Two Logical Errors in Constitutional Jurisprudence

It is not enough that honest men are appointed Judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the espirit de corps, of their peculiar maxim and creed, that "it is the office of a good Judge to enlarge his jurisdiction," and the absence of responsibility; and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual State, from which they have nothing to hope or fear? We have seen, too, that contrary to all correct example, they are in the habit of going out of the question before them, to throw an anchor ahead, and grapple further hold for future advances of power. They are then, in fact, the corps of sappers and miners, steadily working to undermine the independent rights of the States, and to consolidate all power in the hands of that government in which they have so important a freehold estate. But it is not by the consolidation, or concentration of powers, but by their distribution, that good government is effected.... Were we directed from Washington when to sow, and when to reap, we should soon want bread.

Thomas Jefferson, Autobiography, boldface added

I cannot undertake to lay my finger on that article in the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents..... With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

James Madison, 1791

I can find no warrant for such an appropriation [drought relief] in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit.... The friendliness and charity of our countrymen can always be relied upon to relieve their fellow-citizens in misfortune. This has been repeatedly and quite lately demonstrated. Federal aid in such cases encourages the expectation of paternal care on the part of the Government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood.... Though the people support the Government, the Government should not support the people.

Grover Cleveland, 1887

I think that there are very few constitutional limits that would prevent the federal government from rules that could affect your private life. The federal government, yes, can do most anything in this country.

Congressman Pete Stark (D, CA), July 24, 2010

I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012... I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.

Ruth Bader Ginsberg, Associate Justice, United State Supreme Court, interview on Egyptian Al Hayat television, 1 February 2012

Thomas Jefferson presciently anticipated that the Supreme Court, unaccountable and independent of any check or balance from the States, would ultimately serve to expand federal power far beyond the limits set by the Constitution. Over the course of American history, this expansion has taken place at different rates and for different reasons, but by the end of the Twentieth Century it has all but accomplished the task of rendering the federal government into a centralized national government with plenary powers (as was actually claimed by the Clinton Administration's Solicitor General before the Supreme Court), the last thing in the world that Jefferson or the other Founders of the nation wanted. The only Supreme Court decision since the New Deal to strike down a federal law on the ground that it exceeds federal powers, Lopez v. the United States, has indeed occurred, but it was rendered with only a five to four majority, was immediately rejected by a Democratic President who until 2001 had the power to nominate new Justices, and was also soon contradicted by a Republican Congress by the act of including in a new bill the very provision (to make guns near schools a federal crime) that was struck down by Lopez. Supposedly "conservative" commentators and jurists, such as George Will and Robert Bork, have explicitly written off the Tenth Amendment and the doctrine of enumerated powers, initially the pride and glory of the Constitution's defenders, as dead letters; and public debate in the press never, simply never, rises above the question whether a federal purpose is good to the question of whether it is within the federal government's authority. The future of limiting federal power anew therefore is not bright.

In the course of its usurpation of power for the federal government, the Supreme Court has of course been willing to resort to any sophistry or dishonesty to accomplish this purpose. Of interest here are two patently fallacious errors of reasoning, which violate two fundamental principles of logic. The first was promulgated in the early days of the Republic by John Marshall, the second by the Supreme Court after it had been intimidated and undermined by the Roosevelt Administration during the New Deal, when the last effective scruples to unlimited federal power were abolished.

Marshall, of course, was a Federalist appointee of John Adams. After the collapse of the Federalist Party in the election of 1800, the lame duck Adams sought to use federal Court appointments to entrench ideas, which had been repudiated in the Executive and Legislative branches, in the Judiciary, where they could not be undone by elections. This was an effective strategy in the consolidation of federal power, even if we only consider what was accomplished by Marshall himself. And no consolidation, of course, was more important than the Court claiming the ultimate authority to interpret the Constitution itself -- a task unassigned by the Constitution's text. Looking back from his Autobiography, Jefferson understood that this construction alone would ultimately deliver victory to the Federalists, as indeed, when the Party Jefferson himself founded, brought to power by the Great Depression, would finish the job and even claim that this was done in Jefferson's own spirit, bestowing tributes like the Jefferson Memorial and the Jefferson head nickel! Such mockeries have continued when the previous Democratic President, who bore Jefferson's actual name (William Jefferson Clinton), journeyed from Monticello to Washington for his first Inauguration in 1993, and then quoted one of Jefferson's most famous statements [1], as through his purpose were to restore Jeffersonian government. Nothing, of course, could have been further from his purpose. One does not know which would be more troubling, his ignorance, if sincere, or his cynicism, if not.[2]

Here, the logical error of interest occurs in John Marshall's reasoning in McCulloch v. Maryland in 1819.[3] The issue was the meaning of the "necessary and proper" clause of the Constitution, which states:

[Article I, Section 8, Paragraph 18] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.

