King Josiah teaches us about rediscovering ancient documents — like the U.S. Constitution

One of my favorite stories in the Old Testament is that of King Josiah in 2 King 22. One of his priests discovered the scriptures in the temple. The words were read to King Josiah, who “rent his clothes.” Josiah realized that the people of Israel had not been paying attention to the word of the Lord, clearly laid out in the scriptures. He then read the words of the Law to the people in an attempt to help them repent and turn back to the Lord, which is what the scriptures told them to do.

This is the amazing thing about going back to source documents — over time, people can lose their way unless they continually refer back to the originals. This is one reason Lehi was told to bring the brass plates to the Americas with him: without the source documents, the people would be lost.

The United States has a source document called the Constitution. Over time, it’s been forgotten and forsaken. Every once in a while something comes along that refers us back to the Constitution, such as Judge Vinson’s decision on Obamacare. I will argue in this post that getting back to the true meaning of the Constitution is something that people of all ideologies should rally around. Overreaching government — which the Constitution was intended to prevent — is just as likely to be used by Big Government conservatives as it is by Big Government liberals. In that case, it is only the Consitution that protects us all.

Liberals who are red in the face right about now — please consider the following scenario. The European debt crisis deepens. In the meantime, there is a massive debt crisis in the U.S. There is worldwide panic, and the economy plunges again just as it did in 2007-2008. Unemployment soars to 15 percent. President Obama’s approval ratings fall to 30 percent. Republicans have problems finding a standard-bearer and Mike Huckabee wins Iowa. He continues to win most other states and becomes the Republican candidate in 2012. Libertarians launch a Ron Paul third party bid, but Huckabee takes the South and most of the Midwest and West. He is the next president of the United States. Meanwhile, Republicans get 58 seats in the Senate and 250 in the House — large majorities. Two Democrats become Republicans — the Republicans have enough votes to overcome a filibuster.

Huckabee tries to rally conservatives by appointing a host of law-and-order types. Right after Huckabee takes office, terrorists attack a large U.S. airport, killing several dozen innocent people. Huckabee is outraged. He says the U.S. needs a much stronger Patriot Act to find domestic enemies. He feels the United States needs a strong popular movement to prepare to fight future wars. This includes an America-first industrial policy and a “Strong Kids Mean a Strong America” policy toward nutrition and exercise. Citing the Commerce Clause, he says the federal government has the authority to fine Americans $20,000 unless they buy cars primarily made in the United States. Also citing the Commerce Clause, he says the government has the power to regulate and control what children eat (“it’s for the good of the children.”) Parents face prison sentences unless they feed only certain, government-approved foods to their kids.

A small group of libertarian Republicans and left-wing Democrats fight against Huckabee’s fascist moves. They say the government does not have the power to force people to buy only Made in USA cars or force kids to eat only certain foods. But they are overwhelmed by the new populism and the opposition to domestic terrorists in the U.S. The new populists say that Obamacare greatly increases the power of the federal government, and these measures are the next logical steps. They bring back the words of Dem. Rep. Pete Stark, who said, “the federal government can do most anything in this country.”

Too far-fetched? Actually, no. This is exactly what Judge Vinson warned us about in his decision overturning Obamacare. Here is a key excerpt from his 78-page decision:

After all, there are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business.

Judge Vinson is exactly correct. Once you begin saying that the federal government has all power, it is difficult to pick and choose between the powers you personally approve of and the powers you don’t. Liberals love the idea of government-mandated health insurance. How about government-mandated guns or government-mandated Bible-reading or government-mandated loyalty oaths?

Here’s a novel idea: how about government sticking to its enumerated powers, which are described right there in the Consitution.

Let’s take a look at the commerce clause. What does it say, and why was it included in the Constitution?

“Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Why was the commerce clause instituted? So that states could do business *with each other* which was not happening under the Articles of Confederation. Justice Marshall in 1824 said the commerce clause *only* had to do with commerce that touched more than one state. Intrastate commerce was not the province of the Consitution, and indeed again the only point of this clause was to make sure that each state was not an island able to set up its own tariffs. In 1905, the Lochner decision make it clear that the federal government did NOT have the power to control commerce in a great many areas because these attempts to control commerce on a national level violated freedom of contract. This view held sway until 1937. A few cases in the late 1930s and the 1942 Wickard v. Filburn case completely changed the interpretation of the commerce clause, and the result has been an ever-expanding *federal* government, helping create our current climate when a majority of congressmen agree that the commerce clause allows the federal government to fine people for not buying a product.

There are plenty of charitable reasons for wanting to help the poor get health care. My purpose in this post is not to re-hash that debate. Instead, I am hoping to convince a few souls that this particular issue — using the federal government to mandate something — is not a road any of us should want to go down. This power could very easily be used in ways that would horrify us all. We need to do what King Josiah did — read the original document and understand and internalize its intent, not read it with the purpose of coming up with ways of getting around the original intent.

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About Geoff B.

Geoff B has had three main careers. Some of them have overlapped. After attending Stanford University (class of 1985), he worked in journalism for several years until about 1992, when he took up his second career in telecommunications sales. In 1995, he took up his favorite and third career as father. Soon thereafter, Heavenly Father hit him over the head with a two-by-four (wielded by the Holy Ghost) and he woke up from a long sleep. Since then, he's been learning a lot about the Gospel. He still has a lot to learn. Geoff's held several Church callings: young men's president, high priest group leader, member of the bishopric, stake director of public affairs, media specialist for church public affairs, high councilman. He tries his best in his callings but usually falls short. Geoff has five children and lives in Colorado.

