I Note, from Jack Tierney

June 29, 2012 |

 I note that one of our noted contributors has observed that "What Madison et. al. did not anticipate was the Federal government would supersede the States in authority [and] would have laughed/cried/raged at the notion that the "commerce clause" enabled Congress to have the power to do anything more than pay for the Army and Navy…"

While this observation may be true enough for Madison, I find that among the "et als" there were contemporaries who disagreed…and did so quite publicly and aggressively. Their thoughts and objections were widely distributed at the time. Unfortunately, their observations, which have proven prophetic, have been largely forgotten or ignored by current commentators and educators. I view the "Anti-Federalist Papers" as Liberty's Abel to the Federalist's Cain.

In Anti-Federalist #32, Brutus reads Article 1, Section 8 and concludes that "Under this clause may be imposed a poll tax, a land tax, a tax on houses and buildings, on windows and fireplaces… comprehends an excise on all kinds of liquors, spirits, wines, cider, beer, etc., and…on every necessary or conveniency of life, whether of foreign or home growth or manufactory…It opens a door to the appointment of a swarm of revenue and excise collectors to prey upon the honest and industrious part of the community, [and] eat up their substance. . . "

As to our contributors surprise that the ruling "says the Federal government cannot automatically compel the States to follow Congress' mandates", Brutus, responds: "I shall only remark, that this power, given to the federal legislature, directly annihilates all the powers of the state legislatures…the general government having in their control every possible source of revenue, and authority to pass any law they may deem necessary…[s]hould any state attempt to raise money by law, the general government may repeal or arrest it in the execution…"

I would further question the contention that this apparent sop to States' rights might is a victory. In fact, I wouldn't be surprised to see the reasoning used (or mis-used) just as the commerce clause has been used and mis-used by Congress to step a little beyond the boundaries envisioned by the founders. That said, the Federalists, though heralded as deep thinking patriots who brought a "dream" to life, a substantial number were among that period's well-to-do (the aristocracy, if you will). The author of Anti-Federalist 1 describes them as members " of the NOBLE order of C[incinnatu]s, holders of public securities, men of great wealth and expectations of public office, Bankers and Lawyers…[t]he Lawyers in particular, keep up an incessant declamation for its adoption; like greedy gudgeons they long to satiate their voracious stomachs…I hope my fellow-citizens will look well to the characters of their preference, and remember the Old Patriots of 75; they have never led them astray…"

They were little different from the gentlemen and (now) ladies currently occupying Congress and assuring us that the Declaration is their pole star and the Constitution sacrosanct. (Other interesting contentions one discovers in the Anti-Federalist Papers is that many of the fine gentlemen elected to attend the Convention, didn't..resulting in a more limited debate, conducted largely by those intent on creating a new document, not amending the existing Articles.) Whether these contentions can stand up to historical scrutiny is open - but, to date, the secondary education establishment has limited its scope on this period to fulsome praise for Federalists X and LI (Roman numerals 10 and 51).

I would argue, despite strident claims to the contrary, that our representative are not interested in a better informed, better educated, and more involved public. Governments prefer well-fed, as opposed to well read, voters.





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