Napolitano Denounces The Constitution's Big Government Agenda

Blog ››› ››› NED RESNIKOFF

On tonight's episode of Glenn Beck, guest host -- and possible full-time Glenn Beck replacement -- Andrew Napolitano seemed to endorse the Articles of Confederation over the U.S. Constitution.

NAPOLITANO: The modern-day struggle for liberty is a renewed fight from a long-forgotten age. The founding of the American Republic was defined not simply by throwing off the yoke of the British empire. For when the revolution ended, the Founders were left to argue and battle amongst one another, to create a government on their own. Just like our politicians today, they became corrupted by too much power, and many of the Founding Fathers began to lust for more power and desired to shape the American republic toward big government.

But not Thomas Jefferson. With a few minor exceptions, the Jeffersonian band, the Anti-Federalists, who believed in small government and maximum individual liberty, struggled against the power-hungry big government types at the Constitutional Convention in 1787. The big government types, the Federalists, led by Alexander Hamilton, were dissatisfied with the Articles of Confederation that had held the states together loosely, but left them largely alone to govern their own affairs. Although the Federalists were victorious in drafting the Constitution with a stronger central government, the Anti-Federalists were successful in restraining the new central government with a Bill of Rights.

Well, at least he's OK with the Bill of Rights. But Napolitano seems to be saying that the rest of the Constitution was a victory for those nasty "big government types," who defeated the Jeffersonian ideal represented by the Articles of Confederation.

You know who might take issue with that interpretation? Thomas Jefferson.

From The Constitutional Thought of Thomas Jefferson, by law and history professor David N. Mayer:

Notwithstanding his relative calm, Jefferson clearly perceived defects in the Articles of Confederation that called for amendment -- and amendment in the direction of strengthening national powers. As early as 1784, he expressed the conviction that "nothing can preserve our Confederacy unless the band of Union, their common council be strengthened." Jefferson repeatedly stated his awareness of defects in the Articles. He saw three principal features that were lacking: the requisite degree of unity needed for conducting foreign affairs and regulating interstate and foreign commerce; separation of powers; and a mode of coercing states that failed to observe their obligations. As he put it, "My idea is that we should be made one nation in every case concerning foreign affairs, and separate ones in whatever is merely domestic. That the federal government should be organized into the Legislative, executive and judiciary as are the state governments, and some peaceable means of enforcement devised for the federal head over the states."

The most serious defect, in Jefferson's opinion, was that relating to commerce. The Articles of Confederation failed to grant Congress the power to regulate the commerce of the several states. This "want of power in the federal head" he identified as "the flaw in our constitution which might endanger its destruction." Having "no original and inherent" power over commerce, Congress could exercise such power only indirectly, by virtue of the ninth article, which authorized it to enter into treaties of commerce with foreign nations. "The moment these treaties are concluded," he argued, "the jurisdiction of Congress over the commerce of the states springs into existence, and that of the particular states is superseded so far as the articles of the treaty may have taken up the subject." As an American minister his own object in the formation of treaties with European countries was "to take the commerce of the states out of the hands of the states, and to place it under the superintendence of Congress, so far as the imperfect provisions of our constitution will admit," until such time as "the states shall by new compact make them more perfect." Jefferson's hope was that the United States could say "to every nation on earth, by treaty, your people shall trade freely with us, and ours with you, paying no more than the most favored nation." By this policy Congress could "put an end to the right of individual states acting by fits and starts to interrupt our commerce or embroil us with any nation."

Jefferson almost sounds like a "big government type" in that passage -- at least if you're going by Napolitano's expansive definition of "big government." And it's not like David N. Mayer is a left-wing ideologue, twisting Jefferson's words, either. According to his university bio, he sits on the editorial board of the Cato Supreme Court Review and "has been a frequent speaker at the Summer Seminars of The Atlas Society and its Objectivist Center."

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Andrew Napolitano
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