Marshall said this of the meaning of "necessary":

[t]o employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.[4]

This is a grotesquely false statement. A necessary condition in logic has always meant a conditio sine qua non, a "condition without which not," i.e. precisely that "without which the end would be entirely unattainable," just as Marshall says.[5] Those laws which are necessary "for carrying into Execution the foregoing Powers" will therefore only be those without which the Powers cannot be carried into execution. What Marshall describes instead, as "any means calculated to produce the end," refers to the opposite of a necessary condition, namely a sufficient condition. A sufficient condition will produce the end, but is not necessary to produce it. Therefore, there may be many more sufficient conditions to an end than necessary conditions. Thus, to burn a haystack, any source of fire will do, from a match to a nuclear weapon; but it is not necessary to use a nuclear weapon (and one would hardly call it "proper"). By the principle laid down in Marshall's reasoning, however, the use of a nuclear weapon to burn a haystack would be "necessary," a statement which even in ordinary usage is obviously and grotesquely absurd.

Roger Pilon expresses this well:

At bottom, however, Marshall has made here one of the more elementary mistakes of logic. He has confused a necessary condition -- a condition "without which" something else would not happen -- with a sufficient condition -- a condition "calculated to produce" an end. There is all the difference in the world between restricting Congress to necessary means and permitting it to use whatever means are sufficient. The Constitution requires the former. Marshall allowed the latter. The result ever after has been the evisceration of the Necessary and Proper Clause and any restraint it might otherwise have imposed upon the means available to the federal government.[6]

If the effect of Marshall's decision is to deliver to Congress the power to do whatever it wants to effect its legitimate Constitutional purposes, this endows the federal government with vast powers unanticipated by the Founders. The end, in effect, justifies any means.

Ultimately, federal power could not become absolute unless "legitimate Constitutional purposes" could be interpreted to mean anything, expanding the ends to a scope comparable to the allowed means. This was a long time in coming. Grover Cleveland, vetoing a bill to provide federal relief for drought victims in Texas, was still echoing the judgment of James Madison that the Constitution gave the federal government no ground to exercise its powers merely for "objects of benevolence." This restraint was destroyed by the New Deal Supreme Court in more than one way. First the power of the federal government to "lay and collect Taxes" for the "common Defense and general Welfare of the United States" was interpreted in 1936 (United States v. Butler) to mean that Congress could tax and spend on anything that, in its own judgment, would contribute to the "general Welfare of the United States." Since this obviously could mean absolutely anything, the "general welfare" clause thus became a carte blanche for the federal government to do anything that could be done with money.

This subterfuge had already been suggested by Alexander Hamilton in the earliest days of the Republic, so we know what the other Founding Fathers thought of it. Jefferson wrote to President Washington himself on September 9, 1792, complaining about Hamilton:

For, in a report on the subject of manufactures, (still to be acted on), it was expressly assumed that the General Government has a right to exercise all powers which may be for the general welfare, that is to say, all the legitimate powers of government; since no government has a legitimate right to do what is not for the welfare of the governed. There was, indeed, a sham limitation of the universality of this power to cases where money is to be employed. But about what is it that money cannot be employed? Thus the object of these plans [i.e. Hamilton's], taken together, is to draw all the powers of government into the hands of the general Legislature, to establish means for corrupting a sufficient corps in that Legislature to divide the honest votes... and to have the corps under the command of the Secretary of the Treasury [Hamilton], for the purpose of subverting, step by step, the principles of the Constitution which he has so often declared to be a thing of nothing, which must be changed.

