I should have failed civics

When I hear my local “fiscal conservative/social liberal” drive-time radio talk show hosts espouse the belief that the Constitution is malleable and left to be interpreted by the Supreme Court “for the times” and that the meaning of the Constitution changes with precedents set in Supreme Court decisions, I know we messed up somewhere.

It’s true that a lot people believe that. It’s also true that some Supreme Court Justices believe that (while others have not), as well as some constitutional scholars (while others have not) and many people who have served in government.

But, no matter how esteemed those are who believe it, the belief itself does not make it true. In order to prove their belief correct, they would need to produce evidence. Evidence would be specific passages from the Federalists papers or passages from the writings by the authors of the Constitution.

I agreed with the drive time radio hosts long ago in my life and I earned an A in my high school civics class.

But, on further reflection, that belief doesn’t make much sense.

Why separate government power into three branches — executive, law making (congress) and law enforcing (courts), but also give the law enforcing branch (courts) the power to make law (which is the power reserved for Congress)?

That’s the result of allowing courts to broadly “interpret the Constitution for times”.  That doesn’t sound like a power separation to me.

This makes even less sense when you consider the authors of the Constitution put a specific representative process in place to amend the Constitution if need be: Article V: Amendment.

I recommend for anyone who agrees with my local drive time hosts to read this week’s column from Walter Williams, What Our Constitution Permits.  Here’s an excerpt (emphasis added).

You might think, for example, that there’s constitutional authority for Congress to spend for highway construction and bridges. President James Madison on March 3, 1817 vetoed a public works bill saying: “Having considered the bill this day presented to me entitled ‘An act to set apart and pledge certain funds for internal improvements,’ and which sets apart and pledges funds ‘for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,’ I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States and to return it with that objection to the House of Representatives, in which it originated.”

Madison, who is sometimes referred to as the father of our Constitution, added to his veto statement, “The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers.”

Here’s my question to any member of the House who might vote for funds for “constructing roads and canals, and improving the navigation of water courses”: Was Madison just plain constitutionally ignorant or has the Constitution been amended to permit such spending?

I’m adding Walter’s final question above to my list of questions the media should ask political candidates.  They should also ask it of Supreme Court candidates as well.

7 thoughts on “I should have failed civics

  1. You might want to consider the views of Abraham Lincoln on the topic.

    And you might look to how Congress provides funds for highway construction today, compared to how it tried to do so during Madison’s presidency. Then, the funds came out of general revenues (tariffs, mostly). Today, we have a dedicated gasoline tax (commerce clause) from which the road building funds come.

    Also, when Madison was president, we only had 14 states. Today we have 50. Modern highway taxes are considered critical to defense — at least by the Eisenhower administration — because they allow the rapid, coast-to-coast transport of military vehicles and other military supplies. That was not necessary, nor even possible in Madison’s day.

    Do you really believe James Madison would have said we cannot prepare to defend ourselves against another Pearl Harbor? I doubt it.

    • There’s a simple way to give Congress the power to collect taxes and run the interstate highway system — amend the Constitution.

  2. By the way, Madison himself favored such a bill the previous year. Maybe Sowell isn’t telling the whole story (probably because he doesn’t know it).

  3. In 1816 Madison appeared to support the bill for “internal improvements.” There was widespread disappointment when it didn’t pass Congress. Madison suggested that the bill might be counter to the powers of Congress enumerated. In 1817, new Congress, shift in control of the House. By the time Madison left office, Congress had given him a new bill on internal improvements, with careful changes to meet Madison’s objections on constitutional grounds. It had everything in it Madison wanted.

    To everyone’s surprise, including maybe Madison’s, he vetoed it. In the veto message he reiterated his fear that Congress lacked the power. It appears he wanted Congress to propose a Constitutional amendment to authorize such spending clearly, an amendment to the enumerated powers.

    Madison vetoed the bill in early March, President Monroe was inaugurated about three weeks later. I haven’t been able to track it down, but I thin Monroe signed a new bill sent his way.

    Point: Madison wasn’t opposed to spending federal money on building roads. He thought Congress lacked the authority to build national roads.

    Under the current structure, Congress doesn’t build roads, still. Congress gives gasoline tax money earmarked for road building to the states, who do the road building. That probably would have met with Madison’s approval.

    Sowell cites Madison erroneously. Madison was not opposed in any way to spending federal money on building roads. Madison favored it, and he favored it so much that he thought it worth amending the Constitution to do it. Later presidents, and Congresses, and Supreme Courts, found ways to send the money out without amending the Constitution.

    I’m relying much on Ralph Ketcham’s biography of Madison, the standard for Madison research. (See page 608 et seq., on the activities in Madison’s last year in the Executive Mansion — or the substitute Executive Mansion in this case.)


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