Are national parks constitutional?

[angus]

Some folks believe that anything the constitution doesn't specifically mention isn't any business of the federal government (e.g., national parks)  Others believe that if the constitution doesn't specifically forbid the government from doing something (e.g., national parks), then it lies within the provenance of the federal government.  Which do you believe?  The answer to this question is the answer to whether you hold a "broad" or a "strict" interpretation.

Of course, the Constitution need not "specifically" mention something for the federal government to be able to legislate on the subject; the enumerated powers of Congress are mostly quite general. The commerce clause, for example, comprehends a vast variety of topics, as do the general welfare clause and the elastic clause.

But although a particular power need not be "specifically" authorized in order to be constitutional, it does have to fall under one or more of the broad and general powers. The establishment of parks does not fall under any of these general powers.

as if anyone wasn't clear about your view either. 

actually, yours is a tad nuanced, and you don't seem to fall so clearly into either camps, based on your posts.  You're the Sandra Day O'Connor of posters, I think.

and I'm sorry for hijacking A18's thread in this rude manner.  I'll answer the question and get out:  It's fine with me, at least I don't read in the constitution (including the aforementioned amendment) that it isn't allowed,  but then I've never claimed to be among the "strict constructionist" wing of any party.

[Emsworth]

actually, yours is a tad nuanced, and you don't seem to fall so clearly into either camps, based on your posts, I'll admit.  You're the Sandra Day O'Connor of posters, I think.

Hmm, I don't know if I should take that as a compliment. O'Connor isn't exactly at the top of my list of good Justices.

In any event, I should point out that I cannot recall an instance in which Philip and I disagreed over the extent of congressional powers, except one (we differed over whether Congress may attach conditions to a grant of money made to states, when the conditions are not reasonably related to the grant itself, under the general welfare clause).

[angus]

yeah, you are both fairly rightist compared to me and others (e.g., those of us who read the right to terminate a pregnancy, the right for two men to marry, etc.) when it comes to constitutional interpretation, and I can respect that.  I was mostly expressing disbelief over what they're not teaching in schools these days.  You're not wrong, of course, and neither am I.  This is simply a matter of interpretation.  That's a very liberal attitude, but don't ever call me a liberal, as I consider it an extremely insulting term.  And the quid I offer in exchange for your quo is that I'll not compare you to O'Connor in the future.  (though I certainly meant no offense by it.)

Let's just say that my personal favorite republican is at least as big a fan of national parks as am I.  (though I do not shoot African rhinos as he did, nor do I work out with Iron weights, nor do I have asthma.)

[Emsworth]

You must be logged in to read this quote.

I would admit that I am (like Philip) quite dogmatic about the original, strict, and plain meaning of the Constitution.

I can certainly respect those who use a different standard of interpretation (although I disagree with it), as long as it is reasonable and consistent. It's primarily with the individuals who read their own personal views and prejudices into the Constitution, and with those who argue for a "living Constitution" (i.e., the Constitution means today what it did not mean yesterday, merely because of some social factor), that I have a particular disagreement.

[angus]

I suppose you can, imho, read just about anything you want into the preamble.  That said, I wouldn't.  And I'm usually a pretty good conservative when it comes to not wasting money and respecting the president's judgement when it comes to court nominees.  But if the people want national parks, and the constution doesn't say we can't have them, then it's my take that we can.  National Parks are wonderful places.  My girlfriend and I visited Yosemite often before we were married, and I've been to many other national parks, national wildlife reserves, national battlefields, and national seashores.  There are folks who lament the fact that there's a Pizza Hut on the grounds where their ancestors defeated a rebellion in Antietam.  There are folks who lament the extinction of species whose habitats have been destroyed.  Salvation from this lamentation isn't something for which the constitution should be a guarantor, I'll alllow, but the government has the right to set aside any lands it owns for the purpose of preserving it for posterity.  Whether its significance is historical, cultural, or natural.  I don't go so far as to treat any of this with religious reverence, and I certainly wouldn't refuse to consider drilling in parkland, just on principle, if I could be convinced that the economic advantages outweighed whatever perceived disadvantages exist, but yes, the constitution doesn't specifically prohibit the federal government from parkland creation.