71 thoughts on “King Josiah teaches us about rediscovering ancient documents — like the U.S. Constitution

  1. Geoff,
    You may want to know that the general scholarly consensus is that the book of the law found by the priests in Josiah’s time is a pious fraud (and that we have it now in the form of the book of Deuteronomy). That the primary purpose of the book was to consolidate ecclesiastical power in the hands of priesthood at Jerusalem and that Josiah was a bit of a dupe for going along with it. Which isn’t to say that your scenario didn’t happen; just that there are other ways of reading the source text.

    I suppose that that was a response to the larger point to. We don’t have to go down every slippery slope.

  2. John C, very interesting. Thanks for that. Do you have any links on that angle or articles on the subject I could read?

    As you note, I am just basing it on reading the Biblical text itself. I think my greater point stands.

  3. Geoff,
    It pretty standard stuff for Biblical Studies. See here, for an article that reads Josiah as a participant in the power, rather than a dupe (how I see it). There are links from there to more online stuff.

    My greater point is that straightforward readings are necessarily the best and that there is more than one way to read a source text. So, I think that stands, too.

  4. Yes, when Josiah stood before the people and (selectively) read the Law, leaving out all the inconvenient bits and embarrassing aspects of the claim to Torah-orignalism, using a particular interpretation to disenfranchise his opponents, ignoring the legal claims that countered his view, weeping in front of the public and using hyperbolic rhetoric and imagined scenarios of doom to pretend to great piety even while presenting a fraud to them, ingoring the great traditions and will of the people (according to real polls not done by his own network of friends), suggesting that adherents to the other Law that he countered were just infiltrators of the Canaanite socialists who were taking over Israel, things then were a lot like they are now. Thanks for the reminder.

  5. Geoff, my difficulty with exclusive originalism is that it assumes that a fixed and ascertainable application of the constitutional text existed at the time it was written, ratified or published. This doesn’t seem true to history. I believe that the founders, ratifiers, and the American public probably disagreed among themselves about the proper meaning or application of the Commerce Clause, for instance, especially if they could have seen our day. The beauty of the constitution is the way in which it establishes general principles with incredible flexibility in the details, and not in the way the text transmits some sort of Platonic truth.

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  7. DCL, my point is not to extol the virtues of exclusive originalism. Words must have some meaning. They cannot mean anything we want them to. For the last 70 years or so, most liberals have believed that more government (justified by the commerce clause) is good and that government forcing virtue is a good thing. My point is that this could easily be turned in a direction that no liberal would like. More government could mean a host of things that liberals (and I) don’t like.

  8. Geoff, have you seen this?

    http://www.newyorker.com/arts/critics/atlarge/2011/01/17/110117crat_atlarge_lepore?currentPage=all

    I found this article fascinating, and it tries to address what I think you are getting at here. What did the constitution mean to Americans at the time it was written? How do we apply the constitution as the basis of our law to new and changing situations?

    Lepore brings out some examples which caused me to think of new things. For instance, one of the signers was dissatisfied because he thought the constitution was too secular. “Four thousand four hundred words and not one of them is God.” Patrick Henry thought there was far too much lawyerese and that the document was inaccessible to the common people. A man from Hew Hampshire saw it as a dangerous power grab and an encroachment on his liberty.

    I was impressed that the conversation in 1790 is pretty much like the conversation in 2011. The government is either too powerful or too weak, and it is doing too much for us or too little. Either God is being banished from the public square or religious people already have too much influence over affairs of state, and so on.

    Based on this article, I question whether there really was a solid consensus as what the constitution meant to the founders, and that has implications for us now if we attempt to uncover or decipher original intent.

  9. Mark Brown, great article, thanks for linking.

    The only problem with the “the Constitution can mean anything to anybody” position is that you have to throw the baby out with the bathwater if you take that position. That is definitely what many people argue when discussing the 2nd Amendment. But what about all that freedom of religion and freedom of speech stuff? Yes, plenty of tea party people say some pretty stupid things, but there are also plenty of leftists who say equally stupid things.

    It seems to me very easy to make the argument that we can all disagree about what the Constitution means and what it meant to various people. But at the end of the day, that seems to back up my greater point, which is: the written word has to mean *something*. Otherwise, we should have judges decide things with great wheels of fortune, and today we can decide one way and tomorrow we can decide the other depending on where the clicker falls on the wheel.

    My argument would be one that I think is pretty much based on common sense by the common man. Words mean something. The commerce clause clearly had one meaning when it was written (and the Federalist Papers back this up). That meaning was changed over time to something else. Changing that meaning may seem wonderful to people who favor Obamacare today. But under different circumstances it would be pretty horrible.

  10. “My point is that this could easily be turned in a direction that no liberal would like.”

    Isn’t that why we have elections?

    A sincere question: What is the difference between fining people who don’t buy health insurance and raising taxes on everyone but offering a tax break to people who buy insurance? Isn’t it basically the same thing? It seems to me that the extension of your logic is that the government cannot use tax policy to influence market forces at all.

  11. Folks, I’m not interested in rehashing the Obamacare debate. There is a simple point here, which I would ask you to think about. If you increase the power of government to mandate something you approve of, could that ever open the door for the government to mandate something you don’t approve of?

  12. Geoff, arguments pointing out the weakness of relying on original intent as your primary constitutional guide are nowhere near saying that the constitution can mean anything to anybody, although that’s a nice straw man you have going. No liberal out there seriously believes that about the constitution and the volumes of Supreme Court jurisprudence out there don’t show many examples of that kind of thinking.

  13. John C. and TT,

    What you are calling the “scholarly consensus” is almost purely conjecture, hypothesized as a way to reconcile perceived contradictions and variations in textual markers between the presumed different sources for the Torah, proceeding from purely materialistic assumptions.

