WEBVTT NOTE The Constitution: Four Disputed Clauses 1 00:00:00.000 --> 00:00:04.000 Today we're talking about the Constitution and obviously it's a gigantic topic. 2 00:00:04.000 --> 00:00:12.000 So the way I've chosen to handle it is to really direct our attention to four areas of the Constitution 3 00:00:12.000 --> 00:00:17.000 that have been the source of quite a bit of controversy over the years. 4 00:00:17.000 --> 00:00:22.000 These are really, really these three are the areas that are the most contested. 5 00:00:22.000 --> 00:00:26.000 But I add the War Powers issue because it's of current-day relevance 6 00:00:26.000 --> 00:00:30.000 and because it came up last week and I pledged that I would say something about it. 7 00:00:30.000 --> 00:00:33.000 So I want to cover these four things in this order. 8 00:00:33.000 --> 00:00:37.000 Without really giving too much background into the Constitutional Convention 9 00:00:37.000 --> 00:00:42.000 and the view that the previous document, the Articles of Confederation, 10 00:00:42.000 --> 00:00:46.000 had certain difficulties and shortcomings, 11 00:00:46.000 --> 00:00:48.000 that may be common knowledge, maybe not. 12 00:00:48.000 --> 00:00:52.000 It's briefly discussed in my book, but what I'm doing, as I say, 13 00:00:52.000 --> 00:01:00.000 What I'm doing, as I say, is mainly trying to focus in, focus our discussion on specific things rather than trying to do a sweeping overview of everything. 14 00:01:00.000 --> 00:01:09.000 So I'm going to take for granted that you sort of followed the discussion up to this point that as of 1787 there is a U.S. Constitution drafted 15 00:01:09.000 --> 00:01:18.000 and that that document is then submitted to the states to be ratified and by 1788 the requisite nine states have done so 16 00:01:18.000 --> 00:01:23.000 and by 1790 all the original 13 states have ratified it. 17 00:01:23.000 --> 00:01:27.000 But as I say, I want to focus on four clauses in particular 18 00:01:27.000 --> 00:01:31.000 whose interpretation has been the source of controversy 19 00:01:31.000 --> 00:01:33.000 and continues to be the source of controversy. 20 00:01:33.000 --> 00:01:38.000 Every time there's a nominee to the Supreme Court, 21 00:01:38.000 --> 00:01:42.000 everybody wants to know where does he stand on these particular clauses. 22 00:01:42.000 --> 00:01:44.000 Particularly the Commerce Clause. 23 00:01:44.000 --> 00:01:47.000 That's the one that comes up most often when somebody is being confirmed to the Supreme Court. 24 00:01:47.000 --> 00:01:52.080 in Court, What's Your View of the Commerce Clause, and you wind up getting into fairly 25 00:01:52.080 --> 00:01:54.800 technical discussions. 26 00:01:54.800 --> 00:02:01.100 Well let's start with this issue of war powers, and particularly the question of how are the 27 00:02:01.100 --> 00:02:07.440 powers involved in the prosecution of war apportioned among the Congress as versus the 28 00:02:07.440 --> 00:02:08.680 President. 29 00:02:08.680 --> 00:02:13.480 Now what I suggest in my little section on this, which is at the end of my Constitution 30 00:02:13.480 --> 00:02:19.480 Chapter, is that the President does not actually have under the Constitution the kind of expansive 31 00:02:19.480 --> 00:02:24.600 powers that it's taken for granted today that he has, that he was not intended to have these 32 00:02:24.600 --> 00:02:31.540 powers. Article 2, Section 2 of the Constitution refers to the President as the Commander-in-Chief 33 00:02:31.540 --> 00:02:38.040 of the Army and Navy of the United States. But we need to understand what that means. 34 00:02:38.040 --> 00:02:42.400 What does it mean for him to be the Commander-in-Chief? As I indicated briefly last time, what that 35 00:02:42.400 --> 00:02:47.400 What that meant is that the president directs a war once it has been declared. 36 00:02:47.400 --> 00:02:53.400 This is because of the inconvenience of having hundreds of congressmen trying to pick out targets. 37 00:02:53.400 --> 00:02:55.400 Could you imagine how that would go? 38 00:02:55.400 --> 00:03:03.400 So the idea is that we need to have this responsibility in effect monopolized by the executive branch. 39 00:03:03.400 --> 00:03:06.400 But that's once the war has been declared. 40 00:03:06.400 --> 00:03:10.400 It does not mean the president himself has the power to declare war 41 00:03:10.400 --> 00:03:15.400 because Article 1, Section 8 of the Constitution declares that the Congress has the power to declare war. 42 00:03:15.400 --> 00:03:24.400 Now, I also indicated very briefly last time that the framers of the Constitution distinguish between a power to declare war and a power to make war. 43 00:03:24.400 --> 00:03:30.400 The President is deprived of the power to declare war. That power is reposed in the Congress. 44 00:03:30.400 --> 00:03:35.400 But he is not strictly deprived under the Constitution of the power to make war. 45 00:03:35.400 --> 00:03:47.400 What's meant by that is that if there were some sudden surprise attack on the United States territory, the president could repel that attack immediately without consulting Congress. 46 00:03:47.400 --> 00:03:56.400 But in terms of initiating a war under any other types of circumstances, the president would have to go to Congress for a declaration of war. 47 00:03:56.400 --> 00:04:03.400 And it's interesting to note, by the way, of course, that in the case of World War II, where there actually was an attack on American territory, 48 00:04:03.400 --> 00:04:14.400 When there was that attack on Pearl Harbor, even in that case, President Roosevelt went to Congress looking for a declaration of war, since he was not interested in simply repelling the one attack. 49 00:04:14.400 --> 00:04:20.400 He wanted to actually go on the offensive and declare a full-scale war. So he got the consent of Congress for that. 50 00:04:20.400 --> 00:04:29.400 Well, you'll note in my book, so I don't want to repeat myself too much, just how few powers related to foreign policy the President was given on his own. 51 00:04:29.400 --> 00:04:34.400 A lot of the powers are given to Congress or are given to Congress and the President jointly. 52 00:04:34.400 --> 00:04:41.400 But in terms of powers that are granted to the President exclusively, we see only two relating to foreign affairs. 53 00:04:41.400 --> 00:04:49.400 His being Commander-in-Chief of the Armed Forces, as we've already seen, and the power to receive ambassadors, which is not a particularly glamorous power. 