Tag Archives: federalist papers

James Madison on Obamacare

Obamacare is being threatened yet again as a new mistake is discovered in the 2,000 page bill.

States could dodge a key part of the health care reform law because of a little-noticed mistake in the lengthy bill, according to a white paper by conservative health care experts Michael Cannon and Jonathan Adler.

A missing word in the law’s definition of a health insurance exchange could prevent the federal government from doling out crucial subsidies to aid middle class and lower-income people in buying insurance in states that refuse to set up their own exchanges. (Only 14 states are close to setting up exchanges so far. The federal government will set up back-up exchanges in states that don’t have their own by 2014.) If Cannon and Adler are right, the federal government would also not be able to fine large employers in states without exchanges if their lack of coverage leads employees to buy insurance in a federal exchange.

The law defines a health insurance exchange as a “governmental agency or nonprofit entity that is established by a state” in one section of the law, and then says later that individuals who participate in exchanges under that definition are eligible for subsidies. Because the law only says a “state” and not “a state or the federal government,” Cannon and Adler argue that the federal government cannot legally dole out subsidies or tax breaks to people who buy insurance from federal exchanges.

All this reminds me of what James Madison wrote in Federalist No. 62:

It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.

Our Founding Fathers would be appalled at 2,000 page bills that are rushed through Congress without a single Congressman reading it before voting nor the President before signing it.

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The Bill of Rights: Good, Bad, or Indifferent?

I brought up this topic months ago and had the opportunity to lead a discussion about it at the Arizona chapter of the Republican Jewish Coalition. Please join the conversation in the comments sections below.

Anti-Federalists demanded a bill of rights, BUT…

There was disagreement about what a bill of rights should contain. James Madison in Federalist No. 28 wrote about the Anti-Federalists opposition to the Constitution:

A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced…

Some Anti-Federalists opposed the Constitution even after a bill of rights was promised. For them, a bill of rights was just a way to oppose ratification.

The Articles of Confederation had no bill of rights.

Four state constitutions, including that of New York, lacked bills of rights even though the states had been acting as independent republics for years.

Hamilton opposed a bill of rights

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

Madison had a mixed opinion regarding bills of rights

There are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution… My own opinion has always been in favor of a bill of rights… At the same time I have never thought the omission a material defect… I have not viewed it in an important light.

In a letter to Jefferson, Madison lists four reasons a bill of rights was not needed:

because I conceive that in a certain degree… the rights in question are reserved by the manner in which the federal powers are granted.

because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition, would be narrowed much more than they are ever likely to be by an assumed power.

because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.

because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State… Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.

Upon introducing the Bill of Rights, Madison said:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it.

Madison attempted this with the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Discussion:

Did Madison succeed with the Ninth Amendment?

Were the arguments against a bill of rights valid then?

Are they valid today?

Have our rights been effected positively, negatively, or not at all by the Bill of Rights?

Should we focus the debate on protecting our individual rights or on limiting the government’s powers?

– Michael E. Newton is the author of the highly acclaimed The Path to Tyranny: A History of Free Society’s Descent into Tyranny. His newest book, Angry Mobs and Founding Fathers: The Fight for Control of the American Revolution, was released by Eleftheria Publishing in July.

Thoughts on Governance

Writing for What Would The Founders Think?

In this post, Michael Newton tries to restore precision to our language. The American experiment was conceived as a republic, not a democracy. Present day efforts to conflate the terms not withstanding, the Founders were wary of democracies and they had good reason.

Read the rest of this entry »

Bill of Rights. Good, bad, or indifferent?

In Federalist No. 84, Alexander Hamilton writes:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

I can see both sides of this argument:

  • By listing certain rights, other are ignored and those in power will infringe on those unlisted rights, even if they are included in the ninth and tenth amendments.
  • On the other hand, it is possible the government would have more easily infringed on our rights if they were not written down for posterity.
  • Maybe the Bill of Rights has made no difference in either direction as the Constitution is increasingly ignored and reinterpreted. The government has simultaneously grown its power and reduced our rights so that the Federalist argument against bills of rights and the Anti-Federalist argument for them turn out to be the same thing: different methods of limiting the growth of government, both of which failed over time, but only after working well for many decades.