[Emsworth]

Bottom line here is that you can, imho, read just about anything you want into the preamble.

Certainly you can. That is why we are fortunate that the preamble does not have the force of law.

You must be logged in to read this quote.

On the contrary, I would argue that it does say that we can't have national parks. It doesn't say so specifically, but the Tenth Amendment declares that "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." The power to create national parks was not delegated to the United States; therefore, the Constitution does prohibit their establishment.

Nothing wrong with state parks, though.

[A18]

When judges change the meaning of the Constitution, we no longer have a Constitution.

I don't really like the term "originalism." I prefer "not making random **** up as we go along."

[angus]

even when I first read the title of this thread the tenth amendment came into my mind.  But, and you're a good enough historian to know this, it is a living, breathing document.  (with apologies to Antonin Scalia)  For example, the United States is like the Mafia in the sense that once you join, you can't quit.  You're in for life.  Of course it doesn't say that specifically, and one could argue that the tenth amendment says the opposite.  But the South Carolina legislature called the government's bluff on this one, and lost.  Maybe we weren't supposed to be like the Mafia, by Madison's reckoning, but the GOP made it so.  It's called nationalism.  Call it fascist, if you want to be liked by members of your own party, after all it's all the rage to call anything the GOP does fascist, but it's a fact.  You can't quit us no matter what.  And it was at the point of a Republican bayonnet that it was made this way.  Thus, the living breathing document.  So don't give me some old-school Libertarian Jeffersonian interpretation.  You're living in a graveyard when you do that.  The constitution can be "strictly" or "broadly" interpreted.  I respect your point of view, although I don't agree with it.  I'm only asking that you respect mine, and it is this:  the tenth amendment does NOT say that the states have every possible conceivable right they can think of, and the federal government has some that we might not think of today.  In 1789.  Or 2005.  And that among those are the legitimacy of the preservation of land for historical, natural, or cultural appreciation.

[A18]

I am not a strict constructionist, and you are not a loose constructionist. When you simply ignore a very plain rule of construction, you've entered a realm tantamount to no construction at all.

[angus]

fair enough.  I'm just ranting and haven't voted anyway.  but by your logic neither is Social Security, Funding of Arts and Humanities, National Institutes of Health research, etc.  I think you may be playing this game whereby you take your position to the extreme.  RightWingNut was very good at that too.  I freely admit that I'm not as good at that game, and frankly never have claimed to be.  But seriously I don't think national parks are unconstitutional.  Now, here's the logical fallacy:  The statement "I don't think national parks are unconstitutional" equals "I do think national parks are constitutional"  Of course the statements aren't equivalent.

anyway, who the f uck knows??  that's what we have courts for, after all.

[A18]

but by your logic neither is Social Security, Funding of Arts and Humanities, National Institutes of Health research, etc.

All of those things are also unconstitutional, in my opinion.

[Emsworth]

When judges change the meaning of the Constitution, we no longer have a Constitution.

I completely agree.

Too many judges have written into the Constitution their own personal views, rather than objectively analyzing the original understanding of the instrument. If a judge disagrees with any part of the Constitution, he is always free to resign. If he is so inclined, he is free petition Congress and the states for a constitutional amendment. But he is not free to rewrite the Constitution, under the guise of interpretation.

But, and you're a good enough historian to know this, it is a living, breathing document.

If you mean that the Constitution contains words that must be applied to new situations, then you are perfectly correct. But if you mean that the Constitution means today what it did not mean yesterday--if you mean that the Constitution is inscribed in the sands, changing in meaning with each new political, social, or economic wave--then I must completely disagree.

but by your logic neither is Social Security, Funding of Arts and Humanities, National Institutes of Health research, etc.

No, they aren't constitutional, either.

[angus]

You're a very tenacious bastard, aren't you?  And you made a consistent case.  And I'm tired.  I'll vote no.

[angus]

wow, now that I've voted, I see that very few of us vote no, even though you made a better case for NO than anyone did for YES.  When this happens, I always have to wonder if people aren't just voting on impulse.  Ah, well, does it really matter?  I'm tired.  Good night.