54 00:04:49.400 --> 00:05:01.400 And I also note in the Constitution chapter that the framers of the Constitution explicitly noted that they had no desire to model the American government on the British one. 55 00:05:01.400 --> 00:05:07.400 And they pointed out that in the case of the British government, the monarch had the power to declare war. 56 00:05:07.400 --> 00:05:12.400 And we don't believe that that is a good model on which to base a free society. 57 00:05:12.400 --> 00:05:21.400 James Madison, who is sometimes rightly or wrongly called the father of the Constitution, wrote to Thomas Jefferson as follows. 58 00:05:21.400 --> 00:05:32.400 He said, The Constitution supposes what the history of all governments demonstrates, that the executive is the branch of power most interested in war and most prone to it. 59 00:05:32.400 --> 00:05:37.400 It has accordingly, with studied care, vested the question of war in the legislature. 60 00:05:37.400 --> 00:05:46.400 Elsewhere, Madison remarked, it has grown into an axiom that the executive is the department of power most distinguished by its propensity to war. 61 00:05:46.400 --> 00:05:53.400 Hence, it is the practice of all states in proportion as they are free to disarm this propensity of its influence. 62 00:05:53.400 --> 00:05:58.400 At the Constitutional Convention itself, as the document was being drafted, 63 00:05:58.400 --> 00:06:03.900 Piers Butler was for vesting the power to declare war in the President, who he said 64 00:06:03.900 --> 00:06:08.440 will have all the requisite qualities and will not make war except when the nation will 65 00:06:08.440 --> 00:06:10.520 support it. 66 00:06:10.520 --> 00:06:14.280 That motion did not even receive a second. 67 00:06:14.280 --> 00:06:19.420 At the Pennsylvania Ratifying Convention, James Wilson assured the delegates as follows 68 00:06:19.420 --> 00:06:22.400 that this system will not hurry us into war. 69 00:06:22.400 --> 00:06:24.960 It is calculated to guard against it. 70 00:06:24.960 --> 00:06:34.960 It will not be in the power of a single man or a single body of men to involve us in such distress, for the important power of declaring war is vested in the legislature at large. 71 00:06:34.960 --> 00:06:38.960 This declaration must be made with the concurrence of the House of Representatives. 72 00:06:38.960 --> 00:06:44.960 From this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war. 73 00:06:44.960 --> 00:06:52.960 Alexander Hamilton, writing in the Federalist Papers, which were written as a series of articles to persuade New York to ratify, 74 00:06:52.960 --> 00:06:58.640 Hamilton explained that the President's authority would be nominally the same with that of the 75 00:06:58.640 --> 00:07:03.560 King of Great Britain, but in substance much inferior to it. It would amount to nothing 76 00:07:03.560 --> 00:07:08.160 more than the supreme command and direction of the military and naval forces as first 77 00:07:08.160 --> 00:07:13.020 general and admiral of the Confederacy, while that of the British King extends to the declaring 78 00:07:13.020 --> 00:07:18.240 of war and to the raising and regulating of fleets and armies, all which by the Constitution 79 00:07:18.240 --> 00:07:22.360 under consideration would appertain to the legislature. 80 00:07:22.360 --> 00:07:26.800 And finally Abraham Lincoln, who obviously was not at the Constitutional Convention, 81 00:07:26.800 --> 00:07:32.560 but nevertheless made an interesting observation about what Article 2, Section 2 should mean. 82 00:07:32.560 --> 00:07:34.360 Lincoln said this, 83 00:07:34.360 --> 00:07:38.760 Allow the president to invade a neighboring nation whenever he shall deem it necessary 84 00:07:38.760 --> 00:07:44.440 to repel an invasion, and you allow him to do so whenever he may choose to say he deems 85 00:07:44.440 --> 00:07:49.960 it necessary for such purpose, and you allow him to make war at pleasure. 86 00:07:49.960 --> 00:07:56.960 It is funny to see if you can fix any limit to his power in this respect after you have given him so much as you propose. 87 00:07:56.960 --> 00:08:04.960 If today he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? 88 00:08:04.960 --> 00:08:13.960 You may say to him, I see no probability of the British invading us, but he will say to you, be silent. I see it if you don't. 89 00:08:13.960 --> 00:08:20.960 The provision of the Constitution, this is still Lincoln, giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. 90 00:08:20.960 --> 00:08:29.960 Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. 91 00:08:29.960 --> 00:08:40.960 This our Convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. 92 00:08:40.960 --> 00:08:49.960 But your view, he's speaking with an antagonist, destroys the whole matter and places our president where kings have always stood. 93 00:08:49.960 --> 00:08:59.960 John Bassett Moore was a great authority on international law who among other credentials occupied the first professorship of international law at Columbia University. 94 00:08:59.960 --> 00:09:01.960 And he said in the early 20th century, 95 00:09:01.960 --> 00:09:31.960 There can hardly be room for doubt that the framers of the Constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory and killing their soldiers and citizens, all according to his own notions of the fitness of things, as long as he refrained from calling his action war or persisted in calling it peace. 96 00:09:31.960 --> 00:09:37.960 In the history of the early republic, in terms of presidential war powers, which unfortunately we don't have the time to do, 97 00:09:37.960 --> 00:09:40.960 but if you're interested, I can link you to an article I've written on this subject, 98 00:09:40.960 --> 00:09:47.960 we will find that in the history of the early republic, presidents consistently deferring to Congress in matters of peace and war. 99 00:09:47.960 --> 00:09:53.960 Even in cases where some have alleged that the presidents were active, sometimes in the 20th century, 100 00:09:53.960 --> 00:09:58.960 looking for precedents to support the power of the president to send troops anywhere he wants, 101 00:09:58.960 --> 00:10:01.960 You will find some controversialists who will say, 102 00:10:01.960 --> 00:10:07.960 well, the presidents have always done this in the Quasi-War with France in the late 1790s, 103 00:10:07.960 --> 00:10:13.960 in Indian battles, in the battles with the Barbary Pirates in North Africa. 104 00:10:13.960 --> 00:10:16.960 It's alleged that the presidents acted on their own. 105 00:10:16.960 --> 00:10:23.960 I've shown in a long article I wrote, which will also appear in my next book in the spring, 106 00:10:23.960 --> 00:10:29.120 These are not serious examples. We can talk about that in the discussion if you like. 107 00:10:29.120 --> 00:10:34.600 But the presidents were extremely deferential toward Congress in the early republic and 108 00:10:34.600 --> 00:10:36.960 pretty much all the way up through 1950. 