The Extension and Intension of the Constitution

We must begin this discussion with the definition of the words in the title:
"The intension of a concept consists of the qualities or properties which go to make up the concept. The extension of a concept consists of the things which fall under the concept; or, according to another definition, the extension of a concept consists of the concepts which are subsumed under it (determine subclasses)" source 

The intension of the Constitution is, therefore, the qualities or properties which go to make up the concept. What is the concept? It is supremely simple, and in two parts: the first quality is that of a government more able to deal with national problems than the Articles of Confederation allowed for; and the second property was to make a government less able to violate the rights of minorities. The second quality was the biggest intensional concern of James Madison, Patrick Henry and others, and it is the one that has seen its extensions go awry, since the era of the New Deal.

The extensional parts are the subclasses of the intensions; they are the things which 'fall under' the concept(s). Article 1, Section 2 explaining the composition of the Congress, is therefore an extension of Section 1, explaining that there shall be a Senate and a House.

"The Constitution does not give you rights," explains the Constitutionality Crisis. "The founders considered your rights to be 'God-given' or 'natural rights' — you are born with all your rights. The constitution does, however, protect your rights by:

• Limiting the powers of government by granting to it only those specific powers that are listed in the Constitution; (This has not proven to be effective of late.)
• Enumerating certain, specific rights which you retain. These are listed in the Bill of Rights." [emphasis in original]

The Constitution, in turn, is an extension of John Locke's famous intensional statement about the state of nature specifically, that it "has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. [John Locke, The Second Treatise of Civil Government, §6] [emphasis in original]

But more than that, our coveted Bill of Rights are the extensions of the entire concept for the limitation of the powers of government, and the empowerment of the individual. "The whole of the Bill is a declaration of the right of the people at large or considered as individuals…It establishes some rights of the individual as unalienable and which consequently, no majority has the right to deprive them of." –Albert Gallatin, 1789, New York Historical Society

The original statements of the Founders give us their intent for ratifying the words they used. Why did they say this, and say it that way instead of the other way or another way? But epistemological intension is like a definition of a genus, whereas extension is like the definition of a species. The genus of the Constitution is that of a document never seen before then, one that had two part, the way 'man' is defined as 'rational animal'. The two parts are to be an enabler of individualism, and a limiter of government.

Madison warned us of wrongful extensions of the limited powers given to government, and named many that we see today. Congress might, he said, "establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the union, they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing from the highest object of state legislation, down to the most minute object of police, would be thrown under the power of Congress [ ] and might be called, if Congress pleased, provisions for the general welfare."

These things are so commonplace that we do not even think about some of them as being usurpations by the nation upon the powers of the States; or worse, usurpations on your individual sovereignty, which was a commonly held extension of the purpose of the limitation on government.

Next Friday I will examine some others in detail.

© Curtis Edward Clark 2012

Health Care and the Supremacy Clause

    "State governments are pushing back reasserting federalism as the Founders intended them to do," said the Attorney General of Virginia, Ken Cuccinelli."Virginia was the first state to argue in federal court that the new health car law is unconstitutional.....[A] legal expert said our case relied on a 'controversial reading of the Constitution.' Apparently it is controversial to apply the Constitution as it was written." [1] 

    The Constitutional Accountability Center [CAC], which believes in a 'Progressive Constitution', said in its blog that this push-back whereby States' "claims that federal health care reform violates the Constitution’s 10th Amendment and 'states’ rights' rely on an inaccurate view of the federal government as a weak, sharply limited central government."[2]
 
    To view the federal government as anything but a "sharply limited central government" may not stand up against court precedent. But precedent is not what is paramount here, because precedent is nothing but interpretations by judges who may discount original expected application, and who obviously were not there to comprehend from a first-person memory what the application was supposed to be. At the start of the current Congress, Justice Antonin Scalia reminded the House Republicans to read and understand the Federalist Papers.

    Original "meaning" refers in most recent writings to the meaning of the words as they were used when the Constitution was written; but meanings of words change. Where we say "judge", people in the 18th century often said "jurist", but to us in this century a "jurist" is taken to be someone who sits in the jury box. It isn't the meaning of the words as we understand them that is important; but that is what progressive readers of the Constitution use--their own understanding of the words as they wish them to be used today.

    "Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application."[3]

    As I wrote on April 29, Tibor Machan, referring to another author, said this is "stating conventional wisdom in the 'post-New Deal era'" of constitutional jurisprudence.  "The way this is made palatable," he wrote, "is to associate the pre-New Deal constitutional jurisprudence--substantive due process and such--with rulings that failed to overturn segregation, etc."[4]

    But there is also more going on here. "[I]n circumstances in which a national approach is necessary or preferable," the CAC continues, "the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal."