    John C. seems to be using “scholarly consensus” as a proxy for historical fact, and then proceeds to criticize Geoff’s reading with that unfounded assumption.

    Worse, in TT’s first comment he presents this hypothetical as if it were settled and even verified historical fact when he knows that it is not. His Josiah narrative is at best a possible, but unprovable retelling; at worst it is a purely fictional version that purposefully paints Josiah in the worst light while pretending to historical authenticity.

    Not only that, but your documentary hypothesis argument is mostly irrelevant to Geoff’s point. The story, true or fictional, plays a devotional role in the church, and illustrates a true theme that appears repeatedly throughout the scriptures and the history of the church: that of a straying, degenerate people that repents and reforms through the discovery or reapplication of foundational, inspired texts.

    This is a variation of the archetypal story of the restored church. And Geoff’s post draws upon that archetype to advocate a return to the foundational text of our nation, the Constitution. He draws upon these thematic parallels to try to illustrate and apply a true principle.

    The fact that you criticize Geoff’s effort by trying to cast doubt on the historicity of the narrative itself, shows that you don’t even believe your own “Inspired Fiction” theory of scripture. If you did, then Geoff’s derivation of inspired truths from what you consider a fictional account would be perfectly acceptable to you, since that is the only way in which truth can be extracted under the “Inspired Fiction” approach.

    At least Geoff’s reading is consistent.

  14. If you increase the power of government to mandate something you approve of, could that ever open the door for the government to mandate something you don’t approve of?

    This to me is a simple point that has potential consequences that concern me greatly…on either end of the spectrum. I think we see far too much of this already. I call it pendulum politics and I’m bone weary of the dynamic. And it is bad on either ‘side’ of the political spectrum. Whatever the Constitution might be interpreted to mean, I’m pretty sure this kind of dynamic wasn’t what our Founding Fathers envisioned.

  15. JMax,
    Geoff presents this hypothetical as if it were settled and even verified historical fact when he [doesn't] know that it is not. His Josiah narrative is at best a possible, but unprovable retelling; at worst it is a purely fictional version that purposefully paints Josiah['s opponents] in the worst light while pretending to historical authenticity.

  16. TT, my point doesn’t depend on it being historical — I am simply recounting the story as an “introduction” to a larger point, which is that foundational documents are important and that over time people forget such documents unless they constantly refer back to and consult them. If it makes you feel better, you can ignore the offensive King Josiah reference (that darned Bible, always so ahistorical!), and concentrate on the actual point of the post, which is, I repeat, is “if you increase the power of government to mandate something you approve of, could that ever open the door for the government to mandate something you don’t approve of?”

  17. TT,

    Thank you for confirming my point. You have conceded that there is no compelling reason to consider your retelling of the Josiah story as superior to or more accurate than Geoff’s; or (in other words) Geoff’s story is as valid as your story. So your presentation of an alternate reading in this context is merely antagonistic contradiction, not an argument against his point.

  18. Geoff, reasonable people will concede 1) that the constitution is foundational and, 2) that more government power isn’t always an absolute good. But I don’t see how these points are what this post is about.

    Instead you are saying that certain policy preferences, such as a repudiation of the recent health care law, are what the true meaning of the constitution is. Perhaps you are aware of the many other decisions reflecting on the constitutionality of various policies handed down almost daily by the federal judiciary. Do you agree that all of these decisions represent a return to the original constitution? Or only ones that reflect your personal preferences?

    So, fundamentally, you are asking us to read your very modern and particular preferences into the original constitution, and then limiting the debate to only whether a return to the original constitution is a good idea or not. This disingenuousness is what makes the alternate reading of the Josiah story (now condescended by Wilson to be at least as valid as your reading) so apropos.

  19. Strange… I just came back to post my new thoughts on the other thread dealing with conlaw type issues and it relates pretty strongly to going back and reading the document and changing positions, so I’ll repost here with the following thought. First, I really really don’t want Huckabee as president. Second, this seems like Huckabee fantasy-hate-porn or something, “Imagine if Huckabee required us to throw our babies in the air for target practice!” would be another what-if, which has unfortunately been done in history (the actual tossing/shooting of babies). I think we could merely expect more corruption and bluster from Huckabee with as much of a condescending nature of his speech than we ever heard from Gore.

    -repost-

    On further reflection on this issue and after reading the Constitution again I thought I’d let Geoff know that he’s lead me to change my opinion. If Congress and the American people want to regulate/ban/require X the process (as it seems to me) would be to have the normal amendment process happen.

    If Congress/People wants to ban/regulate pornography/abortion/guns/insurance, etc. congress would pass an Amendment stating,

    “The Congress of the United States is given power to regulate, restrict or promote (guns/abortion/insurance, etc) for the general welfare of the United States.”

    Then the people in the states would decide whether or not they want congress to have that power and vote on it.

    Then the Congress can return to the issue and as representatives of the people craft a law which is permissible under the new amendment. If the people don’t like it, vote them out and change it.

    This would require of course nearly all congressional laws past in the last 150+ years to be repealed and the foundations of those laws re-proposed in principle as Amendments for the states/people to decide whether or not to ratify. The plus side in my thinking is that would return governmental power to the people and it really would do away with this concept of “implied consent” and making the government govern via actual consent.

    I assume this was not followed in the years past because it became an unwieldy and slow moving process which could take a decade. It would move much faster now, and has the benefit of not being so fickle as direct popular vote on any issue, but still works through the normal checks and balances. We would potentially see a lot more amendments and “gumming up” of the constitution if we did that, but we do this now and just interpret it through the general welfare or commerce clause.