109 00:10:36.960 --> 00:10:42.760 Well, I also mentioned briefly at the end of last time that it's very common to hear 110 00:10:42.760 --> 00:10:49.580 it alleged that the president has in fact hundreds of times before 1950, hundreds of 111 00:10:49.580 --> 00:11:11.580 Well, I suggested last time that these hundreds of examples are really not particularly impressive historically, and I'd like to give some evidence of that claim. 112 00:11:11.580 --> 00:11:16.580 I'm going to skip, again, the historical stuff. We just don't have time for it. I want to stick strictly to the Constitution. 113 00:11:16.580 --> 00:11:25.580 For instance, we have this claim, at the time of the Korean War, a number of congressmen came forth with a statement saying, 114 00:11:25.580 --> 00:11:37.580 History will show that on more than 100 occasions in the life of this republic, the president as commander-in-chief has ordered the fleet or the troops to do certain things which involve the risk of war without getting the consent of congress. 115 00:11:37.580 --> 00:11:40.580 The State Department in 1966 said, 116 00:11:40.580 --> 00:11:44.580 Since the Constitution was adopted, there have been at least 125 instances 117 00:11:44.580 --> 00:11:47.580 in which the President has ordered the armed forces to take action 118 00:11:47.580 --> 00:11:52.580 or maintain positions abroad without obtaining prior Congressional authorization. 119 00:11:52.580 --> 00:11:57.580 Well, Edward S. Corwin, who was one of the great Presidential scholars of the 20th century, 120 00:11:57.580 --> 00:12:03.580 pointed out that this lengthy list of alleged precedents, over 100 or 125, 121 00:12:03.580 --> 00:12:09.940 25, consisted mainly of fights with pirates, landings of small naval contingents on barbarous 122 00:12:09.940 --> 00:12:14.980 or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or 123 00:12:14.980 --> 00:12:20.340 cattle rustlers across the Mexican border, and the like. Well, that is not quite the 124 00:12:20.340 --> 00:12:26.380 same thing as, again, sending a million Americans halfway across the world to overthrow a foreign 125 00:12:26.380 --> 00:12:32.180 government by force. I might also mention, by the way, sorry I overlooked this, but I 126 00:12:32.180 --> 00:12:41.680 I might also make brief mention as an interesting example of how presidential war powers were conceived of in the 19th century, the great example of the Mexican War, just briefly. 127 00:12:41.680 --> 00:12:53.680 1846 to 1848 is the war with Mexico. President James Paul called for war on Mexico after announcing to Congress that Mexico had shed American blood upon American soil. 128 00:12:53.680 --> 00:12:59.680 American troops had been fired upon. Congress, upon hearing this, voted overwhelmingly for war. 129 00:12:59.680 --> 00:13:09.680 And then, as the war progressed, a congressman, an obscure congressman at that time, named Abraham Lincoln, from Illinois, introduced what he called the spot resolution. 130 00:13:09.680 --> 00:13:18.680 He wanted to know on what spot exactly were Americans fired. Was it in fact on indisputably American soil? 131 00:13:18.680 --> 00:13:27.680 Or were they fired upon in fact in precisely the area that was disputed with Mexico, the area between the Nueces and Rio Grande rivers? 132 00:13:27.680 --> 00:13:36.680 Well, of course, it was in the disputed area, which was a fact that President Polk had neglected to disclose at the time of urging a declaration of war. 133 00:13:36.680 --> 00:13:39.680 And so, Senator John Middleton Clayton wondered, 134 00:13:39.680 --> 00:13:46.680 I do not see on what principle it can be shown that the President, without consulting Congress and obtaining its sanction for the procedure, 135 00:13:46.680 --> 00:13:53.680 has a right to send an army to take up a position where, as it must have been foreseen, the inevitable consequence would be war. 136 00:13:53.680 --> 00:13:56.680 What were these troops doing down there in the first place? 137 00:13:56.680 --> 00:14:02.680 In 1848 Congress voted to censure President Polk, arguing the President had abused his power. 138 00:14:02.680 --> 00:14:14.680 The war resolution said, the war censure resolution said that the President had unnecessarily and unconstitutionally begun the war. 139 00:14:19.680 --> 00:14:22.680 So that's my overview of this war powers matter. 140 00:14:22.680 --> 00:14:29.680 What I want to suggest is that the original intent is quite clear that the President has to get the consent of Congress in such matters. 141 00:14:29.680 --> 00:14:35.680 The second area that I'd like to cover involves something called the Commerce Clause. 142 00:14:35.680 --> 00:14:43.680 Article 1, Section 8, Clause 3 of the Constitution grants Congress the power to, and these are the words of the Constitution, 143 00:14:43.680 --> 00:14:49.680 regulate commerce with foreign nations and among the several states and with the Indian tribes. 144 00:14:49.680 --> 00:14:58.680 Now, so much of the federal government's power today rests upon this particular clause and its interpretation. 145 00:14:58.680 --> 00:15:02.680 At one time this clause was interpreted very, very narrowly, as we'll see. 146 00:15:02.680 --> 00:15:09.680 Today it's been interpreted extremely broadly, which is why it always comes up, or very often comes up, 147 00:15:09.680 --> 00:15:16.680 when proposed additions to the Supreme Court are nominated. People want to know where they stand on this clause. 148 00:15:16.680 --> 00:15:20.680 Well, it's important to look at what do these words mean? 149 00:15:20.680 --> 00:15:23.440 What does the word commerce mean in the 18th century? 150 00:15:23.440 --> 00:15:25.360 What was meant by this clause? 151 00:15:25.360 --> 00:15:30.680 What did the drafters think they were doing with this clause? 152 00:15:30.680 --> 00:15:35.640 Now we have in the clause the phrase in particular that Congress has the power to regulate commerce 153 00:15:35.640 --> 00:15:40.280 and the real sticking point here isn't the part about the foreign nations or the Indian 154 00:15:40.280 --> 00:15:41.280 tribes. 155 00:15:41.280 --> 00:15:43.700 It is regulating commerce among the several states. 156 00:15:43.700 --> 00:15:46.200 What does it mean to regulate commerce among the several states? 157 00:15:46.200 --> 00:15:49.200 What did the word commerce mean? 158 00:15:49.200 --> 00:15:53.200 Well, some people have argued that the word commerce had a very narrow meaning. 159 00:15:53.200 --> 00:15:57.200 The commerce was meant to mean only trade or exchange. 