With the Constitution thus subverted, finally by Franklin Roosevelt, Jefferson foresaw the consequences of such corruption:

With money we will get men, said Caesar, and with men we will get money. Nor should our assembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when a corruption in this, as in the country from which we derive our origin, will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price. [Notes on Virginia, 1784]

Truer words were never written, as the Roosevelt Administration immediately (1938) proceeded to buy the votes of the electorate with Social Security, and later the Johnson Administration expanded on the purchase with Medicare. The political pressure to enlarge Social Security and Medicare benefits without limit is today almost irresistible, as any words of caution, warning, or reform are immediately damned by the unprincipled and opportunistic as attacks upon the elderly, poor, and disabled; and this circumstance may very well prove to be the weakness that, as wartime levels of debt are accumulated to pay ongoing peacetime benefits, actually bankrupts the United States.

No amount of cynicism in the interpretation of the "necessary and proper," the "general welfare," or the "interstate commerce" clauses, however, could devastate the Constitution as completely as would the dismissal of the veritable "Seal of the Prophets" upon the Constitution: The Tenth Amendment. What Hamilton had argued, probably disingenuously, as being already implicit in the Constitution, the Tenth Amendment made explicit: That the federal government was a government of only limited and enumerated powers, not a general government of plenary powers. This inconvenient truth was removed from Constitutional jurisprudence by the Supreme Court in 1941 (United States v. Darby), with the claim that the Tenth Amendment was merely a "truism" or "tautology," that it merely said that "all is retained which has not been surrendered." As a living principle of Constitutional interpretation, this has recently been repeated by Sandra Day O'Connor, one of the "conservative" Justices appointed by President Reagan.

Here is the second question about fundamental principles of logic. A "truism" or "tautology" is trivially true, merely expressing a definition or a truth of logic. "Declaratory," in the words of the court. It says nothing about the world and so describes or delimits no matter of fact about the world. In other words, it can make no difference on substantive issues and can without loss be ignored in substantive discussion. This is clearly what the Supreme Court wanted, as though to say, "This is something that, by definition, we don't need to worry about." So we must ask, "Is the Tenth Amendment a tautology?"

As stated by the Court, it is -- more or less. In the phrase, "all is retained which has not been surrendered," the first part, "all is retained," does not mean exactly the same thing as the second part, "which has not been surrendered," but at least one can argue that they refer to the same objects (have the same logical extension): what is "retained" is coextensive with what is "not surrendered." If this is what the Tenth Amendment said, some kind of case could be made for the Amendment being a tautology, especially if meaning is taken to be extensional. But this version is not, of course, what the Tenth Amendment actually says. The text is:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Here the first clause says the powers "not delegated by the Constitution," while the second clause says "reserved to the States...or to the people." These do not mean the same thing, and the Supreme Court could get its tautology only by altering or ignoring important parts of the meaning. First of all "delegated" does not mean "surrendered." This substitution ignores the voluntary and conditional implication of "delegated" and raises the question of just how a power might come to be "surrendered." A power can be surrendered, of course, through forcible seizure or usurpation. So it is telling and fundamental that the phrase "by the Constitution" should have been left out of the Court's interpretation. That eviscerates the meaning and force of the Amendment. Instead of saying that the federal government only has those powers " the Constitution," the implication of the Court's version is that the United States will legitimately have any powers that it can effectively acquire. Which is just the point. The Court thus has taken to itself, by the blatantly absurd use of the logical concept of a "truism" or "tautology," the power to countenance any powers whatsoever assumed by the federal government.

When attacks are explicitly made on the Tenth Amendment by politicians, activists, or the press, they usually involve dismissing the principle of the Amendment as an exploded and vicious, and probably racist, claim to "States' Rights." The reader will notice, however, that the Tenth Amendment does not contain the word "rights." It is all about powers, the legitimate powers of the federal government, and those "reserved to the States respectively, or to the people." It therefore does not say whether "reserved" powers belong to the States or to the people, just that it is one or the other -- though one will notice that that Supreme Court's 1941 principle doesn't mention either. If powers are rights, then, which they are, the Tenth Amendment would be, not just about "States' Rights" but about the rights of "the people," which means you and me. The expansion of federal power, indeed, has not merely stripped the States of their old powers but has stripped individual Americans of their old powers also, as with power over their own bodies, which federal drug laws have negated, or power over their own property, which federal environmental and other laws have negated (in violation of the "takings" clause of the Fifth Amendment).