  20. JMax,
    I feel like you missed my point, which was that there isn’t a “truth” to be found in that story. There are many ways of reading it, all of which are equally valid in a rational sense. Now there are, of course, ones that we prefer over others, but that isn’t necessarily because they are truer in some sort of platonic or gospel sense (although that is certainly a possible explanation). Certainly Geoff has a right to cite this passage as a possible precedent for his motif; my point is that he is citing the motif, not the passage per se. In other words, he is saying that this passage proves his motif because he interprets this passage as following his motif. If you don’t see the passage as following the motif, then it doesn’t really prove anything.

    As to whether or not Deuteronomy originates in the time of Moses or Josiah, I don’t particularly care. Both are early enough to get it to be an influence on Nephi and Lehi :) And using perceived scripture to make political points is a time honored activity (as the post itself demonstrates). Certainly, if he’d made this point using Enoch or King Benjamin I wouldn’t be arguing with him about his choice of example (at least, not in this way), but you take the argument you are given, not the potentially better one that you can imagine on behalf of your opponent.

    Geoff B.,
    Regarding your larger point, “if you increase the power of government to mandate something you approve of, could that ever open the door for the government to mandate something you don’t approve of?”, of course it could. But it probably won’t. Hence the slippery slope. The Founding Fathers established checks and balances exactly to avoid this sort of thing. It isn’t a perfect system and people will take advantage of it, but on the whole it works. Government size isn’t an inherent problem (I don’t think; although it can be symptomatic of other problems and isn’t an inehrent good either); government corruption is possible at any scale. I used to work for the USPS and I talked to loads of people in small towns whose lives were ruined by their mail carrier.

    My larger point is that you aren’t simply invoking some notion of a foundational document; you are also claiming to have access to some ultimate interpretation of the document. So you feel like you know what “the general welfare” can and cannot refer to. But you don’t really. Even if they used it in a particularly way then, they seriously discussed approaches to general welfare that more closely mimic our use of the term. There is evidence that they were open to the idea of it in the way we use it, as Mark and liberals who interpret the Constitution are bound to point out to you. People only ever make the “words have meaning” argument if they feel like they’ve locked down the meaning, but, as the ambiguous historical value of Josiah’s reform indicates, words may not always mean what we think they should.

  21. John C – we can know what general welfare stands for. It stands for what it says – welfare generally.

    What congress often means it to be is welfare specifically.

    How we go from a concept such as general welfare, which really connotes an environment where the government enables (or doesn’t stand in the way of) the people can seek out their own general well-being, to federal program to pay for a study to find out why men don’t like condoms sounds pretty specific to me.

    Does it not sound specific to you? If you think that example is general, what do you consider specific?

  22. c,
    General welfare today tends to be interpreted as general well-being. Therefore some folk think that Congress should do what it can to increase the well-being of its constituents. As to whether or not understanding condom use is helpful to that endeavor, I can see arguments for or against. It’s beside the point in any case. May your insomnia go away as quickly as I hope my own to do.

  23. C, thank you! You read the actual document concentrating on what it says and means, and you got it! Yay!

    OK, my liberal friends, thought exercise: name me an article that is traded among the states that some people, including us Mormons, usually think is bad. Some people about 100 year ago wanted to ban that article. Can you think what that is? Yes! It is alcohol! Now, why didn’t the Congress back 100 years ago simply cite Congress’ power to regulate interstate commerce to ban this bad thing? It was the source documents. They had actually read them. And those documents said that if you wanted to change the Constitution, you need to add an amendment. So, that’s what they did. Now, history has shown that this particular amendment was incredibly ineffective and a bad decision. So just a few years later they passed *another* amendment nullifying the prohibition of alcohol.

    It seems to me there is a pretty clear process if you want to change the purpose of the Constitution: you pass an amendment. But we all know why this process was not used: it is cumbersome and lengthy, and FDR and LBJ and Bush and Obama wanted change now!

    My point is that the actual source documents describe how they can be changed. The same power that can twist the commerce clause into something unrecognizable to promote causes you believe in could very easily be twisted to promote causes you don’t. Be careful what you wish for.

  24. Two things:

    The “slippery slope” argument is only a fallacy when one is trying to argue that the action that puts us on a slippery slope is inherently wrong or bad. That’s fallacious because the fact that someone might abuse something and take it too far doesn’t say anything about the moral rightness of the action. However, that is not what the author is saying. He is simply saying that it is unwise and imprudent to do the action that puts us on a slippery slope. That is not fallacious, and that is what constitutional constraints are all about.

    Second, sure—there were a variety of interpretations of the Constitution when it was enacted. But that is not reason to ignore original intent. Let’s call the most strict reading of the Constitution at the time of its enactment “A” (Thomas Jefferson, James Madison, etc.), and the most loose reading of the Constitution at the time of its enactment “D” (Alexander Hamilton, etc.), with moderate readings “B” and “C” in between. This is pretty easily to establish, as even Hamilton, who read the Constitution very loosely, believed in certain limits and contraints to federal power.

    So yes, we have a spectrum of beliefs among the Founding Fathers, as described. However, if someone today were to propose “K”, a government action far outside the spectrum that existed during Jefferson and Hamilton’s time, we can conclude with certainty that it is outside the original intent of the constitution. If both Hamilton and Jefferson would rally against a bill because it is outside the constitutional role of the federal government, we have a solid standing for referring to original intent. Compelling someone to purchase a product certainly fits this description.

