Legal Commentary

What The Tea Party Believes, What The Founders Believed

By Big Tent Democrat

I've not been a follower of the Tea Party, so I do not profess to know what they think, but I have studied the Constitutional debates, and feel confident that Peter Berkowitz is misstating the views of the authors of The Federalist Papers:

Whether members have read much or little of The Federalist, the tea party movement's focus on keeping government within bounds and answerable to the people reflects the devotion to limited government embodied in the Constitution. One reason this is poorly understood among our best educated citizens is that American politics is poorly taught at the universities that credentialed them. Indeed, even as the tea party calls for the return to constitutional basics, our universities neglect The Federalist and its classic exposition of constitutional principles.

It seems to me it is Mr. Berkowitz who has neglected the Federalist Papers and the thoughts of the authors. Indeed, I would think that a review of Alexander Hamilton's defense of the First Bank of the United States should be added to Mr. Berkowitz's reading material:

[I]t appears to the Secretary of the Treasury that this general principle is inherent in the very definition of government, and essential to every step of progress to be made by that of the United States, namely: That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.

This principle, in its application to government in general, would be admitted as an axiom; and it will be incumbent upon those who may incline to deny it, to prove a distinction, and to show that a rule which, in the general system of things, is essential to the preservation of the social order, is inapplicable to the United States.

[. . .] If it would be necessary to bring proof to a proposition so clear, as that which affirms that the powers of the federal government, as to its objects, were sovereign, there is a clause of its Constitution which would be decisive. It is that which declares that the Constitution, and the laws of the United States made in pursuance of it, and all treaties made, or which shall be made, under their authority, shall be the serene law of the land. The power which can create the supreme law of the land in any case, is doubtless sovereign as to such case.

Mr. Berkowitz and the Tea Party will need to find its champions for limited government from persons who did not author The Federalist Papers.

Speaking for me only

Full post as published by TalkLeft on October 17, 2010 (boomark / email).