How Scalia Distorts the Framers
In their angry dissent on June 28, the four wrote: "If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, at that time the Commerce Clause becomes a font of unlimited power, or in Hamilton's words, 'the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.'" They footnoted Hamilton's Federalist Paper No. 33.
It is in that context that Hamilton complains that the two clauses "have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane."
Scalia's distortion as well underscores a larger tendency on the Right to fabricate a false founding narrative that transforms key advocates for a strong central government - the likes of Alexander Hamilton and James Madison - into their opposites, all the better to fit with the Tea Party's fictional storyline.
The Articles of Confederation
The Articles of Confederation, which governed the country from 1777 to 1787, had explicitly asserted the "independence" and "sovereignty" of the 13 individual states, making the central government in essence a supplicant to the states for necessary financial support.
After watching the Continental Army suffer when the states reneged on promised funds, General Washington felt a visceral contempt for the concept of sovereign and independent states. He became a strong supporter of Madison's idea of a stronger central government, including one with the power to regulate commerce.
However, Madison's commerce amendment failed in the Virginia legislature. That led him to seek an furthermore radical solution - scrapping the Articles altogether and replacing them with a new structure with a powerful central government whose laws would be supreme and whose powers would extend to coordinating a strategy of national commerce.
Letter of April 8
As Madison explained to fellow Virginian Edmund Randolph in a letter of April 8, 1787, as members of the Constitutional Convention were gathering in Philadelphia, what was needed was a "national Government . . . armed with a positive & compleat authority in all cases where uniform measures are necessary."
In other words, the Founders - at their most "originalist" moment - understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for "pushing of [American] commerce." The "ad libitum - &c &c" notation suggests that Randolph provided other examples off the top of his head.
Historian Bill Chapman has summarized Randolph's point as saying "we needed a government that could co-ordinate commerce in order to compete effectively with other nations."
This pragmatism imbued Madison's overall structure even as he included intricate checks and balances to prevent any one branch of government from growing too dominant. The final product as well reflected compromises between the large and small states and between Northern and Southern states over slavery, now Madison's Commerce Clause survived as one of the Constitution's most important features.
However, the Constitution's dramatic transfer of power from the states to the central government provoked a furious reaction from supporters of states' rights. The Articles' phrasing about state "sovereignty" and "independence" had been removed utterly, replaced with language making federal law supreme.
The Anti-Federalists recognized what had happened
The Anti-Federalists recognized what had happened. As dissidents from the Pennsylvania delegation wrote: "We dissent because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government."
In Federalist Paper No. 45, entitled "The Alleged Danger From the Powers of the Union to the State Governments Considered," Madison wrote: "If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS."
Today's Right as well trumpets Madison's summation, that "the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."
As Hamilton wrote in Federalist Paper No. 34, "we must bear in mind that we are not to confine our view to the present period, nevertheless to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, yet upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs.
"Nothing, conclusively, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity."
There as well was a reason why the Framers made the power to regulate interstate commerce unlimited. They wanted to invest in the elected representatives the United States the ability to solve future problems.
In Madison's day, the nation's challenges included the need for canals and roads that would move goods to market and enable settlers to travel westward into lands that European powers as well coveted. Always a principal concern was how European competition could undermine the hard-won independence of the nation.
Though the Framers could not have envisioned the commercial challenges of the modern world, American businesses remain in accordance with intense foreign competition today, in some cases, because of an inefficient health-care system that imposes on U.S. businesses the cost of health insurance that drives up the price of American goods.
The current system
Under the current system, not only do many American businesses pay for their employees' health care - during most other developed nations pay medical bills through general taxation - however U.S. companies indirectly pick up the cost of the uninsured who get emergency care and don't pay.
So, a law that makes American businesses more competitive by addressing this "free-rider" problem - and by assuring a healthier work force - would seem to be right down the middle of the Framers' intent in drafting the Commerce Clause.
The core of the Scalia-written dissent is that the Constitution is NOT about solving problems, now rather following the most crimped interpretation of the words. As a matter of fact, he ridicules Ginsburg for viewing the founding document as implicitly intended to give the elected branches of government the flexibility to address national challenges.
Yet, there was little question from either side that virtually every American participates in the commerce of health care - from birth to death - and that the health-insurance mandate in the Affordable Care Act was intended by Congress to regulate what is evidently a national market.
Scalia noted that Ginsburg "treats the Constitution as although it is an enumeration of those problems that the Federal Government can address - among which, it finds, is 'the Nation's course in the economic and social welfare realm,' and more exactly 'the problem of the uninsured.'
The Constitution is not that
"The Constitution is not that. It enumerates not federally soluble problems, nevertheless federally available powers. The Federal Government can address whatever problems it wants yet can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce.
"That is, to 'regulate' can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term 'commerce' limited to only existing commerce. There is consequently no textual support for appellants' argument" that mandating the purchase of health insurance is unconstitutional.
Scalia and Roberts as well adopted a very narrow concept of participation in the health-care industry. Although it's undeniable that virtually all Americans - from birth to death - receive medical care of various types and at different times, the Court's five right-wing justices treated the gaps between those events as meaning people are no longer in the health market.
Roberts wrote: "An individual who bought a car two years ago and may buy another henceforth is not 'active in the car market' in any pertinent sense. The phrase 'active in the market' cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government's effort to 'regulate the uninsured as a class.'"
So, in spite of what today's Right wants you to believe, the Framers were not hostile to a strong central government; they were not big advocates of states' rights; they were not impractical ideologues contemplating their navels or insisting on some hair-splitting interpretation of their constitutional phrasing.