  25. Geoff, the other thing that got bought and sold in a previous century was human slaves. I, for one, am grateful that Lincoln used the big hammer on that issue, issued the Emancipation Proclamation and didn’t wait for the amendment process.

    While I generally agree with the argument that amendments are preferable, I am also a fan of the supreme court wielding the big hammer now and then. Brown v. Board of Education comes to mind. Federalism is important, but some things are more important.

  26. In other words, it is unconstitutional to claim that we can only bring about change through constitutional amendments because it grants too much power to the legislative branch and ignores the role of checks and balances.

  27. Jeff T, great comment. We need you to come here more often.

    Mark Brown, I think Brown v Board of Education is a great test case. This is why I think the whole issue of “following precedent” is dangerous as a theory of constitutional law. Everybody wants to follow the precedent of the law they support (like Roe v Wade) but they don’t ever want to follow the precedent of the laws they oppose (you’ll notice that the four justices in favor of gun control voted against McDonald even though the precedent was set in Heller — if they really supported precedent, McDonald would have been 9-0).

    So, there’s no real consistency in the idea of supporting precedent. I also don’t think there’s much consistency in the idea of “strict constructionism,” because it is based in part on following precedent.

    There *is* a lot of consistency in the idea of “textualism,” which means you go back to what the text says and what it meant in the time it was written, and you base your decisions on that.

    This is exactly what Brown v Education did — it went back to the 14th amendment and the equal protection clause and reinstituted the real intent of that amendment, thereby overturning Plessy v. Ferguson.

    The fact that Brown is a good thing does not argue against my point — it supports it. This is a classic case of how the court is intended to act — it is supposed to look at the foundational documents, including the wonderful 14th amendment, and judge based on them, not on ridiculous precedents that have caused all kinds of problems.

  28. Geoff B.,
    the fact that public officials take an oath to the Constitution but think the Constitution means whatever they want it to mean, when they think about it at all, well, that’s what’s rotten at the core of our system.
    Good post.

  29. OK, that makes sense, and thank you for clarifying. I just didn’t know what to make of this part of your comment 27: And those documents said that if you wanted to change the Constitution, you need to add an amendment.

  30. Jeff T., it must take a prescient mind to claim to know with certainty exactly how the full range of founders’ opinions would have come to bear on the modern debate about health care in light of the commerce clause! Since the federal judiciary doesn’t have someone like you around all the time, though, what are they to do? (BTW, serious proponents of original intent have moved on from trying to read the minds of the founders when they realized that the founders weren’t the ones who ratified the constitution).

  31. And I was probably hyper-sensitive to that specific point because over the holidays Br. Beck had a man on his show who used Brown v. Board as an example of an activist court of unelected judges who take away our freedoms and violate the tenth amendment and the principle of federalism. He stated specifically that school desegegration should have waited until an amendment was possible. It pleases me to know that you are not in that camp.

  32. I will also say that I probably do not see as much daylight between “following precedent”, “strict constructionism” and “textualism” as you do. If they were in a Venn diagram I think we would see three overlapping circles, with a lot of overlap. I think the reason you used quotation marks around those terms is because they don’t have specific, readily understood, stand-alone meanings.

  33. Dunno Geoff. I lost count a long time ago. For some reason, he has the dumb guests on every time I tune in.

  34. DCL—

    They wrote their thoughts down. I don’t have to read their minds. And sure, there was a spectrum of opinion those who wrote the constitution. But it was a narrow spectrum, and they wrote their thoughts down. There exist records of the debates that occurred back then. And sure, health care was never mentioned. But it is plainly obvious, to anyone who reads the records, what they would have thought about the issue. Only those who are blatantly dishonest with themselves and others would say otherwise. Yep, ad hominem. Deal with it.

    That’s like saying that we have no idea what Joseph Smith would have thought about pornography—since he didn’t write about it, nor did the problem exist back then.

  35. Geoff, to answer your question posed in comment #14 and the the post at large…

    Yes, there is a danger in the Fed Govt mandating we buy into, or not buy into things. Let the market decide what will survive. For example with electric cars (Chevy Volt comes to mind) don’t give rebates, tax incentives etc for this car. If people want it they will buy it, if not let it go the way of the Edsel.

    As for heathcare, I was and still am not a supporter of Obamacare. I’ve been told to go to hell, accused of wanting fluffy bunnies and small children to die, had my testimony questioned, etc, etc. I don’t want any of those things. The way the law was written, the mandates, the extra stuff that had nothing to do with healthcare, the fact that my Sens and Rep did not read it, just rubber stampped it, the fact that the GOP did and does have some good ideas to acutally reform, but those ideas were ignored, is what bothered me and does bother me. My feeling is, unless REAL reform is enacted, let things stand as they are and let the market decied.

    I think the Florida Judge was right to declare it unconstitutional. Your example was very spot on…if the govt can force you to buy one thing, why not something else. And then how will that spill into personal choices? Will we adopt a one or two child policy (to save the earth, or someother nonesense), will homeschooling families be forced to send their kids to public schools? Will our political speech be further regulated? Will the internet really stay free and unregulated? How far will we let the Patriot Act intrude into our lives? You present, sadly, a very possible scenario.

    However, I think our current DoJ and administration will just charge on ahead with their agenda (on healthcare, energy, school lunches, etc) no matter what a judge says. The issue is far from settled, that’s for sure. So yes, going back to our founding documents is always a good idea.

  36. Jeff T.,

    But it is plainly obvious, to anyone who reads the records, what they would have thought about the issue

    Yes, that is very true. I’m glad that we have letters from Jefferson to Hamilton wherein he advocates that the government provide assistance to poor people, otherwise we would have imposed our views on the founders.

