"How Scalia Distorts the Framers" by Robert Parry

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The outrageous, almost drunken rants of recent weeks from Scalia, where he rails on the president's policies, something that was thought to be out of bounds for a sitting Justice, just keeps on getting crazier.

In this awesome observation by Robert Parry, I just learned that Scalia quotes Alexander Hamilton in his dissent, but applies his comment to the Commerce Clause, whereas it was referring to the Necessary and Proper Clause, and as if that weren't enough, quotes him as sincere in the words, when as Parry points out, Hamilton was satirizing his opponents, entirely burlesquing their alarmist rhetoric.

Quote Parry:In their angry dissent on June 28, the four wrote: “If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor pro­fane.’” They footnoted Hamilton’s Federalist Paper No. 33.

That sounds pretty authoritative, doesn’t it? Here’s Hamilton, one of the strongest advocates for the Constitution, offering a prescient warning about “Obamacare” from the distant past of 1788.

Except that Scalia and his cohorts are misleading you. In Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Constitution that grant Congress the power to make laws that are “necessary and proper” for executing its powers and that establish federal law as “the supreme law of the land.”

Hamilton also wasn’t condemning those powers, as Scalia and his friends would have you believe. Hamilton was defending the two clauses by poking fun at the Anti-Federalist alarmists who had stirred up opposition to the Constitution with warnings about how it would trample America’s liberties.

In the cited section of No. 33, Hamilton is saying the two clauses had been unfairly targeted by “virulent invective and petulant declamation.”

It is in that context that Hamilton complains that the two clauses “have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane.”

In other words, last week’s dissent from Scalia and the three other right-wingers does not only apply Hamilton’s comments to the wrong section of the Constitution but reverses their meaning. Hamilton was mocking those who were claiming that these clauses would be “the hideous monster.”

Read the rest at http://consortiumnews.com/2012/07/04/how-scalia-distorts-the-framers/

ProudPrimate's picture
Jul. 31, 2007 3:01 pm


What a hack! Scalia is a victim of hubris addiction. Wouldn't it be nice if he could learn from Uncle Clarence Thomas how to be silent and nod instead of opening his yap or putting his opinions first. This is an insult to the character in Uncle Tom's Cabin who was actually a pretty nice guy. Thomas could be replaced by a lawn jockey statue.

Apr. 26, 2012 11:15 am

Whenever anyone cites the Founders as a monolithic group, as though they are a cross between Talmudic scholars and Zen Kung Fu masters, that person is totally ignorant of history. The fouders reached these compromises we have in our constitution after an entire summer of screaming matches.

EJ Dionne:

When Treasury Secretary Alexander Hamilton proposed that the federal government establish a Bank of the United States in 1790, his idea was strongly opposed by James Madison, his partner in writing both the Constitution and the Federalist Papers that defended it.

Madison wasn’t just against the bank. Setting a pattern for the future, he insisted that its creation would be unconstitutional. Those who claim we can be so certain of the “original” intentions of the Founders should take note: If two of the authors of the Constitution came to such a stark point of disagreement so quickly, what exactly does “originalism” mean?

Phaedrus76's picture
Sep. 14, 2010 7:21 pm

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