Tuesday, July 01, 2008

A pleasant exchange, an uphill battle 

I must comment briefly on the salutary exchange between Dane Smith and Craig Westover in today's PioneerPress. �Both are good people, arguing their positions with a minimum of obfuscation or ad hominem attacks. �Would that the StarTribune promote such exchanges!

A retired colleague once wrote a manuscript entitled "To Promote the General Welfare". �That is of course a clause in the preamble to our Constitution. �The preamble is merely a context for the document; it does not carry the force of law. �Still, I thought it was useful to understand the context of what progressives wish, and I take from Smith's writing that he views "to promote the general welfare" as a legitimate function of government.

It also appears in Article I, section 8, in describing the powers and duties of Congress. �That link to Wikipedia includes a discussion of the battle between Alexander Hamilton and James Madison over whether the general welfare clause was expansive or to be taken in the narrower context as understood at the time (via the Articles of Confederation which the Constitution was to replace. �And the interpretation of this has been fought almost from the beginning, and regrettably to the Westover side (with which, unsurprisingly, I have greater sympathies) the battle has been uphill for almost 200 years.
The subject is the execution of those great powers on which the welfare of a Nation essentially depends. It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. �(McCulloch v Maryland (1819))�
However much we may wish to put that genie back in the bottle, we cannot. We argue in essence for a status quo ante, a very difficult place on which to stand even when you are right. �

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