160 00:15:57.200 --> 00:16:01.200 That's what commerce was, that it was just a synonym for trade or exchange. 161 00:16:01.200 --> 00:16:05.200 Others have suggested that the word had a broader meaning, 162 00:16:05.200 --> 00:16:08.200 that commerce also extended to manufacturing, 163 00:16:08.200 --> 00:16:14.200 because manufacturing involves the production of things that are subsequently traded or exchanged. 164 00:16:14.200 --> 00:16:18.200 Still others have suggested an even broader definition of the word commerce 165 00:16:18.200 --> 00:16:22.200 to include all gainful activity whatsoever. 166 00:16:22.200 --> 00:16:25.200 Well, it matters which one of these is the correct definition 167 00:16:25.200 --> 00:16:31.200 because if Congress has the power to regulate all gainful activity whatsoever 168 00:16:31.200 --> 00:16:34.200 that is much, much more power than simply to say it has the power 169 00:16:34.200 --> 00:16:38.200 to regulate trade or exchange among the several states. 170 00:16:38.200 --> 00:16:41.200 So what does it in fact, what was it intended to mean? 171 00:16:41.200 --> 00:16:53.200 Well, it turns out that it is impossible to find an example of any reference to the word commerce at the Constitutional Convention in which it clearly refers to anything other than mere trade. 172 00:16:53.200 --> 00:17:04.200 In the Federalist papers, the word is never used in the 63 times it appears in a way that clearly refers to anything other than trade or exchange. 173 00:17:04.200 --> 00:17:13.200 So it seems that on the basis of this textual evidence, the narrow interpretation argument has a tremendous amount to recommend it. 174 00:17:13.200 --> 00:17:17.200 In fact, James Madison later observed, and I'm quoting Madison, 175 00:17:17.200 --> 00:17:26.200 if in citing the Constitution the word trade was put in the place of commerce, the word foreign made it synonymous with commerce. 176 00:17:26.200 --> 00:17:32.200 Trade and commerce are in fact used indiscriminately, both in books and in conversation. 177 00:17:32.200 --> 00:17:39.200 Randy Barnett of Boston University Law School said recently, about ten years ago, 178 00:17:39.200 --> 00:17:45.200 Having examined every use of the term commerce that appears in the reports of the state ratifying conventions, 179 00:17:45.200 --> 00:17:52.200 I found that the term was uniformly used to refer to trade or exchange rather than all gainful activity. 180 00:17:52.200 --> 00:17:59.200 So if commerce refers then to trade or exchange, what does among the states mean? 181 00:17:59.200 --> 00:18:04.200 The Federal Government has the power to regulate commerce among the states. What does among the states mean? 182 00:18:04.200 --> 00:18:15.200 The scholarly consensus holds that among the states meant that it could regulate commerce that occurs between one state and another, sensibly enough. 183 00:18:15.200 --> 00:18:21.200 Among the states involves commerce involving one state with another. 184 00:18:21.200 --> 00:18:27.200 It does not mean that the Federal Government can regulate commerce that occurs entirely within one state 185 00:18:27.200 --> 00:18:31.200 or commerce that simply concerns or has effects on another state. 186 00:18:31.200 --> 00:18:39.200 The understanding was that Congress has the power to regulate commerce that occurs between states. 187 00:18:39.200 --> 00:18:45.200 Now, Thomas Jefferson was only repeating the intentions of the framers of the Constitution when he explained 188 00:18:45.200 --> 00:18:52.200 that the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a state, 189 00:18:52.200 --> 00:18:57.700 which remains exclusively with its own legislature, but to its external commerce only. 190 00:18:57.700 --> 00:19:02.700 That is to say, its commerce with another state or with foreign nations or with the Indian tribes. 191 00:19:02.700 --> 00:19:08.200 Likewise, Madison wrote that among the several states, this phrase, 192 00:19:08.200 --> 00:19:14.200 grew out of the abuses of the power by the importing states in taxing the non-importing. 193 00:19:14.200 --> 00:19:19.200 And here's the key, and was intended as a negative and preventive provision 194 00:19:19.200 --> 00:19:27.200 against injustice among the states themselves rather than as a power to be used for the positive purposes of the general government. 195 00:19:27.200 --> 00:19:32.200 So in other words, the clause was meant to provide for a giant free trade zone throughout the United States 196 00:19:32.200 --> 00:19:41.200 and to prevent the obstruction of commerce by the states in the form of discriminatory taxes against the goods of other states. 197 00:19:41.200 --> 00:19:52.200 Well, a fateful decision, Supreme Court decision was rendered in 1824, called Gibbons vs. Ogden, by Chief Justice John Marshall. 198 00:19:52.200 --> 00:20:04.200 John Marshall introduced the idea that the Commerce Clause, in fact, not only involves the regulation of commerce among states, 199 00:20:04.200 --> 00:20:08.200 but also the regulation of commerce that affects other states, 200 00:20:08.200 --> 00:20:12.200 that occurs entirely within one state but affects other states. 201 00:20:12.200 --> 00:20:18.200 Well, Raoul Berger, who was a Harvard professor of constitutional law for many years, 202 00:20:18.200 --> 00:20:25.200 describes this as a naked assertion unaccompanied by legislative history or precedential explanation. 203 00:20:25.200 --> 00:20:30.200 That's a very fancy way of saying that it's a lot of, I don't know, 204 00:20:30.200 --> 00:20:36.200 I don't want to say a bad word, but it's just a lot of dog doo-doo, I guess, this claim. 205 00:20:36.200 --> 00:20:42.200 Because as Madison and Jefferson said, technically, in a certain cosmic sense, 206 00:20:42.200 --> 00:20:45.200 everything affects everything else. 207 00:20:45.200 --> 00:20:50.200 So if you begin to say that the federal government can regulate commerce that affects other states, 208 00:20:50.200 --> 00:20:55.200 well then, you know, obviously they can interpret it to allow for any intervention in the economy. 209 00:20:55.200 --> 00:21:06.200 In the 20th century, this idea was revised as to say that the federal government could regulate commerce that has a substantial effect on other states rather than just simply an effect. 210 00:21:06.200 --> 00:21:15.200 But again, there's no support for this in any of the Constitutional Convention, the ratifying conventions, nothing. There's no support for that. 211 00:21:15.200 --> 00:21:26.200 Well, by the time of the 1940s, early 1940s, the Commerce Clause was being cited to justify Federal powers that the framers could scarcely have believed. 