Customer Review

Reviewed in the United States on January 4, 2010
I shall limit my comments to two cases included within the book. Helvering v Davis, and Kelo v New London.

The dilemma presented to the Court in the Helvering Case is the very essence of what Hamilton referred to in Federalist 78 where ' legislative invasions of it ( Constitutional Integrity ) had been instigated by the major voice of the community'. The story of the political pressures upon the Court at this time are well documented, facing either agreement to New deal policies or Court Packing the Cardozo decision gained a majority, The heart of the case came from it's predecessor Butler which admitted a view of the 'general welfare' phrase unknown to the Ratifiers of the Constitution, who at the cautions of Brutus, an anti-federalist pamphleteer emphasized that the use of the term was to natural and easy not to allow a broad construction of Constitutional authority.
The ratifying conventions accepted Publius's assertion that the specified powers defined the term 'general welfare', not vice versa (see Federalist 41 of Madison as well for the specific response). A thorough examination of the extant documents from the ratifying conventions show no mention of concern regarding the phrase, and viewed it as Madison offered, a general caption copied from the Articles of Confederation. It is recognized that in both the Helvering case and the Butler case an effort is made to find a historical record of the view of the 'general welfare', but it is limited to considering the offerings of Hamilton, with credit to Justice Story's writings, and the opposing views of Madison. This is of course as accurate as it is compartmentalized, for it obviates the larger question of what did the "People" who ratified the Constitution import on the phrase? Even more ironic is that, the very question is included in the Butler case,
The question in such cases is, not what powers the Federal Government ought to have, but what powers have, in fact, been given it by the people. P. 297 U. S. 63. Devoid of an historical investigation of what the Conventions viewed the phrase to mean, the pitting of Hamilton against is interesting but not relative to the question at hand. The real question is not what were the opinions of Madison, or Hamilton and Story, but whether either of these contrasting opinions reflect the 'consent of the governed'. The radical change in the use of the term, the "general welfare' is the poor foundation under both Helvering and Butler.

The Kelo case is another study of changing the use of a term, as was done in the Helvering case. As the Helvering case had roots in Butler it can also be stated Kelo had roots in Hawaii v Midkiff. The term public use was distinguished as having a specific meaning, and at the beginning of the synopsis of the Hawaii case it assumed that public use and public purpose are from then on to be coterminous. Noticeably Justice O'Connor wrote the majority opinion in the Hawaii case, yet was compelled to author a dissent in the Kelo case. Without going into the minutia of the writings of O'Connor in these two decisions, a quick read of Federalist 78 shows a prediction that the munificence of the Hawaii case can backfire, as Hamilton cautioned 'as no man can be sure that he may not tomorrow the victim of a spirit of injustice, by which he may be a gainer today."

In a recent symposium Assocate Justices Scalia, and Breyer debated the use of history as vital to informing the court. Justice Breyer was of the mind he was a lawyer, not a historian. For the Court to make more reliable decisions, whether in the 1930s or in the 21st Century, the use of the historical record would seem of paramount interest to the Court. If not there exists the strong probablity that we may never be able to agree on an exegesis of the Constitution, if we keep permitting unconstitutional precedents to be added to Constitutional Law. Devoid of a complete use of the historical record, the easy and natural use of terms like 'general welfare' are subject to misinterpretation, turning Brutus's warnings into his nightmare realized.
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