[jimrtex]

No, he is correct. Hamilton, in his Report on Manufacturers, said, "The only qualification of the generallity of the Phrase [General Welfare] is this -- That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact ... throughout the Union, and not being confined to a particular spot."

You have highlighted the wrong word, and, perhaps inadvertantly, left out part of the text.  Let's also include the two preceding paragraphs.

"The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.

The only qualification of the generallity of the Phrase is this -- That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possiblity, throughout the Union, and not being confined to a particular spot.

Hamilton says that there is no question that dissemination of knowledge about agriculture is a proper provision of the general welfare.  The government might distribute pamphlets about modern agricultural methods; it might conduct research to determine better agricultural methods.  It could operate a research facility at Gettysburg that would investigate methods of growing wheat on sloping terrain, or the operation of peach orchards.

But Hamiliton also says that it would not be practical to iterate all possible
objects encompassed within the general welfare.   So even though his specific examples were of the practical arts of agrciculture, manufacturing, and commerce; it does not exclude social and cultural education.

So just as the United States may promote modern agricultural methods in the provision of the general welfare, it might promote the study and understanding of the history of the United States.  This could include providing textbooks or supporting historical research.  If the United States government can publish textbooks describing the battle of Gettysburg, it can certainly preserve the actual battle site and other artifacts.

Dissemination of the history of the United States would not be confined to southern Pennsylvania, even though a facility used in the dissemination of that history is located there.

You must be logged in to read this quote.

Hamilton was arguing for that "welfare" was a policy question.  And preservation of the battle site at Gettysburg is of clear national (general) benefit rather than mere local (particular or specific) benefit.

You must be logged in to read this quote.

Madison was wrong.

[jimrtex]

No, he is correct. Hamilton, in his Report on Manufacturers, said, "The only qualification of the generallity of the Phrase [General Welfare] is this -- That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact ... throughout the Union, and not being confined to a particular spot."

That is indeed true. It is not the benefit that must be general--theoretically, any benefit is general, no matter how remotely. It is the actual operation, not merely the benefit, which must be general in order for the clause's requirements to be satisfied.

Hamilton said that dissemination of learning about agriculture was encompassed within the general welfare.  Describe how the federal government might do this.

You must be logged in to read this quote.

The Butler decision confirmed that the particular agriculture program was an application of the general welfare.  It indeed would have operated throughout the country.  What the court ruled was that providing for the general welfare can not be used to override other provisions of the Constitution.

It was OK to make payments to farmers and to levy taxes to fund the payments.  It was not OK to condition the payments on the farmers performing certain acts, to in effect regulate agricultural production through bribery.

[Emsworth]

"The only qualification of the generallity of the Phrase is this -- That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possiblity, throughout the Union, and not being confined to a particular spot." (Hamilton)

One cannot just concentrate on the former part of the sentence and ignore the latter. Hamilton makes it abundantly clear that the actual operation must extend throughout the Union. The operation of a park is, undoubtedly, "confined to a particular spot," and therefore not within the purview of the spending clause.

As Hamilton notes, it is not sufficient that the welfare be "general." It must be "General and not local"--general, as distinct from local. When something falls firmly within the sphere of the states (as establishing parks) it is not comprehended by the general welfare clause.

This distinction was very well-understood at the time of ratification; it is evidenced by the passage quoted above from Hamilton: the welfare must be general, and not local, its operation extending throughout the Union. In the Virginia ratifying convention, Edmund Pendleton suggested that the purposes of federal and state spending and taxing powers, being "limited to the different objects, ... can no more clash than two parallel lines can meet."

Furthermore, Justice Joseph Story, in his Commentaries on the Constitution of the United States, said, "if the welfare be not general, but special, or local, as contradistinguished from national, it is not within the scope of the constitution." He adds that appropriations under the spending clause must be to "limited to objects of a national character."