  37. Geoff,
    As exciting as it is to be lectured on constitutional basics by you, I still disagree with how you read the commerce clause, the notion of general welfare, and, I’m sure, a couple of dozen other things. I manage to do it without feeling like I am doing injustice to the Constitution or the Founding Fathers. So I’m having trouble understanding your point.

    Put simply, I believe that things like health-care legislation, Social Security, and unemployment benefits are allowable within a current reading of the Constitution without doing damage to its original intent or meaning. So talking to me about reading source documents seems silly; it’s not that I haven’t read them, it’s that I don’t read them the same way you do. And you haven’t provided me with a reason to adopt your reading (of Josiah or of the Constitution). I haven’t done the same to you, of course, but that’s because I don’t imagine I could convince (and you’ve already told me, at least once, to not even try). And also because it doesn’t matter.

    It seems to me that people used to argue about the worth of programs and whether or not they did what they set out to do. Now we have folks like you holding up legislation to some arbitrary standard that is based on just as much myth and historical reconstruction as Josiah’s reign. It’s all a construct. I can’t escape the feeling that you aren’t calling for a return to founding principles, but rather that you are calling for an enthronement of your principles as founding principles. That’s a worthy activity, probably, but I think you should do your own work without pretending that the founders did it for you. FWIW

  38. John C, how far we have come from the halcyon days of your earlier comments on this thread. What portions of the original documents allow the federal govt to penalize citizens for economic inactivity…and can you please show me how these same powers, once adopted, would not be used to penalize people for other activities you might agree with?

  39. “What portions of the original documents allow the federal govt to penalize citizens for economic inactivity”

    The who and the how now?

  40. I really like the King Josiah comparison, especially if you carry it a little further in the Bible narrative. After King Josiah’s pious public display, he undertakes a campaign to rid Israel of all worship and behavior inconsistent with the re-discovered word of God. King Josiah blames all of Israel’s past political problems on not properly worshipping the one true God. Then, apparently feeling that he has generated sufficent favor with God with all of his successful reforms, he goes to battle with an Eygptian army on its way to fight the Persians. The battle was a spectactular failure for the Israelite and King Josiah loses his life to a sharp shooting Eygptian archer.

    So, who’s butt are we going kick once we have re-discovered the Constitution and are dilegently following the original intent? Will President Mitt be leading the army?

  41. I would refer you to http://www.thinkprogress.org for a description of Charles Fried’s testimony to the Senate Judiciary committee. Fried was solicitor general in the Reagan administration so you know he is a wild eyed socialist.

    He is “quite certain” that the individual madate is constitutional and bases this view on cases and opinions from John Marshall the great 19th century Chief Justice of the Supreme court.Marshall was not a “founding father” but he was pretty close to it.

    At lot of commentary on the district court opinions on the consitutionality of the individual madate assumes the case will end up in the Supreme Court with a 5-4 decision with justice Kennedy being the swing vote.

    I am not so sure. The consstitutionality of the individual madate will now be considered by three different federal circuit courts of appeals, the fourth, sixth and eleventh. My prediction is that each circuit will uphold the individual mandate and there will not be the necessary four votes on the supreme court to grant review.

    Of course if I would had the money to burn I would of put a large sum on the New England Patriots to be in the Super bowl and win it.

  42. Late to the party (no pun intended), but what’s going on here is a common historical argument. We seem to have an impulse to find ultimate truth in history, and in this case we even have the primary source document, with provenance, to refer to. But when it comes right down to it, when each of us reads this document, we can each interpret the words in different ways, even as the framers fought over the wording. As Ms. Lepore’s article points out, we often have no frame of reference to what some of those particular phrases ever meant.

    We love certainty; we abhor uncertainty. The framers could not foresee all the implications that the future held. Your interpretation of original intent is just as good as my interpretation of original intent. They could be the same or radically different. In reality, neither is worth anything at all. Final decisions (which can be overturned in the future) will be made by the Supreme Court, who were nominated by at this point I would guess at least 6 different presidents, and approved in aggregate by hundreds of senators, and opposed by some lesser number.

    So whatever is decided certainly is not going to be based on what those original words meant as shining pillar of ultimate truth, but by the compounded interest of hundreds of men and women who act in their constitutional duties (congress, the executive, and the federal judiciary), who in turn are put there by the combined efforts of millions of voters. Under this scenario, your original intent interpretation may or may not work out, just the same as mine.

    Your argument concerning Huckabee is a classic case of conflating issues as equals, when in fact they are not. The healthcare reforms passed by a majority of both houses and signed by the President seems to be a validation of constitutional values and representative government. So is the subsequent repeal by the House, and the tacit refusal to debate the repeal resolution in the Senate. Electorates change, elected officials change, and judicial appointees die, resign, or move on to other activities. Change is the essence of our form of government, and I for one appreciate that we can change as circumstances change.

    Under your argument and interpretation of original intent, even the amendments to the constitution should be questioned, as the framers didn’t think of them. The fact that they did allow for amendments, and for the checks and balances of three different and independent branches of government, shows that they didn’t envision that the original document would never change, or that circumstances and needs would never change. Original intent, indeed.

  43. I will be the liberal to say that I am slightly uncomfortable with the individual mandate. I can see your point, Geoff, of a conservative government mandating me to buy something that I don’t like (like S. Dakota’s proposed message bill of requiring all its state citizens to buy guns).

    So the simply solution is to create a public option and increase taxes. Then I think, there’s really not that big of a difference between mandating private health insurance and raising taxes for a public option, but I understand the symbolism of the difference.

