Founders in the Crossfire

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Host: Good evening to our television audience, and welcome to this special edition of “Crossfire.” What makes it special is that we have with us tonight two Founders of America, James Madison and Alexander Hamilton. Gentlemen, it’s nice to have you with us.

Hamilton: Good to be here.

Madison: What’s this doo-hickey?

Host: A microphone, Mr. President. Gentlemen the Senate of the United States just brushed aside a constitutional point of order in respect of the Health Care Reform, specifically whether the Congress has the constitutional authority to require Americans to purchase health insurance. One of the architects of the measure, Senator Max Baucus, was quoted in the New York Times as saying the power is there under the clauses of the Constitution that grant Congress the power to regulate interstate commerce and to tax and spend for the general welfare. Now I understand you gentlemen have maintained almost a feud but, in any event, two very different views of these powers.

Madison: Well, I’d thought I disposed of the matter in the Federalist Papers, number 41. I noted the constitutional language granting Congress the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States.” But I labeled as a “misconstruction” the notion that this amounted to, as I put it at the time, “an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” I stressed that, as I put it, “the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon . . .”

Hamilton: There you go rattling on about that danged semi-colon, you old coot . . .

Host: General, please let the Founder finish his thought.

Madison: Well, you’re talking about the semi-colon that Gouverneur Morris tried to sneak in when he penned the final draft of the Constitution. Let me just say to our audience, Morris was a scoundrel. He tried to change the comma that appears after the word “excise” and change it to a semi-colon. That would have changed the meaning of the sentence so that the phrase about the “general welfare” would have been not a limitation on the taxing power but a general power to spend. You remember, General, we caught him out. Since then there’s a professor at Columbia, Philip Hamburger, who has pointed out relatively recently that one of your successors at Treasury, Secretary Albert Gallatin, actually testified before the House about this attempted subversion-by-grammar of our Constitution.

Hamilton: You and your confounded grammar. We’re building a nation, not a primer.

Madison: Don’t you mock me, general. This is about enumerated powers, which right after the “general welfare” clause are listed in the rest of Article 1, Section 8. This is the point I made in the Federalist: “For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”

Hamilton: Well, Mr. President, you may have vetoed the Bonus Bill, and President Monroe the Cumberland Road, and even Jackson the Maysville Road, because you couldn’t find the powers to enact them enumerated in the Constitution. But few other presidents have been so persnickety, and I rather doubt that our current president is going to veto national health care over your reading of the general welfare clause — or the interstate commerce clause, for that matter.

Madison: But the courts, general, the courts.

Hamilton: They wouldn’t dare.

Madison: Excuse me, general, but you’re talking to the victorious party in the lawsuit in which the Supreme Court asserted that very power.

Hamilton: Yes, well, Marbury was a petty little office seeker. I like the way Justice Holmes, in Northern Securities, once described these famed cases: Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

Madison: Maybe, general, maybe, but whose point does that make? History teaches us that individual cases can suddenly flare up and put things in an unexpected light. I bet not even you foresaw when you signed off on the interstate commerce clause that one day a president of the United States would try to use it to defend his thugs going into a butcher shop in Brooklyn and arresting the proprietors, among other things, for permitting a customer to select which chicken the customer wanted to purchase.

Hamilton: FDR was right to try, after that fiasco, to pack the Court.

Madison: My dear general, even the New York Times is predicting the health care reform will end up in court.

Hamilton: Well then, Mr. Obama ought to pack the court in advance, while the Democrats can still block a filibuster.

Madison: My dear general, there are times when I think that Vice President Burr had your number . . .

Hamilton: I demand satisfaction!

Host: Mr. President, surely you didn’t mean to say . . .

Hamilton: On my honor, I demand satisfaction . . .

Madison: My dear general, my fellow founder, please, don’t make the same mistake twice.

Hamilton: I demand satisfaction or . . .

Madison: Or what, general?

Hamilton: Or I will see you in court.

Mr. Lipsky, editor of, is the author of “The Citizen’s Constitution, An Annotated Guide,” which was brought out last month by Basic Books.

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