How the Supreme Court Is on the Verge of Delivering Even Greater Power to Corporations
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But to make the right-wing case, Scalia again resorted to legal sophistry and rhetorical trickery. For instance, Scalia’s dissent against the Supreme Court’s narrow endorsement of the Affordable Care Act (based on the government’s taxing authority) pretended that Alexander Hamilton, an arch-Federalist who favored a powerful role for the federal government, would have sided with the law’s opponents regarding their concern about using the Commerce Clause to mandate that people obtain health insurance.
Scalia wrote: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.’” Scalia footnoted Hamilton’s Federalist Paper No. 33.
However, in Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Constitution that grant Congress the power to make laws that are “necessary and proper” for executing its powers and that establish federal law as “the supreme law of the land.”
Hamilton also wasn’t condemning those powers, as Scalia and his friends would have you believe. Hamilton was defending the two clauses by poking fun at the opponents of the Constitution as alarmists who had stirred up opposition to the new governing document by issuing wild-eyed warnings about federal tyranny.
In the cited section of No. 33, Hamilton is saying the two clauses had been unfairly targeted by “virulent invective and petulant declamation.”
It is in that context that Hamilton complains that the two clauses “have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane.”
In other words, Scalia’s dissent did not only apply Hamilton’s comments to the wrong section of the Constitution but reversed their meaning. Hamilton was mocking those who were claiming that these clauses would be “the hideous monster.”
Scalia and the Right also misrepresent the actual “originalist” thinking of the Framers. The drafters of the Constitution decided on a system of checks and balances (primarily devised by James Madison) that required deliberate action but gave the nation’s elected representatives nearly unlimited authority to do what they deemed necessary for the good of the country.
But American right-wingers are no more honest about the Constitution than they are about most other things. Indeed, an objective reading of the Founding era’s history reveals the Framers of the Constitution to have possessed a much more robust view of federal government activism on behalf of American citizens and the country than the modern Right wants you to know.
The Framers of the Constitution, after all, were the Federalists, led by the likes of George Washington, Alexander Hamilton, James Madison (in his earlier incarnation as one of Washington’s protégés) and Gouverneur Morris (who was a key drafter of the famous Preamble). This group, which dominated the Constitutional Convention in 1787, were pragmatic nationalists, devising a system that gave the central government all the necessary powers to make the young, sprawling country succeed.
That’s why the Constitution grants sweeping powers to the federal government to “provide for … the general Welfare” and to enact whatever legislation is deemed “necessary and proper” to achieve that and other goals. The language about the “general Welfare” appears both in the Preamble and in Article I, Section 8, the so-called “enumerated powers.” It is an open-ended concept giving wide discretion to the country’s elected representatives.