Dismissive and contemptuous attacks on the Tenth Amendment as the last refuge of Segregationists are therefore efforts at misdirection, perhaps even consciously so, away from the terrible fact that the expansion of federal power is as much at the expense of the liberty of individual Americans as it is at the expense of the powers of the States. This misdirection is effective even while many Americans labor in fear of the IRS, DEA, OSHA, USDA, FDA, BATF, EPA, etc., through which the improper and usurped powers of the United States are exercised against its citizens. These evils can be overlooked and are often explicitly discounted by comparison with the "benefits" of Social Security, Medicare, etc. which are made possible by the equally extra-constitutional "benevolence" of the federal government. Thus, as Caesar himself could have said, the people "pay the price" of their dependence on federal "benevolence" with the veritable status of vassalage to their benefactors. Since much of the thrust of "progressive" politics in the Twentieth Century has been to the reestablishment of a paternalistic and absolutistic Mediaeval government, this is not surprising.

Nor is it surprising that the Justices of the Supreme Court, who can be impeached only for "high crimes and misdemeanors," and not for sophistry, cynicism, or dishonesty, and so stand unaccountable even for the most grotesque distortions of logic, should avail themselves of any degree of nonsense to provide a veneer of justification for their naked transfers and promotions of power to the federal government. That this is to betray their sacred trust to preserve the Rule of Law and the "Blessings of Liberty," for which two centuries of Americans have braved all hazards to seek, to protect, and to enjoy, will stand to their eternal discredit and dishonor before history and, one hopes, before Providence. What is worse, however, is how more than one generation of Americans now actually has tolerated and endorsed this betrayal, having sold their souls and birthright for naught but the pottage of the New Deal and Great Society. Verily, they have their reward, as we must have the contempt of the Founders whom we have disappointed.

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Two Logical Errors in Constitutional Jurisprudence, Note 1

Still one thing more, fellow citizens -- a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.

Thomas Jefferson, First Inaugural Address, 1801

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Two Logical Errors in Constitutional Jurisprudence, Note 2

The Left, of course, has every reason to turn against Jefferson. He would have absolutely despised modern Big Government social welfare "liberals" and all their works. It is also obvious that the present federal government would retain no legitimacy whatsoever in his eyes, and that he would never regard anyone as morally bound to obey the decrees of the sort of dictatorial bureaucracy, with pseudo-legislative and pseudo-judicial authority, that has been spawned in government at all levels. As Jefferson did say [Notes on Virginia, 1784]: "An elective despotism was not the government we fought for..."

Since most people don't know or care what Jefferson, or any other architect of American government, actually said or thought, it is easy for the Left to ignore the reality of his sentiments (just as the Right can ignore his Unitarianism and Epicureanism) -- fraudulently speaking in his name when the fraud is unlikely to be uncovered. Nevertheless, the more knowledgeable and honest are liable to be uneasy. A sign of how this can occur comes in a new book, The Long Affair, Thomas Jefferson and the French Revolution, 1785-1800, by Conor Cruise O'Brien [U of Chicago Press, 1996].

O'Brien seems to have suddenly realized how far "progressive" opinion has drifted from Jefferson's ideals. The basic attack, of course, must be from the nuclear arsenal of leftist rhetoric: Jefferson's racism discredits everything about him. This kind of attack is usually enough to dispose of contemporary political enemies. Its grotesque anachronism alone would not disqualify it. But the target is rather too large even for this weapon, so more substantive and revealing arguments must be used. These seem to be along the lines that, were Jefferson alive today, he would probably side with "extremists" and the "Militia" movement, i.e. all those (who are probably racists anyway) who are willing to use force against governmental Authority, even as Jefferson sympathized with Shays' Rebellion (1786-87) and remarked that something of the sort could be hoped for every 20 years or so.

Such a complaint is far more revealing about people like O'Brien than about Jefferson. The American institutional Left, having achieved so many of its political goals, has clearly come to advocate the sort of blind obedience to Established Authority that used to be associated more with the Catholic Church. This is the crowd willing to chant, "We are the government," even while we are mercilessly jerked around by every unaccountable and megalomaniacal bureaucrat and judge in the country. Thus, anyone who, belatedly enough, comes to perceive that the Constitution has been grotesquely twisted into justifying just the sort of government that it was intended to prohibit, and that this development, together with the practice of courts, legislators, and executives, actually contradicts the purpose of government as stated to justify the American Revolution in the Declaration of Independence, now may be seen as "extremists" who simply put themselves beyond the pale of reason and good will, whether or not they think that armed resistance is called for.