    I fail to see, however, how the commerce clause doesn’t cover regulation of the health insurance business. It is a market that crosses state lines, so regulating it at the state level doesn’t make sense because then you would have a patchwork of 50 different regulations where citizens of different states are playing on different levels. This is exactly the situation that the commerce clause was made for, in my opinion. The problem, of course, is that I can’t think of hardly a thing I have bought or consumed lately that is not a product of interstate commerce. So I agree that the words have to have meaning, but I disagree that the meaning is being ignored. It is just a much different world that we are living in today than the one in 1787.

  44. Jacob S, we have some areas of agreement. Thanks for seeing the point of my post.

    John Willis, I remember clearly a year ago when the best legal minds in the country, including some conservatives, said a federal court with *never,* under any circumstances, overturn Obamacare for any reasons. So, your prediction may come true of course, but a lot of people whose predictions I respect are now saying this goes to the Supremes, with Kennedy being the key vote, and that the individual mandate is overturned 5-4. But then again I am the guy who was certain that Mitt Romney would win the R nomination and the presidency in 2008, so what do I know?

    Seldom, King Josiah would have *loved* the individual mandate.

    John C,

    http://www.investors.com/NewsAndAnalysis/Article/561570/201101311923/Florida-Judge-Rules-That-ObamaCare-Should-Be-Void.htm

  45. Geoff,
    I would assume that both that the general welfare clause could be called to duty if necessary or it could be related to the need to regulate interstate commerce. Isn’t that what Congress always does? Honestly, I don’t know; why is it legal and constitutional for state governments to mandate auto insurance? I’m assuming something similar to that is involved.

    However, I’m not particularly wed to the individual health-insurance mandate (it was a Republican proposal, after all). I don’t think the constitutionality of that particular part of health-care reform determines the constitutionality of health-care reform. If the court’s determine that the mandate is unconstitutional, I will survive. I think health-care reform should as well.

  46. John C, now we’re getting somewhere. Actually, the administration is relying on the “necessary and proper clause,” not the general welfare clause, as an alternative to the commerce clause. This is also a non-starter for Vinson, who rejected that in his opinion. Some of the reasons are explained here:

    http://blog.heritage.org/2009/08/20/is-national-health-insurance-constitutional/

    Your auto insurance example is a good one. There are two differences: the first is that auto insurance is required by the states, not the federal government. The 10th amendment clearly allows states to do many things the federal govt cannot do, and no libertarian-minded person has a problem with that when it comes to taxing power and welfare issues. We are *always* saying let the states have the power to do such things because you can always move to another state if you don’t like what your state is doing. The second difference with auto insurance is that you can choose not to drive. The health insurance mandate requires everybody to buy insurance or face a fine, which is something you cannot get out of.

    So, from the perspective of individual choice, you have two ways of getting away from auto insurance: you can move to a state with different rules or you can decide not to drive. Obamacare doesn’t give you these choices.

    Because obamacare was done in such a rush, the authors did not include a clause of non-severability. This is standard legal language which means that if one part of the law is ruled invalid, the rest is still valid. In the case of Obamacare, because that clause was not included, any part of the law being rules invalid actually invalidates the entire law.

    A huge amount of the opposition to Obamacare would disappear if there were no mandate. Not for me personally (I am against such things in principle), but for the majority of people. So, if progressives want to agree to drop the mandate, they will eventually prevail on this issue in one way or another. Remember that Obama was opposed to the mandate during the 2008 campaign and Hillary was in favor. So this is still an area where progressives could take a different tack.

  47. Geoff,
    The mandate was a Republican proposal. But setting that aside, this is a clear case where the checks and balances in the Constitution are working (you seem to be saying), so your Mike Huckabee thing is even less relevant. Over the course of this thread, you’ve pretty much abandoned the whole thrust of your original post, which is fine with me, of course.

    I’ve never liked the mandate, so if it goes away, I don’t care. I don’t think that it is a progressive issue; its a pro-business (especially insurance) issue. I don’t think that there are a lot of progressives who are happy about it; it was a sop given to business interests in order to make the system less government and more market controlled. Doing away with it makes attempts to deal with health care more socialist. I’ve no idea why you are crowing about this defeat, except that you seem to dislike Obama on principle. So, good for you. A part of the law that I doubt he much cares about will be stricken (maybe).

  48. The necessary and proper clause is nothing on its own. It is only used in conjunction with one of the ennumerated powers of Article I Section 8. I think the raising of taxes for the general welfare and the interstate commerce clause are both pretty strong starting points for regulation of the insurance market.

    As to severability, it was incredibly stupid for the drafters of the legislation to leave it out, but it is also left out of many, many pieces of legislation and still implied by most courts. Judge Vinson went too far in not severing the legislation in his decision.

  49. And, to follow up, I think the necessary and proper clause and the general welfare clause are both pretty strong pieces of evidence that the drafters of the Constitution meant it to be adaptable to changing situations, and that we need not hew so closely to their perceived intentions. They intentionally included incredibly broad language as a result of both the process of negotiation between themselves and as, I believe, an effort to be as far-sighted as possible.

  50. John C, the Huckabee thing is just a way to get people to think differently about overweaning government power. I wouldn’t trust Huckabee in a position of power, and I wouldn’t trust his interpretation of the commerce clause for a second. This is the guy who called for killing Julian Assange after the Wikileaks situation. He is a Big Government conservative, possibly the worst type of politician I could imagine, even worse than Bush or Obama. And it is still possible he could someday be president.

    So, I stand by the point of my post, and I would actually argue it has succeeded in my original goal in getting some people to think about government power and the commerce clause, based on the comments I have seen so far. But if you want to see it differently, that’s OK. You were not my intended audience (meaning I never expected you to be one of the people whose mind I changed on anything.)

