Both Hotflash and I have already written (here, here and here) about the level of anger and paranoia at the AFP/McCaskill town hall last Monday. The expression of these two emotions was often accompanied by a certain mock-heroic and very self-righteous mililtancy.
One of the most interesting examples was the diatribe from the clean-cut, handsome young man in Hotflash’s video, dressed in a suit, surely his mother’s pride and joy, who struck an heroic pose and declared that if McCaskill were to truly uphold the vow to the constitution that “took her to Washington,” just as his similar vow took him “overseas with a rifle” (cue applause), she is obligated to fight the extra-constitutional health care reform power grab — or otherwise apologize, presumably to the various Tea-Party types since the rest of us will, of course, demand an apology only if she doesn’t vote to defend our interest in having health-care reform with a robust public option.
What was most striking about his harangue, apart from the aura of self-righteous rectitude, was the reference to upholding and defending the constitution. This is an important right wing meme and it is not surprising that it frequently surfaced in the various sermons with which the Tea-Partiers regaled McCaskill’s representative. The role of this trope is to provide an intellectual hook upon which to anchor the right-wing theology that regards government-sponsored social services as anathema and which justifies holly war against big government.
The people at Monday’s meeting were combative, muddled, and fearful, but for many, if they can assume the mantle of constitutional warrior, they clearly seem to believe that they will rise to a whole new level of credibility. Because these constitutional claims are so important to this noisy group, it is important that progressives are clear about their lack of substance.
As you heard from the video, the specific bone of contention is the so-called general welfare clause which is found in Article 1, Section 8, of the Constitution:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States
This reference to general welfare has provided the rationale for public service programs like Social Security, unemployment and disability insurance, Medicare, Medicaid, food stamps, and many others. You can see why the right-wing might want to weaken it.
Conservative think-tankers have been working in over-drive for some time to come up with a justification for limiting its application. They clearly think that they have struck pay dirt in reviving the dispute about the general welfare clause that first arose between Alexander Hamilton, who argued for a broad interpretation of the clause, and James Madison and Thomas Jefferson who believed its application should be limited to the sphere of the other congressional powers enumerated in the constitution.
Madison’s contributions to the constitutional debate are fairly unequivocal and, consequently, many on the extreme right prefer to think of him as the singular “father” of the constitution. The Federalist No. 41, combined with some statements on the topic in a few private letters written by Madison to various correspondents set out the case the right-wing makes today in his name.
Thomas Jefferson echoed Madison, most notably when arguing against Alexander Hamilton’s proposals for a national bank. However, Theordore Sky, author of To Provide for the General Welfare(pp. 102-5), an exacting history of the application of this clause, offers some grounds to believe that Jefferson’s position was at least partially a result of his personal distrust of Hamilton, and was part of a much wider power struggle between these two men.
Furthermore, Jefferson’s concerns about a national bank, and by extension Madison’s views on the welfare clause, were rejected by Washington, whose views on the broad question of the general welfare clause are otherwise undocumented (Sky, p. 104). (Which fact leaves one at a loss to account for frequent invocation of Washington’s name when the Tea Party/AFP folks at the Town Hall struck what they believed to be their constitutional coup-de-grace.) Actually, neither Madison nor Jefferson represented the received, contemporary opinion. In spite of what many want to believe, the framers were a diverse group and politics were as messy then as they are now.
Alexander Hamilton was equally prominent among the “founding fathers,” to whose constitutional intentions conservatives believe we must defer, and he represented the opinions of many of his contemporaries that the welfare clause was intended to be broadly interpreted. The fullest presentation of Hamilton’s position can be found in the Report on Manufactures (Dec. 1791), and the Report on the Constitutionality of a National Bank (Feb. 1791).
Hamilton’s response to the criticisms of Madison and Jefferson was casual to say the least, and underlines the fact that, in spite of the belief of many conservatives, there is probably no sacred stone upon which the clear-cut intentions of the founders were engraved right from the beginning:
There are things which the general government has clearly a right to do. There are others which it has no right to meddle with; and there is a good deal of middle ground, about which honest and well-disposed men may differ [Sky, p. 104].
And, in fact, Hamilton’s interpretation prevailed. Even Jefferson and Madison, who were pragmatic men, went along with this interpretation, as Michael Adamson, in a review of Sky’s book, correctly notes,
The decisions of the presidents who believed that a constitutional amendment was required to expand the scope of the general welfare clause (namely Thomas Jefferson, Madison, and James Monroe) to put nation building above political theory and constitutional interpretation in their sanctioning of federal funding of certain public works projects ensured that Hamilton’s reading of the clause would prevail.
The courts, too, have weighed in. Beginning in 1819 and culminating with United States v. Butler (1936) and Helvering v. Davis (1937), the courts have upheld this interpretation with some minor limitations. 200 years is a lot of precedent to overthrow — although clearly many on the right are taking bets that Justice Roberts and his conservative cohorts on the Supreme Court will take a stab at it.
So there you have it. Since McCaskill authorized her representative to announce her support for health care reform and, more specifically, for the public option, our young hero seems to be in the position of aggressively demanding her apology for constitutional transgression, while standing on very shaky constitutional ground.
Of course, the real problem is not this flimsy co
nstitutional rationale for the overt and covert threats of god-only-knows what that were filling the air at the Tea Party town meeting, but the violent emotions that these people cloak behind the image of beleaguered but valiant patriots who struggle to defend the constitution. But I ask, if this were indeed the real reason these wannabe warriors stamp their feet and scream defiance over health care legislation, then where were they during the Bush years when the real, non-controversial, constitutional principle of separation of powers was under nearly constant threat?
Posting edited for clarity 7/29.