212 00:21:26.200 --> 00:21:33.200 I give an example in a later chapter of a famous case from 1942 called Wickard v. Filburn. 213 00:21:33.200 --> 00:21:40.200 This case involved a farmer who was growing wheat on his own land for his own use. 214 00:21:40.200 --> 00:21:45.440 and this was described as interstate commerce and therefore subject to federal regulation 215 00:21:45.440 --> 00:21:49.640 and this farmer was wondering how could you possibly describe it as interstate commerce 216 00:21:49.640 --> 00:21:54.980 if I grow wheat on my own land for the use of myself and my animals 217 00:21:54.980 --> 00:21:59.760 how could that be trade among states, right? I'm not trading with anybody, it's not even among people 218 00:21:59.760 --> 00:22:01.960 how could this possibly be interstate commerce? 219 00:22:01.960 --> 00:22:03.880 and the answer was 220 00:22:03.880 --> 00:22:06.720 that because he consumed his own wheat 221 00:22:06.720 --> 00:22:12.520 he hadn't consumed his own wheat, he might have consumed wheat from another state 222 00:22:12.520 --> 00:22:14.660 but he didn't, he consumed his own wheat 223 00:22:14.660 --> 00:22:19.040 and therefore he indirectly influenced interstate commerce in wheat by not 224 00:22:19.040 --> 00:22:21.580 eating interstate wheat 225 00:22:21.580 --> 00:22:23.120 well that's again 226 00:22:23.120 --> 00:22:26.320 i don't think there's anybody who drafting the 227 00:22:26.320 --> 00:22:28.200 constitution imagined that 228 00:22:28.200 --> 00:22:31.360 the clause could possibly refer to something like that but that's an example 229 00:22:31.360 --> 00:22:32.920 of what has happened 230 00:22:32.920 --> 00:22:40.920 Very recently, the Supreme Court has very timidly begun to rethink this expansive interpretation of the Commerce Clause. 231 00:22:40.920 --> 00:22:50.920 Any time the Supreme Court timidly re-thinks something, the media portrays it as the sky is falling and we're going back to the year 1790. 232 00:22:50.920 --> 00:22:55.920 So the tiniest little thing is interpreted as everything is going in the trash can. 233 00:22:55.920 --> 00:23:03.420 But, for instance, the most well-known case is the case of the United States versus Lopez from 11 years ago, 1995. 234 00:23:03.420 --> 00:23:12.920 It was a case involving a legislative act that was passed under George Bush Sr., the Gun-Free School Zones Act, 1990, 235 00:23:12.920 --> 00:23:17.920 which made it a criminal offense to carry a firearm within a thousand feet of a school. 236 00:23:17.920 --> 00:23:22.920 Now, I don't think many people would find that to be at least an unreasonable idea, 237 00:23:22.920 --> 00:23:24.920 whether you want to have federal regulation as another matter, 238 00:23:24.920 --> 00:23:32.920 Probably none of us would really like to see firearms within a thousand feet of a school. 239 00:23:32.920 --> 00:23:36.920 Well there were already laws to that effect in 40 states in 1990. 240 00:23:36.920 --> 00:23:42.920 So presumably this matter was already being addressed. 241 00:23:42.920 --> 00:23:46.920 But what's significant is how did the government justify doing that? 242 00:23:46.920 --> 00:23:49.920 Normally the federal government doesn't feel like it has to justify doing anything 243 00:23:49.920 --> 00:23:51.920 because no one ever says to the government anymore, 244 00:23:51.920 --> 00:23:55.920 Well, what constitutional clause gives you the power to do X? 245 00:23:55.920 --> 00:23:58.920 If you ask that at a press conference, you will not be invited back. 246 00:23:58.920 --> 00:24:00.920 The answer is, we don't want to answer that. 247 00:24:00.920 --> 00:24:03.920 But they did actually give, they volunteered an answer to that. 248 00:24:03.920 --> 00:24:06.920 They said, well, here's why the federal government has the power 249 00:24:06.920 --> 00:24:10.920 to regulate gun possession within a thousand feet of a school. 250 00:24:10.920 --> 00:24:13.920 The argument went like this, if students are trying to study 251 00:24:13.920 --> 00:24:19.920 and they have to worry about the possibility of there being firearms 252 00:24:19.920 --> 00:24:24.240 in the school or near the school, makes it hard for them to learn. 253 00:24:24.240 --> 00:24:27.520 Well, okay, true, that's one of the reasons we're homeschooling our kids. 254 00:24:27.520 --> 00:24:31.080 I would be terrified to send my kids to school. 255 00:24:31.080 --> 00:24:34.760 But in any event, the argument goes that it's hard for them to learn. 256 00:24:34.760 --> 00:24:38.080 They can't learn in an environment in which there may be guns present. 257 00:24:38.080 --> 00:24:42.000 And if they can't learn, they're going to be ignorant. And if they're ignorant, 258 00:24:42.000 --> 00:24:46.160 they won't be able to produce as much in the economy and interstate commerce will suffer. 259 00:24:46.160 --> 00:24:50.160 Therefore, this can be regulated because it affects interstate commerce. 260 00:24:50.160 --> 00:24:53.160 Well, that was too much even for the Supreme Court. 261 00:24:53.160 --> 00:24:57.160 I mean, the argument basically is if, you know, you're not going to learn as much if you're, 262 00:24:57.160 --> 00:25:01.160 you know, obviously if you're being attacked, true. 263 00:25:01.160 --> 00:25:06.160 But the question is, does that actually, can that really be said to influence interstate commerce 264 00:25:06.160 --> 00:25:09.160 directly enough to justify federal involvement? 265 00:25:09.160 --> 00:25:12.160 And the court struck that down and said, no. 266 00:25:12.160 --> 00:25:16.320 No. But they still take the view of substantial effect. 267 00:25:16.320 --> 00:25:19.400 They're just arguing that substantial effect has not been demonstrated here. 268 00:25:19.400 --> 00:25:23.420 You haven't demonstrated that there's a substantial effect on interstate commerce. 269 00:25:23.420 --> 00:25:29.160 There is, by the way, also, just last year, there was a California law that was challenged 270 00:25:29.160 --> 00:25:31.720 involving the medical marijuana issue. 271 00:25:31.720 --> 00:25:36.920 People who, for various reasons, want to use marijuana for medical purposes were finding 272 00:25:36.920 --> 00:25:40.960 that the federal government was telling them they couldn't, and California tried to say, 273 00:25:40.960 --> 00:25:56.960 The Federal government's brief in the case against California argued that medical marijuana was subject to federal regulation because its use affected interstate commerce, because it affects the interstate marijuana market. 274 00:25:56.960 --> 00:26:02.960 Well, the interstate marijuana market is illegal, so it's not clear why this would even be relevant. 