This is an all too familiar leftist rhetorical strategy: What they have gained is off limits, but what we retain is open to negotiation. Thus, a centralized government of arbitrary and nearly absolute powers is a fait accompli, while there is still a problem with my remaining property rights and personal liberties.

O'Brien's book, then, is at least honest in the sense that it mercilessly applies all the politically correct sophistries of current debate to Jefferson. This would be salutary if it disillusioned Americans with the faithfulness of current politics and practices to the ideals of the Founding Fathers. Were the United States to be explicitly transformed into a People's Republic, and the Constitution discarded, then at least people could see that a rupture had taken place. As it is, "moderate" opinion is suspicious of O'Brien's book, perhaps because the policy of deception and misdirection, intentional or not, has been so successful.

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Two Logical Errors in Constitutional Jurisprudence, Note 3

This came to my attention in an article by Roger Pilon, the Constitutional scholar for the Cato Institute, "On the Folly and Illegitimacy of Industrial Policy," in the Stanford Law & Policy Review, Volume 5:1, Fall 1993, p. 111.

Pilon's "Restoring Constitutional Government," Cato Letters, #9, 1995, is the finest discussion I have seen of the manner in which the federal government now exceeds its powers.

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Two Logical Errors in Constitutional Jurisprudence, Note 4

Annotated by Pilon to McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819).

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Two Logical Errors in Constitutional Jurisprudence, Note 5;
Necessary and Sufficient Conditions

In logic, the antecedent (the protasis of Greek grammar) of a conditional statement ("If P, then Q") is a sufficient condition, and the consequent (the apodosis) a necessary condition. In the truth table at left, we can see that a conditional sentence is only false if the antecedent ("P") is true and the consequent ("Q") false. That conditionals with false antecedents should be true often seems counter-intuitive, but it was already understood by the Stoics that this must be the case. For instance, in The Fellowship of the Ring, Part One of J.R.R. Tolkien's The Lord of the Rings, the small Hobbits are being pursued by the terrifying Black Riders. Where they seek refuge in the town of Bree, the Innkeeper, when asked about the Riders, tells the Hobbits, "If they mean well, I'm a Hobbit." Since the innkeeper is not a Hobbit, but a Man, it cannot be true that the Riders mean well. They don't. This example shows us two things:  (1) we have a true statement with antecedent and consequent that are both false. And (2) we have a conditional statement in which there is no causal connection between antecedent and consequent. This is of interest because we tend to think of natural language conditionals as implying causation. Truth functional definitions of logical connectives, however, imply no causal connections. A truth functional conditional only expresses "material implication." Sometimes those who prefer traditional logic complain about this. But there are uses in natural language and natural reasoning, as just cited, in which an analysis of material implication alone is apt.

The antecedent of a conditional is a sufficient condition because, if the conditional is true, the antecedent's truth forces the truth of the consequent. Thus, if the sentence is true, the truth of the antecedent is enough (i.e. sufficient) to infer that the consequent is true. Similarly the consequent of a conditional is a necessary condition, because, if the conditional is true, the consequent's falsehood (sine qua, "without which") forces the falsehood (non, "not") of the antecedent. Thus, if the sentence is true, the antecedent cannot be true (i.e. by necessity) unless the consequent is true. If the antecedent is false, or the consequent true, then nothing is forced in a true conditional. Thus, from a false antecedent, we don't know whether the consequent is true or false; and from a true consequent, we don't know whether the antecedent is true or false. In natural language, while the word "if" marks a condition, ordinarily a sufficient condition and an antecedent, the expression "only if" actually marks a necessary condition and a consequent. So if we say, "It will snow only if it is cold enough," we know that, if it is not cold enough, it will not snow. "Cold enough" is a necessary condition.

Logicians like to say "if and only if" a lot. This means that a sentence is both the necessary and sufficient condition of another, so that it it is true, the other is true, if it is false, the other is false. Thus, they always have the same truth values and so are logically equivalent.

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Two Logical Errors in Constitutional Jurisprudence, Note 6

Roger Pilon, "On the Folly and Illegitimacy of Industrial Policy," in the Stanford Law & Policy Review, Volume 5:1, Fall 1993, p. 111.

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