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> Founder intention is absolutely unknowable and it's a ridiculous argument. Yeah, if only they left some kind of papers where they described in detail what they intended. For example, with respect to the Helvering v Davis case, which I mentioned, and which decided on what the constitution meant when it talked about General Welfare, wouldn’t it have been great if we had some authors of the constitution explain it like this: > Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States," amounts to an unlimited commission to exercise every power, which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. > Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare." > But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common, than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. Alas, founders just dropped by, left us with the constitution, and then disappeared in the puff of smoke. They didn’t write any Federalist Papers, no notes from the constitutional convention survived, and whether the General Welfare clause meant “federal government can do whatever it wants” or exactly the things they took effort to enumerate doesn’t matter, since the constitution would have passed either way, it’s not like the state delegates even cared one way or the other... More seriously, while I can understand arguments that the constitution of the founders wouldn’t work for America in 20th century, the idea that we cannot know what the founders intended is completely and utterly absurd, because in most cases we know exactly what they intended. |