James Monroe, a delegate to the Virginia ratifying convention, similarly declared later that the general welfare clause did not "break down all the barriers between the states and the general government, and consolidate the whole under the latter." John Marshall, another delegate, later noted that Congress may tax (and thereafter spend) "for those purposes which are within the exclusive province of the states." Therefore, I would conclude that the state-national distinction is not merely a fictional or imaginary one, but one that was actually the original understanding of the Constitution.

Hamilton said that dissemination of learning about agriculture was encompassed within the general welfare.  Describe how the federal government might do this.

The actual operation in this case--dissemination of this information--extended throughout the Union. The actual operation of a park, on the other hand, does not.

[Bleeding heart conservative, HTMLdon]

wow, now that I've voted, I see that very few of us vote no, even though you made a better case for NO than anyone did for YES.  When this happens, I always have to wonder if people aren't just voting on impulse.  Ah, well, does it really matter?  I'm tired.  Good night.

People are not voting "on impulse", they are voting to preserve and protect our national treasures.  I believe that the vast majority of the American people would answer "yes".

Emsworth always makes a great case for everything he says regarding the Constitution, as Constitutional law is his interest and he is very skilled at it.  Those of us who are interested in graphic arts make better graphics.  People interested in cars make better mechanics.  That doesn't mean he is making the right argument that would do the most good for the country.  In fact, I belive his view of the world is down right terrifying.  Would you want your children to live in a world with no preservation of parks and wildlife, no protections for workers, and no protections for the rights of minorities?

Surely not.  And some day, I hope Emsworth will grow - just as America has -  to realize that.

[A18]

I highlighted the correct words. Its operation, not benefit, must extend throughout the union even under Hamilton's very broad interpretation.

You must be logged in to read this quote.

Madison was wrong.

No, he was quite plainly correct on this. You can disagree with his interpretation, but you can't deny that if Congress can spend money on whatever it wants, it can do each and every one of those things.

Certainly, education and transportation have more of a national benefit than some park.

[Emsworth]

That doesn't mean he is making the right argument that would do the most good for the country.

I completely agree with htmldon. I am not arguing about what would or would not do the most good for the country. I am arguing about what the Constitution does or does not permit. Whether something is good or bad is completely irrelevant.

You must be logged in to read this quote.

The states are perfectly free to preserve parks, protect workers, or protect the rights of minorities. The federal government is also free to protect the rights of minorities in certain circumstances.

[Bleeding heart conservative, HTMLdon]

Certainly, education and transportation have more of a national benefit than some park.

Are you saying that protection of the Grand Canyon, or the geisers at Yellowstone does not have a national benefit?

[Emsworth]

Certainly, education and transportation have more of a national benefit than some park.

Are you saying that protection of the Grand Canyon, or the geisers at Yellowstone does not have a national benefit?

No, he is not saying that parks do not have a benefit. He is saying that education and transportation have more of a benefit.

I would agree with him: I think that educating people and maintaining the interstate highways is more important than maintaining a park.

[MODU]

I would agree with him: I think that educating people and maintaining the interstate highways is more important than maintaining a park.

But we can have all three, and, we can have them together.  National Parks serve as great educational centers.  Additionally, you have many highways and parkways through National parks which provide for a touch of nature from the comforts of your car, while at the same time, preserving the nature around the road.  I don't think we need to make these concepts mutually exclusive.

[Bleeding heart conservative, HTMLdon]

Certainly, education and transportation have more of a national benefit than some park.

Are you saying that protection of the Grand Canyon, or the geisers at Yellowstone does not have a national benefit?

No, he is not saying that parks do not have a benefit. He is saying that education and transportation have more of a benefit.

I would agree with him: I think that educating people and maintaining the interstate highways is more important than maintaining a park.

They are all important tasks.  And all of them are important enough to either be performed by the Federal government or with appropriate federal oversight.

[Bleeding heart conservative, HTMLdon]

I would agree with him: I think that educating people and maintaining the interstate highways is more important than maintaining a park.

But we can have all three, and, we can have them together.  National Parks serve as great educational centers.  Additionally, you have many highways and parkways through National parks which provide for a touch of nature from the comforts of your car, while at the same time, preserving the nature around the road.  I don't think we need to make these concepts mutually exclusive.

Amen.