275 00:26:02.960 --> 00:26:09.960 But the argument was that because if I use medical marijuana then that influences the interstate market in marijuana 276 00:26:09.960 --> 00:26:13.960 because now there's less marijuana in my state, we need more produced somewhere. 277 00:26:13.960 --> 00:26:18.960 I mean, I don't even follow it really, but that's pretty much the argument. It affects interstate commerce. 278 00:26:18.960 --> 00:26:25.960 Well, Clarence Thomas, in his dissent in this case, argued that, look, the two patients who were involved in this particular case 279 00:26:25.960 --> 00:26:31.960 had used marijuana that he said never had been bought or sold, had never crossed state lines, 280 00:26:31.960 --> 00:26:35.960 has no demonstrable effect on the national market for marijuana. 281 00:26:35.960 --> 00:26:37.960 If Congress can regulate this under the Commerce Clause, 282 00:26:37.960 --> 00:26:39.960 then it can regulate virtually anything. 283 00:26:39.960 --> 00:26:43.960 And the Federal Government is no longer one of limited and enumerated powers. 284 00:26:43.960 --> 00:26:46.960 So, I mean, that is an interesting point. 285 00:26:46.960 --> 00:26:52.960 I mean, if you can do this, then what would not be subject to regulation under the Commerce Clause? 286 00:26:52.960 --> 00:26:56.960 In fact, I and some other people have suggested that, according to this logic, 287 00:26:56.960 --> 00:26:59.960 human reproduction should be regulated by the Federal Government. 288 00:26:59.960 --> 00:27:04.960 Because the more people we have, clearly increase in population will affect interstate commerce. 289 00:27:04.960 --> 00:27:07.960 The more people we have, the more commerce we'll have. 290 00:27:07.960 --> 00:27:10.960 So therefore the federal government should regulate human reproduction. 291 00:27:10.960 --> 00:27:13.960 On what grounds could it not do that? 292 00:27:13.960 --> 00:27:17.960 In fact, Justice Oliver Wendell Holmes anticipated this line of argument and said, 293 00:27:17.960 --> 00:27:24.960 commerce depends upon population, but Congress could not on that ground undertake to regulate marriage and divorce. 294 00:27:24.960 --> 00:27:26.960 Well, that's what you think. 295 00:27:26.960 --> 00:27:35.960 If they really want to, if they thought they could get away with it, it seems to me they have all the logic on their side based on this interpretation of the Commerce Clause. 296 00:27:35.960 --> 00:27:42.960 Now, my coverage of these two are much, much briefer, I'd like to do, and then we can stop and break. 297 00:27:42.960 --> 00:27:48.960 The next clause I'd like to cover, I don't think it's mentioned in my book at all, is the Necessary and Proper Clause. 298 00:27:48.960 --> 00:27:52.960 So what does this refer to? 299 00:27:52.960 --> 00:28:03.960 Well, Article 1, Section 8 once again, includes the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers 300 00:28:03.960 --> 00:28:09.960 and all other powers vested by this Constitution in the government of the department or officer thereof. 301 00:28:09.960 --> 00:28:17.960 So this clause that the Federal Government has all powers that are necessary and proper to execute the powers granted to it 302 00:28:17.960 --> 00:28:20.960 has also been a source of controversy. 303 00:28:20.960 --> 00:28:27.960 This is often presented to students in social studies classes as the elastic clause that could pretty much cover anything. 304 00:28:27.960 --> 00:28:31.960 So again, we want to look at what does this mean? What was this intended to mean? 305 00:28:31.960 --> 00:28:40.960 Was this clause really intended to mean that the federal government could pretty much do whatever it thought necessary and proper? 306 00:28:40.960 --> 00:28:42.960 Okay, good question. 307 00:28:42.960 --> 00:28:48.800 Well, at the Constitutional Convention, a fellow named Gunning Bedford proposed 308 00:28:48.800 --> 00:28:53.920 that the Federal Government should have sweeping, open-ended power to legislate 309 00:28:53.920 --> 00:28:57.860 quote, in all cases, for the general interests of the Union. 310 00:28:57.860 --> 00:28:59.840 That was rejected. 311 00:28:59.840 --> 00:29:03.520 So the idea that the Federal Government should just have this sweeping power to rule at its 312 00:29:03.520 --> 00:29:05.400 discretion 313 00:29:05.400 --> 00:29:09.140 was rejected. And instead it was proposed that the Federal Government 314 00:29:09.140 --> 00:29:11.720 should be given a listing of powers 315 00:29:11.720 --> 00:29:16.220 and that at the end of that, as part of that listing, it would also be granted any power 316 00:29:16.220 --> 00:29:24.720 or it would be declared that it possessed any power necessary to carry into execution these enumerated powers. 317 00:29:24.720 --> 00:29:33.220 Well, at the Virginia Ratifying Convention in 1788, George Nicholas told the convention that this clause, 318 00:29:33.220 --> 00:29:40.720 quote, only enables Congress to carry into execution the powers given to them, but gives them no additional power. 319 00:29:40.720 --> 00:29:43.720 The understanding was that this is not an additional grant of power. 320 00:29:43.720 --> 00:29:48.720 It simply clarifies the fact that the government would not be completely paralyzed 321 00:29:48.720 --> 00:29:53.720 if it should turn out that there is some little thing it needs to do in order to carry out powers A, B and C. 322 00:29:53.720 --> 00:29:58.720 It is assumed that naturally it would have to have the power to carry out A, B and C. 323 00:29:58.720 --> 00:30:00.720 James Madison held the same view. 324 00:30:00.720 --> 00:30:06.720 In Federalist No. 33, Alexander Hamilton argued that the Necessary and Proper Clause, 325 00:30:06.720 --> 00:30:11.600 was, along with the Supremacy Clause, which is another one we're not going to talk about, 326 00:30:11.600 --> 00:30:16.840 only made explicit what was logically and unavoidably implied in the very nature of the Constitution 327 00:30:16.840 --> 00:30:20.440 and added nothing to the Constitution other than simple clarification. 328 00:30:20.440 --> 00:30:25.440 Hamilton wrote, it may be affirmed with perfect confidence that the constitutional operation 329 00:30:25.440 --> 00:30:32.000 of the intended government would be precisely the same if these clauses were entirely obliterated, 330 00:30:32.000 --> 00:30:34.820 as if they were repeated in every article. 