Today, Aaron Worthing over at Patterico's Pontification's ticked off 13 factual errors in the Time magazine editor's piece and systematically addressed each one.
It's an excellent piece. Here's an excerpt that I think addresses some of Stengel's biggest errors:
False Claim #1: The Constitution does not limit the Federal Government.
The relevant passage:
If the Constitution was intended to limit the federal government, it sure doesn’t say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the “necessary and proper” clause, which delegates to Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Limited government indeed.
(Emphasis added.) [Update: If you want to check the veracity of my quotes from Stengel's piece, I suggest you use this single-page version of the piece, and then perform a Control-F search.]
Proof that he is wrong: The Constitution is filled with limitations on Federal Power. For instance, Article I, Section 9 says:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. [A.W.: They’re talking about the slave trade.]
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another….
No Title of Nobility shall be granted by the United States[.]
And then there is Article III, Section 3, limiting what the government can do to a traitor:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
It should be noted that Corruption of Blood is a doctrine by which the family of a traitor would suffer because of their alleged corrupted blood, so this is limiting the government’s ability to punish the children of a traitor for his or her treason.
And then there is the Bill of Rights. As I noted last time, Mr. Stengel considered them as of a piece with the original Constitution, an interpretation I concurred with. Every single one of them represents a limitation on federal power, so it is sufficient to only quote a few of them:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
So contrary to his suggestion, the Constitution does indeed limit the power of the Federal Government, a point most of us learned in elementary school.
False Claim #2: The Constitution is not law.
The relevant passage:
Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.
Proof that he is wrong: Again, the Constitution itself contradicts this claim. Article VI, Paragraph 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land[.]
And of course in my long fisking piece, I cite several passages from Marbury v. Madison that is on point as well, but the Constitution is enough.
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