  51. John C, I really have to object to this kind of language as incredibly offensive.

    “I’ve no idea why you are crowing about this defeat, except that you seem to dislike Obama on principle.”

    First of all, I deliberately *avoid* crowing about anything. This post is an attempt to find common ground, an attempt to show that big government is something both progressives and libertarians can share opposition to. I don’t know how I could have been more clear than that because I said it nearly a dozen times and deliberately avoided “crowing” about anything. Crowing would be an entirely different type of post. Secondly, of all of the conservatives/libertarians you know, I bet I am the one *least* likely to engage in Obama hatred. I think birthers are insane, I think he is a great family man and quite charming. I oppose his *politics* because I don’t think growing the government is good for anybody, but it is simply a political issue. In addition, I am one of the few conservatives/libertarians you will hear say that Obama is a standard-issue liberal. I don’t think he is a socialist any more than Nancy Pelosi is a socialist. John Edwards, had he been elected, is probably to the left of Obama. I have said many, many times to the contempt of conservatives on these very pages that calling Obama a Marxist is stupid.

    I really think you need to retract that very offensive sentence.

  52. She’s saying that arguing that the Constitution has been forgotten and forsaken is offensive because there is no proof of that nor any particular reason to assume it. I least, I think that is what she is saying.

  53. To the extent that it is supposed to be implicitly directed at that other political party, I think it unfairly impugns motive, rather than assuming that the opposition is acting in good faith. In other words, I think “you honor and cherish the Constitution, but interpret it differently from the way I do” is more fair than, “you forgot and forsook it.”

  54. I commented yestedray, but it got eaten by the technical problems. Cythnia L, this is probably the most non-partisan post I have made on this issue. In it, I imply some of the Republicans who might get elected in 2012 are fascists. I never mention the Democrat party at all. For the record, I think you could make a strong case that the Republican party was equally neglectful of the Constitution in the 2000s. I think a declaration of war is necessary for Iraq and Afghanistan, and that never took place. Guantanamo, Patriot Act, etc — all unconstitutional (imho).

    So, I would have to disagree with your having a reason to be offended if the offense is motivated by this post being aimed at “the other party.”

  55. Geoff,
    Part of the problem is that you weren’t making these arguments when the other party was in power (or, perhaps more accurately, when it looked like the other party was going to retain power). There are an awful lot of newly minted libertarians out there who were neo-cons 6 years ago. So it is hard for people to tell how sincerely held these opinions are. For that matter, the argument you are making now about “Pres. Huckabee” is essentially the same argument that people were making about President Bush at the time of the Patriot Act. But back then it was “you don’t understand who the muslim extremists are” and so forth. So if we are a little skeptical of your sincerity and a little put out by your assumption that we’ve never thought of this, that’s why. And it isn’t even you, necessarily. Perhaps you always maintained that invading Iraq was a serious over-reach or that the Patriot Act was an abuse of power. I don’t remember it that way, but I conflate conservatives a lot (conflating the opposition appears to be a crime we both engage in). So, I apologize for sorta lumping you in with all the situational libertarians out there.

  56. John C, no, your description of me six years ago is accurate. I was a big supporter of the war and was not worried about the Patriot Act. I have completely changed my views. I would think you would applaud that. It seems like you have two choices.

    1)Welcome me to “your side” of the debate with open arms.
    2)Continue to be suspicious.

    It’s your call, but if you suddenly decided you agreed with me and were convinced by all of those libertarian arguments out there, I would welcome you with open arms.

    For the record, here is how I see the Republican field right now. Gingrich, Palin, Huckabee, Bachman, Perry: completely unacceptable. If any of them gets the R nod, I will vote for a third party and/or libertarian candidate.

    Preferred candidates: Johnson or Ron Paul. I will support them during the Republican primary.

    If the Republican candidate is Huntsman or Romney or Daniels or Christie or Thune, I will unenthusiastically support them as better than the Dem candidate. (Daniels or Christie would be the better choices).

  57. Let me add something that I hope will hit home. I was a big left-winger in college. I was offered a job as a reporter in Nicaragua right out of college. I went there thinking I was going to help support the marvelous left-wing Sandinista government in its heroic fight against the Yanqui imperialist (great attitude for a journalist, right?). Anyway, when I got there I found that my heroic views of the Sandinistas were incredibly naive. They were just like any other tinpot dictatorship, out to get whatever they could get financially. The main message I got was: if you are on the side of the average person, you must realize that the average person is pretty much the same the world over. They want the same things you and I want: a job and to be left alone by government. They want a government that will protect them from bad guys and help them temporarily get through tough times, but the rest of the time they want govt to be invisible.

    We are all formed by our experiences, and this has left a big impression on me. I voted for Clinton because he seemed to me to be the candidate who most supported this philosophy: help create real jobs and get the government out of the way. I voted for Bush twice because at the time I thought he also supported this. But the endless wars we are involved in, and the expansion of government powers under Bush, really started to worry me in 2007-2008. The circumstances, and the result of his philosophy, have become much more clear to me. There are still Republicans who share my philosophy, but people like Huckabee at their core do not: they are about creating an ever bigger state, thinking that government is always the solution. The fact that Huckabee called for executing Julian Assange is extremely worrisome — Huckabee is a wacko.

    So, the lesson brought home to me is that there are people in both parties who “get it” and agree with my philosophy of government, and there are people in both parties who don’t “get it.” Yes, I’ve changed since the Bush days, but I like to think I’ve simply kept my eyes open and learned from new experiences. I was led astray by party loyalty, which I think is a big mistake.

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