Kagan vs. Madison

From the LA Times coverage of the Elena Kagan hearings:

“Can you name for me any economic activity that the federal government cannot regulate under the commerce clause?” asked Sen. John Cornyn (R- Texas).

“I wouldn’t try to,” Kagan replied, emphasizing that the court has long said lawmakers have broad powers to regulate economic activity.

From Federalist Paper No. 45 by James Madison:

The powers delegated by the proposed Constitution to the federal government are few and defined.

James Madison is given credit as the principal author of the Constitution and the Bill of Rights. Correctly though, Madison maintained that the Constitution was the work of “many heads and many hands.” Initially, Madison was opposed to a bill of rights. Why? He observed—consistent with what he wrote in the Federalist Papers–that a bill of rights was unnecessary since no protection was needed against powers that were never granted and that importantly a bill of rights was potentially dangerous since enumeration of some rights might be taken by later generations to imply the absence of rights that were never listed.

Madison began to alter his opposition to the Bill of Rights after it became clear that strong opposition by Thomas Jefferson and others might make ratification of the Constitution impossible without a bill of rights. Gradually, and not just for political expediency, Madison became a supporter of a bill of rights.

Speaking to the House of Representatives in support of what would become the Ninth Amendment to the Constitution, Madison laid out the objections of those still opposed: “It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.”

Madison’s solution to those objections was the Ninth Amendment. In historical context, the simple language of the Ninth Amendment is clear:  “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

It is hard to read Madison without coming away with what law professor Randy Barnett calls the “presumption of liberty.” In his book James Madison and the Struggle for the Bill of Rights, Richard Labunski writes of Madison “that no other person in the nation’s history did so much for which he is appreciated so little.” Appreciated so little, indeed! And while history has not ignored Madison, by and by the judiciary has ignored his Ninth Amendment as well as his understanding that the Constitution granted only few and defined powers to the federal government.

Bailouts for financial institutions? Clearly unconstitutional. Subsidies for ethanol and corn farmers? Clearly unconstitutional. Limits on liability for dangerous, offshore oil drilling and nuclear power? Clearly unconstitutional.

Of course, I could go on. And in reality, the judiciary is not the problem. They only reflect the hearts and minds of the American people, who are ignorant of and no longer value our great founding principles. The Elena Kagan’s of the world are a reflection of our values and not the cause of our current federal leviathan. The analysis in this piece would be considered irrelevant by most Americans. We are the problem and we are the solution.


2 Responses to Kagan vs. Madison

  1. chris claypoole says:

    It’s said, quite accurately, that people tend to get the government they deserve. I resent that you and I will also get the government they deserve. As H.L. Mencken observed, “Democracy is the idea that the people know what they want, and deserve to get it, good and hard.”

  2. James D. says:

    I am constantly amazed that a nation that was founded on the concept of freedom seems so willing to give that freedom up. And not just to surrender it, but to willingly trade it for the chains of government. I find it hard to believe that anyone in the US had read the Constitution, because if they had they’d be appalled at the mess we’ve created. Our founders understood from their own experience that government ends up serving only itself, sucking as much as possible into itself. Whether the nobly-born aristocrats of the 17th and 18th centuries or the elected and appointed bureaucrats of the 20th and 21st, its the same problem.

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