One thing one learns in dealing with modern day authoritarian-conservatives, is that they are not nearly as conservative of principles as they claim to be. American principle has never been so cut and dry as they would make it and the notion of the application of the constitution as being a living, evolving understanding is not a new invention. When dealing with genuine conservatives often their Point of View needs to be considered because it is true, but when arguing with authoritarian "neo-con" or "pseudo-libertarian" demagogues, the arguments are much more difficult because these arguments reflect corrupt sophistry and misuse of source material. I've been examing the various threads of conservativism in the second half of the 20th century and comparing them to the sources that they claim to hail from, in the process I found that some so-called "conservatives" corrupt (twist and distort) the material they used to justify their positions and are arguing from corrupt versions of history and from distorted concepts. In the case of libertarianism, specifically, some of the most vocally voiced opinions are based on this sort of analysis. In some cases the authors seem to be guilty of nothing more than importing their own ideological arguments and giving them a historical gloss.
I am specifically referring to the notion that the founding fathers were "strict constructionists." A book I have on the Nullification Controversy explains that: "Strict constructionism argues that Congress only possesses expressly enumerated prerogatives. The elastic clauses give no additional authority. The enumerated powers alone define the ways in which congress could promote the 'common defense and general welfare.' The 'necessary and proper clause'" [solely] "gives Congress Authority to use means indispensible to carry out enumerated powers." The author goes on to give the example of strict constructionism; "The Bank Charter was unconstitutional because taxes could be collected without a bank. Internal improvements were unconstitutional because the power to appropriate money for building roads and canals was not one of the enumerated powers which determined how Congress could further the common defense and general welfare."
But who argued Strict Constructionism? Was it Jefferson? No. Jackson argued some elements of Strict Constructionism, but not others. The only place where strict constructionism ever dominated was in South Carolina during the slavery controversy when South Carlinian radicals argued that the Federal Government should have no power over their own "peculiar institution" while they should have the power to force the rest of the country to accept slavery, return slaves to their property owners, and to oppress and tyrannize their own anti-slavery minorities, blacks and black seamen. South Carolinians argued that their state should have the power to nullify any laws or legal decisions they deemed 'unconstitutional.'
Strict constructionism arose as an interpretation out of a conflict over the "Alien and Sedition Acts" during the Adams administration and two polemics, that were published in Kentucky and Virginia as Resolutions by Jefferson and Madison. The resolutions attacked the Sedition Act, which extended the powers of the federal government over individuals inside the states. The resolutions declared that the Constitution was a "compact between the states." According to that view it was basically like a treaty between sovereign powers. No powers were given not expressly given. Ironically the motivation of limiting the Federal Government was to stop Federal tyranny over individual rights. The other states refused to support these acts, noting that this view constituted a minority view. Alexander Hamilton and Adams obviously disagreed about the limits of Federal power.
The Kentucky and Virginia Resolutions were really polemics, because even Jefferson and Madison were not strict constructionists when it came down to practice. The Louisiana purchase was justified by the elastic clauses. Certainly Adams was not a Strict Constructionist. Andrew Jackson opposed the National Bank, but his opposition was largely on political and ideological grounds. He just feared that it would lead to an entrenched class of idle rich drawn from the profiteers of such a bank. His opinion on the binding power of the Constitution was stated aptly:
http://en.wikipedia.org/wiki/Kentucky_and_Virginia_Resolutions
Decades after the Resolutions were published, during the "nullification crisis" of 1828–1832, the notion of "strict constructionalism" and the ideas of the Constitution as a "compact" became the source for a constitutional crises. "South Carolina threatened to nullify a federal law regarding tariffs."
But the nullifiers were never even more than a bare majority even in their own State. Strict Constructionism was not the initial philosophy of the great Politician John Calhoun, for instance. Even Calhoun argued that the necessary and proper clause and the "common defense and general welfare" clause gave the National Government all the reason necessary to pursue genuinely national and common causes. Going by his principles, canal and road construction was just fine as long as it benefited the country as a whole. Applying his principles to the present moment, he would have opposed earmarks for individual states on the grounds that they don't benefit the country as a whole but only one region. But going by his principles welfare, a national health insurance program, etceteras... because of the "elastic clause" would have been just fine. Strict constructionists would have opposed such things because they are not "expressly enumerated."
But majority opinion about the Constitution has always been one of "broad Constructionism" which basically holds that while the 1787 Constitution "the contracting agents delegated power"and "reserved the rest to the States" the delegated powers included not only the enumerated powers but the powers to carry out those powers including such power as needed to promote the 'common defense and general welfare.'"
Andrew Jackson issued a resounding proclamation against the doctrine of nullification," stating:
"I consider...the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." He also denied the right of secession: "The Constitution...forms a government not a league...To say that any State may at pleasure secede from the Union is to say that the United States is not a nation."
Calhoun himself is the author of the article which explains why the plain text of the constitution nullifies nullifier and strict construction theories. Even Calhoun could never rescinded the arguments which undermined his arguments about nullification. When he once argued that National Sovereignity gave ultimate power to the 3/4 of the States with the power to change the Constitution and interpret its meaning He wrote
"by an express provision of the Constitution, it may be amended or changed by 3/4 of the States and thus each State by ascenting to the Constitution with this provision has modified its original right as a sovereign, of making its individual assent necessary to any change in the political condition; and by becoming a member of the Union has placed this important power in the hands of 3/4 of the States in whom the highest power known to the constitution actually resides."
Later, Abraham Lincoln also rejected the compact theory saying the Constitution was a binding contract among the states and no contract can be changed unilaterally by one party. Again, for the Constitution to be changed, 3/4 of the States would have had to agree. For the South to Secede they would have to do so peacefully and with a super-majority. The underlying principle here is that consensus and super-majority are necessary for major change.
Historians have been ambivalent about the resolutions because of their long-term impact. As Jefferson's biographer explains[Wikipedia]:
"Called forth by oppressive legislation of the national government, notably the Alien and Sedition Laws, they represented a vigorous defense of the principles of freedom and self-government under the United States Constitution. But since the defense involved an appeal to principles of state rights, the resolutions struck a line of argument potentially as dangerous to the Union as were the odious laws to the freedom with which it was identified. One hysteria tended to produce another. A crisis of freedom threatened to become a crisis of Union. The latter was deferred in 1798-1800, but it would return, and when it did the principles Jefferson had invoked against the Alien and Sedition Laws would sustain delusions of state sovereignty fully as violent as the Federalist delusions he had combated."
Both the notions of the Constitution as a limited "compact" and the notion of "strict constructionism" were minority opinions, only held majority opinion by certain quarters in the Slavery South who feared the power of the North to end slavery. Where the Kentucky and Virginia resolutions were promoted to protect individual rights, these people promoted the Civil war to protect their collective property rights over individuals.
Now we get these same ideas resurrected as if they'd been the majority view of the "founding fathers." What gives here? It's the same deal as with the "nullifiers" of old, only the new "nullifiers" want to exert that power as individuals.
chris