His opening paragraph:
One of the best statements of how the Framers saw the role of the federal government is found in Federalist Paper 45, written by James Madison, who is known as the "Father of the Constitution": "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. ... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people." Today's reality is the polar opposite of that vision. The powers of the federal government are numerous and indefinite, and those of state governments are few and defined.A bit later, he illustrates how the Madisonian view of government thundered down through subsequent decades:
Was Madison misinformed or just plain ignorant about the powers delegated to Congress? Before we answer, let's examine statements of other possibly "misinformed" Americans. In 1796, on the floor of the House of Representatives, William Giles of Virginia condemned a relief measure for fire victims, saying the purpose and the right of Congress is to attend to not what generosity and humanity require but instead what their duty requires. In 1854, President Franklin Pierce vetoed a bill intended to help the mentally ill, writing to the Senate, "I can not find any authority in the Constitution for making the Federal Government the great almoner of public charity." He added that to approve such spending would "be contrary to the letter and spirit of the Constitution and subversive of the whole theory upon which the Union of these States is founded." President Grover Cleveland out-vetoed his predecessors by vetoing 584 acts of Congress, including many congressional spending bills, during his two terms as president in the late 1800s. His often-given veto message was, "I can find no warrant for such an appropriation in the Constitution." By the way, President Cleveland was a Democrat.And this next matter - the general welfare clause - was one of those founding-document concepts that came up in the nasty Facebook exchange I give an account of in the post immediately below (along with the Declaration's mention of the right to pursue happiness). Thank you, Dr. Williams (and President Madison), for setting the record straight:
I found a constitutional loophole that many congressmen use as a blank check, as well as justification to control most aspects of our lives -- namely, the general welfare clause. The Constitution's preamble contains the phrase "promote the general Welfare," and Article 1, Section 8 contains the phrase "provide for the common Defence and general Welfare of the United States." What did the Framers mean by "general Welfare"? In 1817, Thomas Jefferson wrote, "Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated." Madison wrote: "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."No wonder the freedom-haters are so terrified of originalism.
Terrified of originalism? Well, there wouldn't have been a Brown v Board of Education ruling in favor of integration in that case. Wouldn't that have been a shame?
ReplyDeleteHow does that go agains the grain of originalism?
ReplyDeleteAnd even if it did - the onus being on you to prove so - it does not diminish the assertion here that modern-day freedom-haters are terrified of it.
ReplyDeleteGoogle it. Adherence to the original meaning of the 14th Amandment would have killed it. Stick that up your onus which is now on: you.
ReplyDeletehttps://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1086&context=lr
ReplyDeleteCONCLUSION
Professor McConnell is right that Brown v. Board of Education can be justified on originalist grounds, but he errs in relying too heavily on the post-1868, post-enactment legislative history. He shows that Congress almost used its power under § 5 to enforce the Fourteenth Amendment to ban racial segregation in public schools,756 but he does not explain how the Congress that almost voted for that outcome might have thought that the text of the Fourteenth Amendment allowed it to reach that outcome. We have offered a theory here, which Professor McConnell has overlooked, which is that a child’s access to a free and common public school education was in 1868 a privilege or immunity of state citizenship, which no state could constitutionally abridge on the basis of race. There was in short an Article V consensus of three-quarters of the states that so concluded in 1868.
Sentiment on public school education and race may well have shifted between 1868 and the debates in the 1870s leading up to the Civil Rights Act of 1875, since public attitudes on voting rights for African-Americans did shift during that period of time.757 It is thus very important to look closely at the evidence of the original textual meaning of the Fourteenth Amendment on July 9, 1868, rather than in 1875. We focus on the state constitutional provisions regarding public school education that were actually in effect on July 9, 1868. We conclude from this that there was a fundamental civil right to a public school education in 1868, that right was a privilege or immunity of state citizenship, and the Fourteenth Amendment protected such rights from abridgement on account of race.
An Article V consensus of three-quarters of the states in 1868 recognized the right to a public school education by including mandatory language granting that right to the effect that states “shall” i.e. they “must” provide a free public school education.758 More significantly in 1868, not a single state required segregated public schools,759 and at least two southern states that had passed constitutions in 1868 to appease the Reconstruction Congress explicitly prohibited racially segregated public schools in their state
ReplyDeleteconstitutions.760 And only one state in 1868 explicitly permitted segregated schools in its constitution.761
Between 1868 and 1954 eleven new states entered the Union raising the total number of states from thirty-seven in 1868 to forty- eight in 1954.762 All eleven of these new states also recognized a child’s fundamental civil right to a free public school education in their respective state constitutions.763 From 1868 through 1954, the right to a public school education was at all times a fundamental right protected by an Article V consensus of three-quarters of the states and by the Fourteenth Amendment.764
Beginning in 1870, however, several states began including clauses in their state constitutions that required racially segregated public schools. By 1954, fifteen state constitutions had evolved, matured, or rotted to the point that they had come to require racially segregated public schools.765 This evolution in state constitutional law is striking because with fifteen states requiring racially segregated public schools, there was no longer an Article V consensus that three-quarters of the states recognized the right to a desegregated public school education whereas there had been such a consensus on July 9, 1868.
Professor McConnell explains that the opinion in Brown v. Board of Education is widely viewed by scholars today as the result of a “constitutional revolution,”766 which among other things delivered a knockout punch to originalism in constitutional interpretation. We agree with Professor McConnell that to the contrary Brown v. Board of Education is ironically correct as a matter of original meaning but more dubious as a matter of evolved constitutional meaning in 1954. We think we have found the textual and historical argument as to original meaning that supports Professor McConnell’s persuasive account from the post-enactment legislative history of the Fourteenth Amendment in 1875.
Brown v.Board of Education was right on July 9, 1868; it was right on May 17, 1954; and it will remain right for all time.
And that is the extent to which I'm going to take the bait on the attempt to hijach this comment thread and get it to digress into a pissing match over Brown v Board of Education.
ReplyDeleteBait? Go blog yourself then.
ReplyDelete