331 00:30:34.820 --> 00:30:40.340 They are only declaratory of a truth which would have resulted by necessary and unavoidable 332 00:30:40.340 --> 00:30:44.900 implication from the very act of constituting a federal government and vesting it with certain 333 00:30:44.900 --> 00:30:49.780 specified powers. So again, the idea is that this is not giving additional powers, it is 334 00:30:49.780 --> 00:30:56.780 simply clarifying the existing ones. Virginia representative William Branch Giles said this, 335 00:30:58.300 --> 00:31:04.020 If expediency constituted constitutionality, the House judged of the expediency, then every 336 00:31:04.020 --> 00:31:08.120 Every measure they could possibly enter into would be ipso facto constitutional. 337 00:31:08.120 --> 00:31:12.140 And what would then be the weight it was intended the Constitution should have and where were 338 00:31:12.140 --> 00:31:13.140 its limits? 339 00:31:13.140 --> 00:31:18.300 That is to say, if this clause were really intended to mean that the Federal Government 340 00:31:18.300 --> 00:31:21.700 could do anything that it considered to be necessary and proper, and then the government 341 00:31:21.700 --> 00:31:25.740 itself got to determine what counted as being necessary and proper, well, that wouldn't 342 00:31:25.740 --> 00:31:29.220 be any limit on the Federal Government at all, it could just do anything it wanted to. 343 00:31:29.220 --> 00:31:35.120 Thomas Jefferson argued in 1791 that if necessary and proper simply meant convenient, anything 344 00:31:35.120 --> 00:31:38.980 convenient can be done by the Federal Government, then you'd have a government of unlimited 345 00:31:38.980 --> 00:31:43.580 powers. St. George Tucker, who was a professor of law at the College of William and Mary, 346 00:31:43.580 --> 00:31:48.940 he was a judge in many courts, U.S. District Court in Richmond, in his highly regarded 347 00:31:48.940 --> 00:31:53.860 book, View of the Constitution of the United States, in 1803, feared that some would attempt 348 00:31:53.860 --> 00:31:59.620 quote, to expound these phrases in the Constitution so as to destroy the effect of the particular 349 00:31:59.620 --> 00:32:04.340 enumeration of powers by which it explains and limits them. He said the Necessary and 350 00:32:04.340 --> 00:32:09.540 Proper Clause neither enlarges any power specifically granted nor is it a grant of new powers to 351 00:32:09.540 --> 00:32:13.980 Congress but merely a declaration for the removal of all uncertainty that the means 352 00:32:13.980 --> 00:32:19.980 of carrying into execution those otherwise granted are included in the grant. And then 353 00:32:19.980 --> 00:32:21.980 Then he goes on and elaborates on that. 354 00:32:21.980 --> 00:32:27.500 Now again, John Marshall pops onto the scene and in the famous case McCulloch versus Maryland 355 00:32:27.500 --> 00:32:34.060 in 1819, Marshall in effect adopted the view that necessary meant convenient or useful 356 00:32:34.060 --> 00:32:37.300 and then he elaborated on that position. 357 00:32:37.300 --> 00:32:42.100 And at the time, a number of important Americans immediately responded to Marshall and argued 358 00:32:42.100 --> 00:32:47.580 that this was not the original interpretation of the Constitution. 359 00:32:47.580 --> 00:32:52.260 I'll just wrap up this discussion by noting that it doesn't really matter anymore what 360 00:32:52.260 --> 00:32:55.780 the necessary and proper cause was originally meant to mean. 361 00:32:55.780 --> 00:33:00.200 Today it means convenient, if the government finds it convenient for carrying out its powers 362 00:33:00.200 --> 00:33:05.220 then it can do X, Y or Z. Law students today read John Marshall and they read the McCulloch 363 00:33:05.220 --> 00:33:09.980 decision. They don't read Jefferson on this, they don't read John Taylor who wrote on 364 00:33:09.980 --> 00:33:13.940 this, they don't read St. George Tucker, they don't read any of the other commentators 365 00:33:13.940 --> 00:33:18.500 Lawsuitors who wrote on it. They read as if John Marshall had come down from heaven and 366 00:33:18.500 --> 00:33:23.060 explained to them what the Constitution meant. There is almost nothing else that law students 367 00:33:23.060 --> 00:33:26.940 are exposed to. And by the way, I have nothing against law students. I have a great many 368 00:33:26.940 --> 00:33:30.420 friends who are law students. But when you give them history like this, they immediately 369 00:33:30.420 --> 00:33:33.560 object and say, well, I didn't learn that in law school. And then the implication is 370 00:33:33.560 --> 00:33:39.020 so it can't be of any merit. But I think in law school, naturally you learn about how 371 00:33:39.020 --> 00:33:43.220 is the Constitution being interpreted today. You don't get what did people originally think 372 00:33:43.220 --> 00:33:51.220 Well, finally, my last little brief discussion involves something that is covered briefly in my chapter, and that's the general welfare clause. 373 00:33:51.220 --> 00:33:55.220 Article 1, Section 8 of the Constitution speaks of the power of Congress to lay taxes, 374 00:33:55.220 --> 00:34:00.220 quote, to provide for the common defense and general welfare of the United States, end quote. 375 00:34:00.220 --> 00:34:04.220 Well, again, we need to know what do these words mean? 376 00:34:04.220 --> 00:34:11.220 Does that mean the federal government could decide that something comported with the general welfare and therefore it was authorized to carry it out? 377 00:34:11.220 --> 00:34:15.220 Well, that's a good question. What was it intended to mean? 378 00:34:15.220 --> 00:34:18.220 Well, there was initially some controversy over this. 379 00:34:18.220 --> 00:34:22.220 After the Constitution was ratified, there were debates in the 1790s 380 00:34:22.220 --> 00:34:26.220 between Alexander Hamilton and Thomas Jefferson and James Madison 381 00:34:26.220 --> 00:34:28.220 on the question of the meaning of the general welfare clause. 382 00:34:28.220 --> 00:34:30.220 And I'll return to that at the end. 383 00:34:30.220 --> 00:34:34.220 What I want to note, though, is that prior to the ratification of the Constitution, 384 00:34:34.220 --> 00:34:37.220 it was clear enough to people what the clause meant. 385 00:34:37.220 --> 00:34:46.920 It was simply meant to clarify and to, in effect, limit and explain the specific powers granted to Congress. 386 00:34:46.920 --> 00:34:53.520 You'll note in Article 1, Section 8 of the Constitution, the powers granted to the U.S. Congress are all listed there. 387 00:34:53.520 --> 00:35:00.520 Now, one of the objections that was raised to the idea that the General Welfare Clause authorizes the government to do anything it likes, 388 00:35:00.520 --> 00:35:07.120 as long as it's for the general welfare, was, if that's true, why do we bother to list specific things the government has the power to do? 389 00:35:07.120 --> 00:35:12.520 If it can do anything for the general welfare, then we wasted our time listing specific things. 