ed pieces now known as the Federalist Papers.
I first grasped this not in grad school or law school but twenty years later when I read James Madison's Notes of the Constituional Convention 1787.  It is plain there that Madison sought a strong national government.  Hamilton then devised the key strategy for building that government: adopting the revolutionary war debts of the states and promising full payment to those who held the unpaid notes.  National debt thus bound the moneyed classes to the new federal government - as it does today.  If you have an FHA-insured mortgage, savings in US Treasury bonds, an FDIC-insured savings account, Social Security benefits, or Medicare you are similarly bound to a strong federal government. The government's obligations are to its citizens.  If you want those guarantees you need a strong, not an emaciated, revenue starved government. - gwc
No. Sorry. You're Not a 'Constitutional Conservative'
by Josh Marshall // Talking Points Memo

***[James Madison and Alexander Hamilton's] central belief was that localism and a weak national government would prevent the United States from ever achieving greatness among the states of the world and condemn it to being the plaything or pawn of the great powers of the day. State governments, far from being the anchors or liberty or legitimacy, were obstacles to progress on almost every front. And a central aim of the constitutional project was, again, to bring the states to heel.

To be clear, it's not that Hamilton and Madison were liberals by any reasonable modern definition. In fact, in the final years of his life, Hamilton made what was probably the first effort in American history to create a political party based on the defense of Christianity - in addition to the Constitution. But in trying to create a strong state - stronger in key ways than many of us today would like - they were the polar opposites of today's Tea Partiers.

In fact, it gets even worse.

One of Hamilton's (and at least very early on Madison's) core ideas was to use a national debt (and a central bank) to bind the men of wealth to the embryonic state. This was the thought behind Hamilton's ingenious logic to have the federal government assume the revolutionary debts of the states. Not only was this a necessary inducement to get the states to ratify the Constitution. It was, as Hamilton realized, a positive good in itself.

By investing the country's elites, the men of wealth as they were then called, in the future of the federal state (both literally and metaphorically), they could ensure its survival and growth. The wealthy and powerful wouldn't conspire against the state if they were the beneficiaries of the state's debt obligations. Both men looked to the example of Great Britain and how it had used its national debt to create the first modern fiscal state - with an ability to borrow, tax and spend in ways that no other state of the day could.

The brilliance of the effort was that they realized that creating a strong state required strong protections to harness and contain the state's power. That's where Hamilton needed Madison because it was a concern the former was not nearly as sensitive to as the latter. But it was almost entirely - and rightly - the rights of individuals that he was concerned with. The ratification process also played a key role here - in pushing for an explicit list of protections. It was a push that Madison fully embraced and one to which the moderate anti-Federalists and their intellectual descendants can point to show they ended up playing a key, formative role in the process.

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