John Roberts - Too Clever by Half

Faux Nooz­™  screws the pooch

“It is possible to twist the fine print into a pretzel and make it look like a tax, and that’s enough for Justice Roberts on Page 41, who is apparently a different person than Justice Roberts on Page 20. …”

Faux Nooz and CNN got it wrong this morning, of course. The most significant Supreme Court case (excepting Bush v. Gore, of course, which permanently stained the members of that 5-4 majority) in decades, perhaps in a century, and CNN got it wrong.*

[* Faux Nooz doesn't count, of course, since they're merely a propaganda arm of the GOP at Rupert's behest, putting his piracies in the eternal protection of the GOP, just as he had done in England until his sleazebags hacked a dead girl's phone.]

We all laugh. And yet, in laughing and mocking these national “news” organizations for screwing the pooch THAT badly, we must not shut off our brains, but ask, instead, HOW did they manage to get it so wrong so quickly?

i. The Commerce Clause

I need you to understand something about the Founding Fathers and the Constitution.

For several years after the Revolution, Congress was the sole federal government. This wasn’t a big deal, because each state thought of itself as a separate nation. And chaos reigned. Different weights and measures, different taxes, duties, tolls. Different MONEY. And, of course, if a river was the boundary, GOOD LUCK trying to conduct commerce ON that river.

Spirit of ’76 by Archibald MacNeal Willard

Now this is important, because America grows almost entirely by waterway until we hit the Big Muddy, the Missouri River.  We have two huge problems, as well. First, the Spanish hold New Orleans (until Napoleon takes it back) and they’re not interested in allowing any ships to travel down the Mississippi and make it to through the Gulf of Mexico to the East Coast with goods.

So, the Mississippi is pretty well closed off to American trade.

Secondly, and the reason why the first is such a huge problem, is that the Appalachian Mountains form a nearly impassable barrier for hauling cargo in any kind of profitable manner. The East Coasterners can’t trade with the Northwest Territory (what is now Ohio, Indiana and Illinois), and vice versa.

See the line?

George Washington, like most Continental soldiers, was paid by a grateful nation in NW Territory land, which the several states had donated (their original Royal charters having given them all the land West from the Atlantic coast to any theoretical West Coast. You can still see one of the lines to this very day, if you’ll trace the line from Arizona’s northern border across all the way to the southern border of Virginia and the northern border of North Carolina.)

Statue of Washington outside Independence Hall,
Philadelphia, Pennsylvania. Photo by author © 2008

And this was great by Washington, who was obsessed with Real Estate, and being rich. He had married into Martha Custis’ estate and wealth, and, while he liked the wealth and privilege, it secretly seems to have galled him that it wasn’t truly HIS earned wealth.  (When he died, he freed all his slaves, but could not free HER slaves, since they were her children’s inheritance property.)

And, sitting on his porch in Mount Vernon, Washington and George Mason his neighbor, and others who came by to meet with the Great Man hatched a scheme to use the Potomac as a great water route inland. He had seen the country when he was a surveyor, and had made trips to his fertile lands in the Ohio River Valley, which he couldn’t grow anything on, even though he had huge land holdings, courtesy of the Continental Congress.

The land of the Northwest Territory was the payment of most Revolutionary War veterans, since congress’ powers under the Articles of Confederation were laughably weak. They had virtually no means to raise money; couldn’t levy taxes, etc. and the land was donated so that Congress could pay off the inevitable war debts, including the loans John Adams had negotiated with the bankers of Holland, just as important as Franklin’s securing the military aid and recognition of France. (France’s war debts, would, by the by, directly lead to the French Revolution, which was not, ironically, happy with OURS. We nearly went to war with Revolutionary France during the John Adams administration.)

Washington and his friends hatched this plan to unite the nation commercially and make themselves wealthy in the process. Or, should I say, wealthIER.

And they actually DID that. But I’m getting ahead of the story.

Independence Hall, Philadelphia, Pennsylvania.
Photo by author © 2008

So, Washington and his pals hatch this scheme, but there’s a little problem. The Potomac is claimed by several states, and the separate laws make it impossible for them to do what they need to do to make this plan work: They will barge goods up the Ohio to the base of the mountains. Overland it, and then, using a series of locks, down the east face of the Appalachians to the Potomac and the Atlantic Ocean. Alexandria, Virginia will become the greatest port in America, and put New York to shame.

And all of these powerful men agree, enlisting their friends in every state, that they’ve got to come up with a new form of social contract that will allow interstate commerce. That is the original intent of the founders. The Constitutional Convention was called so that interstate commerce could turn America into a powerhouse of industry and trade without stepping all over ourselves in so doing, as was happening as different states negotiated trade agreements, treaties, etc.

The Constitutional Convention was called, and we all know the result. The meetings were held in secret in Independence Hall, and the doors and windows closed and guards posted, with all taking an oath of secrecy not to divulge what was happening. James Madison, who would later be President during the War of 1812 was the official Secretary, and Washington’s man, and it is from his notes that we have any idea of what happened.

Long protracted political struggle, not unlike the health care debate of 2010.

OK. Constitution enacted, they go ahead with the Potomac plan, but even though they get it going, it takes time and is never really efficient. Meanwhile, the Erie Canal is dug and puts the Potomac route out of commission, and cements New York City’s and NOT Alexandria’s commercial and maritime future.

Alexandria, Virginia became a Washington D.C. suburb

But we DO get the Constitution. This is what Ruth Bader Ginsburg refers to in her Concurrence on today’s Health Care Decision, when she says* [emphasis added]:

II A

The Commerce Clause, it is widely acknowledged, “was the Framers’ response to the central problem that gave rise to the Constitution itself.” [...] Under the Articles of Confederation, the Constitution’s precursor, the regulation of commerce was left to the States. This scheme proved unworkable, be­cause the individual States, understandably focused on their own economic interests, often failed to take actions critical to the success of the Nation as a whole. [...]

What was needed was a “national Government . . . armed with a positive & compleat authority in all cases where uniform measures are necessary.” (James Madison). See also Letter from George Washington to James Madison (Nov. 30, 1785): “We are either a United people, or we are not. If the former, let us, in all matters of general concern act as a nation, which ha[s] national objects to promote, and a national character to support.”

The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.”

[* Note: I have stripped out the legal citations and footnotes to make it legible to the average reader.]

My story is based on a book I reviewed a few years ago, The Grand Idea: George Washington’s Potomac and the Race to the West by Joel Achenbachkl, a Washington Post staff writer. I unreservedly recommend it. Taut and factual.

ii. The Commerce Clause today and the Supreme Court this morning …

We will get to how John Roberts’ cleverness enters into this tomorrow, AND I will tell you who I am quoting at the top of this article. It’s devastating stuff.

And I will explain WHY Faux Nooz™ and CNN initially got the ruling wrong this morning.

Stay tuned for the next thrilling episode.

Courage.

Go straight on to John Roberts – Too Clever by Half (conclusion)

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