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It has been argued many times to me that the original intent of the
Founding Fathers was towards what would be a libertarian state, with minimal weak government, and little to no interference in politics. The most common misconception is that they were all like-minded libertarian types, which is ridiculous to anyone who's cracked a history book.
The reality is that about half the Founding Fathers—the ones who became Federalists—favored a strong federal government. That's why they called themselves Federalist. Hamilton, the leading Federalist thinker and the main writer of the Federalist Papers, had this to say about the "limits" of government:
[T]he federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.
- Hamilton, Federalist No. 31
Oops. The whole idea of checks and balances came about because many Founders favored a strong central government. Others second this reading of the Founding Fathers. For instance, consider this excerpt from Richard Brookhiser's review of "Alexander Hamilton" by Ron Chernow:
Hamilton looked beyond his department to advise Washington on the entire conduct of the government. Hamilton argued for "energy in the executive." He wanted the government, led by the president, to do whatever needed doing as long as it was not explicitly forbidden. This advice brought him into conflict with his former co-author Madison, who had once seemed to agree with it but now got cold feet. Their quarrel over constitutional interpretation helped generate the first two-party system — Hamilton's Federalists versus Jefferson and Madison's Republicans (ancestors of today's Democrats, not the GOP). When Jefferson and then Madison became president, they both to a great extent followed Hamilton's advice, without ever admitting it.
So Hamilton's party favored a strong central government. Jefferson's party opposed it in theory but accepted it in reality. Sounds to me like Hamilton's position was the predominant one.
Garry Wills, a leading political writer, confirms my point in his book "A Necessary Evil: A History of American Distrust of Government.":
Wills' main point is clear and persuasive. The Constitution was created by men who wanted to strengthen national authority, not weaken it, and who believed state governments were more likely than the national to abuse power and threaten individual liberties. Yet somehow, the Anti-Federalist critique of the Constitution, which warned of the danger to liberty posed by overweening federal authority, became the common understanding of what the founders had wrought.
In short, the idea that Jefferson represented the Founders is a myth. In fact, he represented the opposition to what most Founders sought. This is especially amusing as most libertarians uphold Jefferson as the "archetypal Founding Father", when he neither wrote nor had input into the US Constitution.
Many ask if the federal government is even close to what most of the Founding Fathers would have wanted it to be. Given Jefferson's Louisiana Purchase, which may be the biggest US government action of all time (by some measure), I think the Founders understood that government can't ignore reality. I think they'd understand that government had to grow to keep pace with the country's population, now 281 million. That's why they included broad phrases such as "provide for the general welfare" as well as the power to add amendments.
It's funny anyway because here's what Jefferson had to say on the reality of federal power:
...I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." [Xth amendment.]
If the powers are reserved to the people, the people have the right to delegate them back to the state or federal governments. This clause really doesn't limit the Constitution the way you think it does. By saying "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," the 9th Amendment reinforces this interpretation of the 10th Amendment. The people have more rights than those listed in the Constitution. Do those include the right to privacy? Yes. The right to abortion? Yes. The right to an expansive interpretation of the Constitution? Yes.
Just as people can grant themselves rights in state constitutions that go beyond the US Constitution, they can extend the Constitution using its broad or ambiguous provisions. Even James Madison, almost as strict a constructionist as Jefferson, said the people had the right to change their view of the government's power:
If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due....
- James Madison, Federalist No. 46
I consider this a nice restatement of the 9th and 10th amendments. It implies the people's rights supersede any hazy interpretation of the Constitution's limits. Unless the Constitution is definite on a point — e.g., the president's term shall be four years — the people's view of their own rights is paramount. If they say the right to privacy or abortion is one of their unenumerated rights per the 9th Amendment or one of their reserved rights per the 10th Amendment, it is — by definition.
The same applies to flag-burning, school prayer, or homosexual marriages. Since the Constitution isn't explicit on these issues, the "right" is whatever the American people say it is. If the people elect a Congress that passes a law that the president signs and the Supreme Court upholds, that becomes the definition of our rights — not what Jefferson thought our rights were 225 years ago. The people have unenumerated and reserved rights Jefferson never imagined.
Here's one of Hamilton's statements about the federal government's powers:
A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution.
- Alexander Hamilton, Federalist No. 30
Even Jefferson wasn't as libertarian as his rhetoric might suggest. For instance:
He regarded himself as more loyal to the U. S. Constitution than his loose-constructionist foes were, though in fact he was less a strict constructionist in practice than in theory. Although he had objected to features of Hamilton's financial system, he had no intention of upsetting it now that it was firmly established.
- Encyclopedia Americana
Page 1493, Letter to Major John Cartwright Monticello, June 5th, 1824:
To the State governments are reserved all legislation and administration, in affairs which concern their own citizens only, and to the federal government is given whatever concerns foreigners, or the citizens of the other States; these functions alone being made federal.
Yes...so? Most federal laws concern the citizens of all states, not the citizens of one state only. Besides, the 14th Amendment, among others, enlarged the scope of the federal government's power. The passage of that and other amendments — perfectly legitimate, by the way — now determines the Constitution's interpretation, so Jefferson's views are no longer strictly applicable.
The one is the domestic, the other the foreign branch of the same government; neither having control over the other, but within its own department....
Several Federalist Papers speak of the Union's being more important than the several states. If Jefferson thought the state and federal governments were exactly equal, he was mistaken. Maybe he should've read the Constitution itself:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
- US Constitution, Article VI
The Supremacy Clause speaks pretty clearly.