I must admit that I have an ulterior motive in bringing this up. I am writing about this in my next book. I’d love to hear your thoughts. (And if you have a great idea or quote, I may even quote you in my book.) So please, comment below.

Adam Smith and Alexander Hamilton on income and sales taxes.

Back in the 1700s, income taxes were rare, yet more countries were adopting such revenue generating schemes. Adam Smith minced no words in attacking such “absurd and destructive” taxes. In a section of The Wealth of Nations titled “Taxes upon the Wages of Labour,” Adam Smith wonders why countries institute such income taxes:

Absurd and destructive as such taxes are, however, they take place in many countries.

Just a decade later, the Founding Fathers recognized that limits needed to be placed on government. One such limit would be to make it more difficult for government to raise our taxes. In Federalist #21, Alexander Hamilton argued that a consumption tax would effectively limit the size of government:

It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, “in political arithmetic, two and two do not always make four.” If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them.

We have seen how the income tax has accomplished the growth of government that duties were unable to do previously. I return to this chart of the size of government excluding defense dating back to 1910. Remember, the income tax amendment to the Constitution was ratified in 1913.

Click on image to zoom in:


Seeing the growth of government since the income tax appeared a century ago, Smith and Hamilton were correct in their assessments. Based on the above quotes and their other writings, Adam Smith and Alexander Hamilton would support a switch to a consumption tax, more commonly called a sales tax today or the proposed Fair Tax.

Congrats GOP. Now what do we do?

Congratulations to the GOP. They accomplished a historic election victory. The largest change in government since 1948.

However, I continue to fear for this country. Not because of the politicians, but because of the people. Of the 40-50% of those eligible to vote who actually voted, how many voted for liberty and limited government? The GOP won about 54% of the total vote, so maybe 54%. Maybe more, maybe less. But considering the majority of people didn’t even bother to vote, you are looking at a very small portion of the population who understands and cares enough to vote in favor of liberty and limited government. The number is 30% of the population, at best. Probably closer to 25% or even lower.

That is a very disappointing figure. While we must be involved in the political system, that will only help us on the margin. If 25% of the population supports limited government, nominating attractive candidates may boost that to 26% or 27%. Enough to temporarily defeat the political opponent, but not enough to fundamentally change our country.

The only long-term solution is education. We need to further the ideas of liberty, limited government, and checks and balances.We need to read, we need to write, and we need to share. With Amazon.com and social media, we have the tools to spread the knowledge. All it takes it effort.

So, now that the election is over, we have three main jobs:

  1. Make sure that government officials from both parties work toward smaller government.
  2. Begin recruiting for the next election.
  3. Educate ourselves and the public as to the benefits of limited government and checks and balances as described by our Constitution and elaborated upon in the Federalist Papers.

As you know, I’ll be focusing on the third item. I’ve already written one book warning the people of the evils of big government and the democratic demand for free gifts from the government. Many of you already know that I am working on a second book, the topic of which has not yet been announced. I have many more books planned, each of which advances the cause of liberty.

But while I will concentrate on the education portion, I will not be ignoring the first two parts. I will remain active in the political arena to ensure our governments (federal, state, and local) limit their size and scope and to help choose future candidates for political office.

We have a lot of work ahead of us. It has taken 100 years for our government to go from a very minor portion of our society to the huge behemoth it is today. It may take 100 years to reverse what has been done and we may not be alive to see our success. But succeed we must for the fate of our country and the world depend on us.

Eleftheria i thanatos!

My Totally Biased Required Reading List for Lovers of Liberty

The Federalist Papers: The best description of the principles of liberty and how to apply them.

The Road to Serfdom: Explanation of how big government leads to tyranny.

The Path to Tyranny: Show how big government has historically led to tyranny.

Atlas Shrugged: Shows what the consequences of government intervention on the American economy.

Please suggest other “Required” books in the comments.