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July 4, 2011

CEREBRATING THE CONSTITUTION – JULY 4, 2011

by profbartling1

The 1987 bicentennial year of the adoption of the Constitution my wife and I  while on sabbatical at the University of  Wisconsin attended a seminar titled: Cerebrating the Constitution. Each week a nationally renowned scholar addressed a topic regarding the history of or important questions regarding the Constitution. This past week the news media have involved significantly in Cerebrating the Constitution (intellectual discussion).

Commentators on last week’s NPR Washington Week in Review noted that Michele Bachman, congresswoman from Minnesota, is neck in neck with Mitt Romney in  GOP presidential candidate favorable ratings. It noted Bachman stated the framers of the Constitution were “Constitutional conservatives”.  This is in keeping with Tea Party  ideology, no taxes and minimal Federal Government. One  commentator asserted Bachman was “a candidate of summertime – of the moment candidate – (and) stopped Pelosi in her tracks”  Whether she is a viable presidential candidate remains to be seen – perhaps,  dismissed too cavalierly.

Exception should be taken to the Tea Party position that the Founders of the Constitution were “Constitutional Conservatives”.  There is an element of truth in this assertion but is deficient in broader terms. What follows was my effort in 1972, a few years before the bicentennial of American Independence,   to address the nature of the Constitution as originally ordered and its subsequent development in American History.  Qualifying Examinations for the doctorate included among other stipulations writing five essays to questions submitted by the Graduate Faculty.  One such question posed instructed: “Analyse the conflict between state’s rights and a strong central government in American history from the adoption of the Constitution to busing”.    Portions of that paper follow that deal primarily with the powers of the central government in origin and subsequent growth in power in  American history . This clearly illustrates the Tea Party has a mistaken take on the position of the Founders of the Constitution regarding the Federal government’s taxing power and the role of the Federal Government in American life and politics.

“The Founding Fathers revolted against the principle of  “imperium in imperio” (state within a state), yet, scarcely had independence been won than the new nation was plagued by that very concept. Could a middle ground between state independence, and federal control be found?  The Constitutional Convention was called by a consensus of opinion to establish a stronger central government.

Our government, then, is federal in form — a constitutional system in which two authorities exist in the same territory and among the same people. The  federal government receives in the Constitution delegated, or enumerated powers, implied and inherent, as well as powers held concurrently with the states. All other powers, according top the Tenth Amendment are “reserved to the states respectively, or to the people”. Each is pre-eminent in its own domain, but not that of the other. Federalism must, therefore, control itself. The Fifth Amendment protects individual rights; the Fourteenth controls the states. The Supreme Court, with the principle of judicial review “Marbury v. Madison, 1803″, in Wilson’s words, is ‘the balance-wheel of our entire system”.

The Constitution its framers believed, corrected the disabling weaknesses in effective government. The powers of the national government were enumerated, yet were “undefined” and “indefinite”, however, no line delineated national power in the interests of the states. Finally, to allay the fears of the anti-federalists who were convinced that the Constitution would establish a “consolidated system”, threatening states’ and individual rights, the first Congress proposed and the states ratified, the Ten Amendments known as the Bill of Rights.  A favorable compromise between states’ rights and a strong central government had, seemingly, been achieved.”

From the very beginning to the Tea Party today there were differences of  opinion as to the authority of the new federalist government.  Be that as it may the scope of federal authority has been ultimately sure and cumulative.  Instrumental in the growth of Federal power was the Hamiltonian program as well as that of Chief Justice John Marshall. A few words regarding each were addressed in my paper.

“Hamiltonian Federalists argued for a strong central government by the use of powers not specifically authorized under its enumerated powers. Hamilton justified such measures by suggesting the use of a protective tariff, a bank of the United States — none of which were specifically enumerated as a government power in the Constitution. The federal government Hamilton insisted, had implied as well as expressed powers.

Marshall condemned strict construction, acknowledging that the Constitution nowhere authorized a national bank. A United States Bank was useful, and he reasoned that congress was sovereign in its own sphere of power. The Constitution was not a compact of sovereign states but was ‘ordained and established in the name of he people’ —  the ‘necessary – and –  proper clause’ gave Congress the choice to carry out its enumerated powers into law . . . Let there end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate . . .  are constitutional.'”

The Startribunes’ Opinion Exchange (7-3-2011) presented an op.ed. by Dane Smith: THE FOUNDING FEDERALISTS.  He observes that  Hamilton and his mentor Washington pushed for “unquestioned federal authority to tax .  .  . Plenty solid scholarship refutes the modern breed of antigovernment “originalists ”  who claim the exclusive blessing of the long-dead framers of the Constitution . . .  The more far-sighted American founders wanted the strong effective and united national government we ended up with . . . these framers – known as Federalists – had to defeat opponents who were called anti-Federalists, and who essentially were saying no to new taxes.”

The Federal Government showed its resolve to have its laws enforced  in the first presidential term of Washington. The so-called Whiskey Rebellion  broke out in Pennsylvania west of the Alleghenies. Led by Scotch-Irish farmers rioting  ensued against Hamilton’s excise tax of 1791. Whiskey was an economic commodity. Farmers considered a tax on whiskey as descriminating against their liberty and economic welfare. Troops called out by President Washington soon quelled the rioting and rebellion.

The current issue of Time presents The Tenth Annual History Issue for Independence Day observance. The article discusses “The Constitution in constant crisis since 1787”.  The article suggests that the current constitutional debate is not a crises but rather a conflict.  “A New Focus on the Constitution is at the center of our political stage with the rise of the Tea party and its almost fanatical focus on the founding document . . . As a counterpoint  to the rise of constitutional originalists  . .  .  liberal scholars find the elasticity they believe the framers intended. ”   The article  discusses the current debate in terms of strict versus broad interpretation. Current constitutional issues discussed are Libya and presidential and congressional war making power,  the debt ceiling, Obamacare, and immigration.  The article concludes: “the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws . . . a promissory note, , one in which “We the People” in  each generation try to create a more perfect union.”  Wishing all  our fellow citizens the blessings of liberty, justice, and freedom today, July 4th, 2011 as we CEREBRATE THE CONSTITUTION.

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