    Who determines when a "national approach" is "preferable" if it is not the States? It is circular thinking to say that, when the federal government was created by the States to serve them, that that servant should then decide when it may preempt the very States' laws they use under the powers of the Constitution as each State sees fit. Who determines a "national goal" if not the nation made of sovereign States who protect sovereign individuals?

    This arrogance in 'preempting state law when necessary' is created by "the 'illusion' [that] the heart of Jeffersonian government is just American individualism!....Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...."[5]

    Indeed. Much of the Tea Party is founded or supported by libertarians and independents, who were inspired by the ideas of Ayn Rand, who echoed the Founders:

    "Individualism regards man—every man—as an independent, sovereign entity who possesses an inalienable right to his own life, a right derived from his nature as a rational being. Individualism holds that a civilized society, or any form of association, cooperation or peaceful coexistence among men, can be achieved only on the basis of the recognition of individual rights—and that a group, as such, has no rights other than the individual rights of its members."[6]


    The Supremacy Clause says, in part that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof....shall be the supreme Law of the Land...." But it says nothing about laws made in pursuance of the Constitution being lawful just because a particular group of individuals who have gained supremacy says every law they deign to write is "necessary to achieve a national goal."

    It is only necessary to achieve their goals that they have their sights set on a 'progressive Constitution' that allows for the use of modern definitions of 18th century words, rather than 21st century interpretations of original expected application.

    But it is my opinion that the Tea Party often does little better, or none at all, or perhaps worse at time--when it decides to stand up for a perceived principle that is no principle at all. A perfect example is the call for 'smaller government' through limited budgets, rather than limited budgets through original Constitutional intent. Fiscal conservatism is not necessarily Constitutionalism.

    I have always said that the government must as large as it must be, and only as large as is Constitutional. The Framers didn't want a standing army; but those were there original "meanings"; their expected application was never to allow our nation to be exposed to the kinds of world-wide threats the kinds of which they had no conception.

    Health care, on the other hand, ought to be handled by anyone with the authority to do so, and the Supremacy Clause does not allow for the federal government to do so.

[1] April 21, 2011 lecture sponsored by Hillsdale College's Kirby Center for Constitutional Studies and Citizenship in Washington, D.C. Imprimis; April 2011 Volume 40, Number 4
[2] CAC July 27, 2010 
[3] Jack Balkin; Balkinization
[4] Tibor Machan
[5] Kelly R. Ross
[6] The Ayn Rand Lexicon; The Virtue of Selfishness

© Curtis Edward Clark 2011

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What is Allegiance to the "United States"

     Allegiance to the government of the United States is not the same as allegiance to the State of which one is a legal resident. Article XIV, adopted in 1868, states that everyone who is born a citizen or is naturalized and who is subject to the jurisdiction of United States "are citizens of the United States."

     "The citizen was not, under the theory of States' rights, in contact with the National Government. He owed allegiance to his State, and the State dealt with the Nation. That theory was definitely set aside by [the Fourteenth] Amendment." *

     Americans now owed allegiance to both authorities. Congressman John Bingham was the principal author of Section One of the Fourteenth Amendment, the part with the words "citizen of the United States". "The phrase 'citizen of the United States' had been used for nearly 8 decades before the Civil War, but always to speak of persons within federal territories." Original Intent.org 

"It is federal, because it is the government of States united in a political union, in contradistinction to a government of individuals, that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national because it is the government of a community of States, and not the government of a single State or Nation." John C. Calhoun

     We unintentionally created what would become a behemoth national government, and it was entirely within the purview of the original Constitution because we had amended the original Constitution. But did creating 'national powers' within the 'federal' government automatically give it the broad powers it has today, with hundreds of federal agencies allowed to make law, and the President allowed to make legally binding executive orders, when the first sentence in the Constitution states: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives"?
     Federal powers began to expand, says Doug Fiedor, in 1825 (Wayman v. Southard) when Congress unconstitutionally delegated the power to the federal court to establish its own rules of practice." In that case, Chief Justice Marshall therefore denied that the delegation [of those powers] was impermissible," and "In 1940, that power was even written into law."
     In future blogs, I will continue to explain how federal expansionism became unlawfully practiced.
     For now it is enough to say that when I pledge allegiance to the United States, it is not the nation that James Madison and the other signers of the Constitution conceived, nor the same federal government that Calhoun described. It is a nation in which both parties conceive of positive rights as an extension of their Fourteenth Amendment duty to protect (and further define) the 'citizen of the United States'. 
     The defining of such a citizen' should have been severely limited, by by then it was too late to stop the national train.

* All asterisks in this post refer to my favorite pre-WWII reference on the Constitution: Constitution of the United States; Its Sources and Application; Thomas J. Norton, copyright 1943