390 00:35:12.520 --> 00:35:25.020 So, for instance, why would we bother putting in a statement that the government can establish post roads and deal with weights and measures? 391 00:35:25.020 --> 00:35:32.020 What's the point of putting all those powers in there if the federal government has, in effect, any power that comports with the general welfare? 392 00:35:32.020 --> 00:35:39.020 These are good questions and they are questions that were raised by James Madison and Thomas Jefferson and others. 393 00:35:39.020 --> 00:35:45.020 In fact, Patrick Henry, the great Virginian who feared that this general welfare clause would one day 394 00:35:45.020 --> 00:35:49.020 transform the U.S. government into a government of unlimited powers, 395 00:35:49.020 --> 00:35:54.020 he was assured at the Virginia ratifying convention that the clause could never be interpreted that way 396 00:35:54.020 --> 00:36:00.020 because the federal government would only have those powers that were expressly delegated to it. 397 00:36:00.020 --> 00:36:04.420 and the Virginia Ratifying Convention used the words expressly delegated. 398 00:36:04.420 --> 00:36:10.460 Unless the states had expressly given a power to the federal government, 399 00:36:10.460 --> 00:36:13.860 then that government did not possess that power. 400 00:36:13.860 --> 00:36:20.020 So it would not have the authority simply to use the general welfare clause 401 00:36:20.020 --> 00:36:28.580 as an open-ended, entering wedge to allow it to do pretty much anything that it liked. 402 00:36:28.580 --> 00:36:34.820 A couple of supporting statements for this and then we will adjourn for a moment. 403 00:36:34.820 --> 00:36:40.580 Madison said, the Constitution has not created an indefinite government, but a limited government 404 00:36:40.580 --> 00:36:45.940 tied down to the specified powers which explain and define the general terms. 405 00:36:45.940 --> 00:36:47.900 General welfare is one of the general terms. 406 00:36:47.900 --> 00:36:50.100 The specified powers tie them down. 407 00:36:50.100 --> 00:36:53.700 So that is to say, when you carry out the government's powers, you have to do it in 408 00:36:53.700 --> 00:36:56.540 a way that is for the general welfare. 409 00:36:56.540 --> 00:37:00.840 We should not be looking to benefit just one sector of the country or one class, 410 00:37:00.840 --> 00:37:04.540 but it should be for the general welfare when you carry out these specified powers. 411 00:37:04.540 --> 00:37:05.840 That was the understanding. 412 00:37:05.840 --> 00:37:12.040 Madison said, it would be absurd to say, first, that Congress may do what they please, 413 00:37:12.040 --> 00:37:15.540 and then to say they may do this or that particular thing. 414 00:37:15.540 --> 00:37:18.540 In fact, the meaning of the general terms in question, 415 00:37:18.540 --> 00:37:21.440 again, general welfare is what he means, 416 00:37:21.440 --> 00:37:26.600 must either be sought in the subsequent enumeration, which limits and details them, 417 00:37:26.600 --> 00:37:30.040 or they convert the government from one limited, as hitherto supposed, 418 00:37:30.040 --> 00:37:35.840 to the enumerated powers, into a government without any limits at all. 419 00:37:35.840 --> 00:37:36.960 And then so on and so forth. 420 00:37:36.960 --> 00:37:39.800 And there are so many statements regarding the general welfare clause. 421 00:37:39.800 --> 00:37:41.960 It's almost an embarrassment of riches. 422 00:37:41.960 --> 00:37:46.960 Jefferson repeatedly said that you would wind up with a government of unlimited powers 423 00:37:46.960 --> 00:37:50.000 if you interpreted the general welfare clause that way. 424 00:37:50.000 --> 00:38:20.000 Now the one objection that's raised to my interpretation here of the General Welfare Clause is that Alexander Hamilton did in fact in the early 1790s argue the General Welfare Clause was in fact a broad grant of power to the Federal Government, a broad grant of spending power and that the Federal Government was not confined to the powers granted to it in Article I, Section 8 explicitly and that it could in fact carry out other functions under the cover of the General Welfare Clause. Well what is worth noting here is that that was not the position Hamilton 425 00:38:20.000 --> 00:38:36.000 before the Constitution was ratified he assured everybody that don't worry agriculture and other local concerns can never be swallowed up by the federal government under cover of the General Welfare Clause. 426 00:38:36.000 --> 00:38:41.000 Then in 1791 he suddenly says agriculture can be regulated by the federal government. 427 00:38:41.000 --> 00:38:42.000 by the Federal Government. 428 00:38:42.000 --> 00:38:46.720 So clearly, he is obviously, before the Constitution is ratified, he's obviously trying to persuade 429 00:38:46.720 --> 00:38:47.720 people to ratify. 430 00:38:47.720 --> 00:38:50.800 And then once they're stuck in it, then he says, oh, by the way, we're going to interpret 431 00:38:50.800 --> 00:38:52.200 it this way. 432 00:38:52.200 --> 00:38:57.440 It's also worth noting that Hamilton, even by his own admission, was very far from the 433 00:38:57.440 --> 00:38:59.440 mainstream of the Convention. 434 00:38:59.440 --> 00:39:05.000 In fact, shortly after the Convention, he even said that he was looking forward to the 435 00:39:05.000 --> 00:39:10.880 time when the states would be reduced to a condition of utter subordination, which put 436 00:39:10.880 --> 00:39:16.880 has brought him far out of the mainstream of anything anybody had ever said really or thought at the time 437 00:39:16.880 --> 00:39:21.880 and his views on the general welfare clause by and large come after the Constitution has been ratified 438 00:39:21.880 --> 00:39:29.880 so an after the fact statement about what Hamilton thinks the clause means is not nearly as important or suggestive 439 00:39:29.880 --> 00:39:37.880 as what people were being told at the time during the drafting of the document and at the ratification conventions. 440 00:39:37.880 --> 00:39:39.880 Let me leave you with this thought. 441 00:39:39.880 --> 00:39:45.880 In case the dangers of a broad interpretation of the general welfare clause are not obvious, consider this. 442 00:39:45.880 --> 00:39:52.880 In the 1990s, there was a Supreme Court Justice who asked Bill Clinton's Solicitor General, 443 00:39:52.880 --> 00:39:57.880 could you please name a single activity on which the Congress might choose to legislate 444 00:39:57.880 --> 00:40:02.880 that in your view would go beyond its legitimate powers under the Constitution? 445 00:40:02.880 --> 00:40:05.880 The man stood there flummoxed and could not name anything.