Hamilton to Heene

Is the rule of law hiding in the garage?

In the Philadelphia Convention of 1787, called ostensibly to revise the Articles of Confederation, Alexander Hamilton pulled a mighty bait-and-switch, slamming the doors shut, swearing everyone to secrecy, and announcing that they were there to replace the Articles with a new unitary Constitution binding the 13 sovereign States under a single new national (”Federal”) government.

Then, and in the years that followed, there were those who could see what lurked within the large equine structure of the document. All the frippery about “enumerated powers” aside, what came to matter was a simple little item known to posterity as the “elastic clause”.

The entire Constitution, in the minds of the successors of Hamilton who run the courts and the institutions of learning, boils down to the Preamble and this one clause: whatever they deem will “promote the general welfare” is to be implemented in whatever way the “Federal” government deems at the moment to be “necessary and proper“.

All the rest of the document, in particular the specific limits of the Bill of Rights that had to be inserted to persuade sufficient States to ratify it, is so much camouflage and dross. Let those who bemoan the hijacking of the Constitution by later power-grabbing Presidents and overreaching Justices disabuse themselves: this arrangement was precisely what Hamilton sought to engineer in his manipulation of the Philadelphia Convention.

We are left, then, at the mercy of the prevailing interpretations of “general welfare” and “necessary and proper” of those who hold power in Washington at any given time. Bizarre, even comical diktats, like Nixon commanding the flow of time itself, or the double-taxing of people who work independently as “self-employed”, have no check but the “straight-face test”.

Of course, a certain vestigial ritual deference to the worm-eaten hulk of the Constitutional Trojan Horse has remained as a loose - not to say elastic - tether between the image of a free nation and the actual conduct of unbridled central power.

Legislation from the “Federal” bench (so much for separation of powers), for example, on matters as unrelated to the Constitution as contraception and abortion is justified with “emanations from penumbras” of Amendments to the “founding” document.

Even when so outlandish they can serve the practical purpose of training law students in keeping a straight face while spewing wanton absurdities in court, those who pronounce new powers on the part of the national government have been customarily expected to come up with some sort of fig leaf to place over the hatch of Alexander’s Trojan Horse.

Not any more.

Such specifically relevant personages as Speaker of the United States House of Representatives Nancy Pelosi and Chairman of the Senate Judiciary Committee Patrick Leahy no longer even bother themselves with fig leaves or emanations - they frankly refuse to go through the charade of pretending that there exist any constitutional limitations upon their power over any and every element of people’s lives, liberties, and property.

The tether of the Elastic Clause has been released, and “Federal” power floats free upon the wind, unsecured even in winks and metaphors to the ground of law and liberty.

Rejoice, Hamilton, thou art unbound!

Horatius