Founding Fathers was towards what would be a libertarian state, with minimal weak government, and little to no interference in politics. The most common misconception is that they were all like-minded libertarian types, which is ridiculous to anyone who's cracked a history book.
The reality is that about half the Founding Fathers—the ones who became Federalists—favored a strong federal government. That's why they called themselves Federalist. Hamilton, the leading Federalist thinker and the main writer of the Federalist Papers, had this to say about the "limits" of government:
[T]he federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.
- Hamilton, Federalist No. 31
Oops. The whole idea of checks and balances came about because many Founders favored a strong central government. Others second this reading of the Founding Fathers. For instance, consider this excerpt from Richard Brookhiser's review of "Alexander Hamilton" by Ron Chernow:
Hamilton looked beyond his department to advise Washington on the entire conduct of the government. Hamilton argued for "energy in the executive." He wanted the government, led by the president, to do whatever needed doing as long as it was not explicitly forbidden. This advice brought him into conflict with his former co-author Madison, who had once seemed to agree with it but now got cold feet. Their quarrel over constitutional interpretation helped generate the first two-party system — Hamilton's Federalists versus Jefferson and Madison's Republicans (ancestors of today's Democrats, not the GOP). When Jefferson and then Madison became president, they both to a great extent followed Hamilton's advice, without ever admitting it.
So Hamilton's party favored a strong central government. Jefferson's party opposed it in theory but accepted it in reality. Sounds to me like Hamilton's position was the predominant one.
Garry Wills, a leading political writer, confirms my point in his book "A Necessary Evil: A History of American Distrust of Government.":
Wills' main point is clear and persuasive. The Constitution was created by men who wanted to strengthen national authority, not weaken it, and who believed state governments were more likely than the national to abuse power and threaten individual liberties. Yet somehow, the Anti-Federalist critique of the Constitution, which warned of the danger to liberty posed by overweening federal authority, became the common understanding of what the founders had wrought.
In short, the idea that Jefferson represented the Founders is a myth. In fact, he represented the opposition to what most Founders sought. This is especially amusing as most libertarians uphold Jefferson as the "archetypal Founding Father", when he neither wrote nor had input into the US Constitution.
Many ask if the federal government is even close to what most of the Founding Fathers would have wanted it to be. Given Jefferson's Louisiana Purchase, which may be the biggest US government action of all time (by some measure), I think the Founders understood that government can't ignore reality. I think they'd understand that government had to grow to keep pace with the country's population, now 281 million. That's why they included broad phrases such as "provide for the general welfare" as well as the power to add amendments.
It's funny anyway because here's what Jefferson had to say on the reality of federal power:
...I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." [Xth amendment.]
If the powers are reserved to the people, the people have the right to delegate them back to the state or federal governments. This clause really doesn't limit the Constitution the way you think it does. By saying "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," the 9th Amendment reinforces this interpretation of the 10th Amendment. The people have more rights than those listed in the Constitution. Do those include the right to privacy? Yes. The right to abortion? Yes. The right to an expansive interpretation of the Constitution? Yes.
Just as people can grant themselves rights in state constitutions that go beyond the US Constitution, they can extend the Constitution using its broad or ambiguous provisions. Even James Madison, almost as strict a constructionist as Jefferson, said the people had the right to change their view of the government's power:
If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due....
- James Madison, Federalist No. 46
I consider this a nice restatement of the 9th and 10th amendments. It implies the people's rights supersede any hazy interpretation of the Constitution's limits. Unless the Constitution is definite on a point — e.g., the president's term shall be four years — the people's view of their own rights is paramount. If they say the right to privacy or abortion is one of their unenumerated rights per the 9th Amendment or one of their reserved rights per the 10th Amendment, it is — by definition.
The same applies to flag-burning, school prayer, or homosexual marriages. Since the Constitution isn't explicit on these issues, the "right" is whatever the American people say it is. If the people elect a Congress that passes a law that the president signs and the Supreme Court upholds, that becomes the definition of our rights — not what Jefferson thought our rights were 225 years ago. The people have unenumerated and reserved rights Jefferson never imagined.
Here's one of Hamilton's statements about the federal government's powers:
A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution.
- Alexander Hamilton, Federalist No. 30
Even Jefferson wasn't as libertarian as his rhetoric might suggest. For instance:
He regarded himself as more loyal to the U. S. Constitution than his loose-constructionist foes were, though in fact he was less a strict constructionist in practice than in theory. Although he had objected to features of Hamilton's financial system, he had no intention of upsetting it now that it was firmly established.
- Encyclopedia Americana
Page 1493, Letter to Major John Cartwright Monticello, June 5th, 1824:
To the State governments are reserved all legislation and administration, in affairs which concern their own citizens only, and to the federal government is given whatever concerns foreigners, or the citizens of the other States; these functions alone being made federal.
Yes...so? Most federal laws concern the citizens of all states, not the citizens of one state only. Besides, the 14th Amendment, among others, enlarged the scope of the federal government's power. The passage of that and other amendments — perfectly legitimate, by the way — now determines the Constitution's interpretation, so Jefferson's views are no longer strictly applicable.
The one is the domestic, the other the foreign branch of the same government; neither having control over the other, but within its own department....
Several Federalist Papers speak of the Union's being more important than the several states. If Jefferson thought the state and federal governments were exactly equal, he was mistaken. Maybe he should've read the Constitution itself:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
- US Constitution, Article VI
The Supremacy Clause speaks pretty clearly.
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