May 19, 2010 – Federalist No. 16 – Cathy Gillespie

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Thursday, May 20th, 2010

A big thank you to our guest blogger Marc Lampkin! Marc, thank you for guiding us today!

I so appreciate all of you who take the time to comment.  You often see nuggets of wisdom in these papers that I have glossed over on my first reading, and your posts send me scrambling back to find the phrases you elaborate on.

Two phrases jumped out at me upon my first reading of Federalist 16, though, and they are the same mentioned by Nickie and Carolyn:

An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority.

“A people enlightened,”  ”natural guardians of the Constitution”

“We the people,” are the natural guardians of the Constitution, because as our country drifts from the Constitution, it is “We the people,” who have the most to lose.  If we are not “enlightened,” to understand what we had, and have, we will certainly not know what we have lost, and are losing.  And our children will understand even less than us. We must not only enlighten ourselves, but enlighten our children, so the torch of freedom may be passed to the next generation of Americans.  Watch Janine’s Behind The Scenes Videos starting today, as she teaches her daughter about the Constitution in a several part series!  Janine Turner Short Film Part 1 Constituting America

I am both amazed, and a bit embarrassed to admit how much I am learning through this exercise. I graduated from Texas A&M University with a B.A. in political science, yet I don’t recall ever picking up the Federalist in college.  This reading is my first time through these prescient papers.   Tonight, I feel empowered that I am becoming “enlightened,” and that the founding fathers considered us – ‘we the people” – to be the guardians of the Constitution.   The more I learn, the better I can guard it!  And the more I can teach my children! On to Federalist No. 17!

Good night and God Bless,

Your fellow guardian of the Constitution,

Cathy Gillespie

2 Responses to “May 19, 2010 – Federalist No. 16 – Cathy Gillespie”

Mark Hansbauer says:
May 20, 2010 at 3:30 am
The people must be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. . . .”
The distinction between a “legal exercise” and an “illegal usurpation of authority” implies knowledge of the difference between “legal” and “illegal.” Is a governmental action “legal” simply because it follows precedent or is based on a plausible interpretation of the Constitution? Is such action “illegal” when it contravenes precedent or is based on a novel interpretation of the Constitution? These questions bring out the possibility that it is not sufficient for the people to understand the Constitution merely at the textual level. There has to be knowledge of standards that ‘stand above’ the Constitution, not to usurp it, but through which we arrive at the fullest and most just construction of the document.

Dave says:
May 20, 2010 at 11:30 am
Mark, good observation. The Constitution did not come complete with a rule book for construction or, as we would say, interpretation. Who is to decide what is constitutional? How are they to go about the process of deciding? And on what are they relying? It seems to me that the approach to the Constitution has become one of avoidance. Interested parties have an agenda or result in mind and then scour through the case law to find any little precedent they can hang their hat on to nudge the law incrementally toward their desired result.
Each incremental step away from the Constitution seems completely innocuous, plausible and reasonable. But after 230+ years, the “constitution” they are interpreting is strikingly different from the one the framers put their name on. Others have likened it to generations of judges and legal scholars attempting to improve an Old Master painting with a brush stroke here and a brush stroke there. Hubristic acts of defacement and vandalism are what I call those narrow-minded, agenda-driven improvements. Want a different constitution?–AMEND IT! There are, after all, amendment provisions.
Some legal minds get it. Justice Scalia and Justice Thomas come to mind. There are others:
“I claim the right to look at the Constitution itself, stripped of judicial encrustations, as the index of constitutional law.”–Justice Jackson
A judge “remembers above all that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put upon it.”–Justice Douglas
“The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”–Justice Frankfurter
The Founders did not suffer from delusions of grandeur; Hamilton says it was never about “the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man.” (No. 85) They did give us constitutional means to make it “more perfect.” I wish we would use those means instead of unconstitutional ones which rely on the arbitrary policy preferences of unelected judges with lifetime tenure.
We have ended up with, as other Constituting America contributors have mentioned, the Orwellian doublespeak of engaging in commerce by not engaging in commerce. (see Wickard v. Filburn, 317 U. S. 11 (1942))
Mark, sometimes what I see is not a question of knowledge of what’s “legal” or “illegal.” They have the knowledge; they just want a different outcome. Thanks for getting me to think about these ideas.

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