Photo: The signing of the Constitution, by Barry Faulkner (National Archives)
Debates that the United States government has overstepped its bounds have been at the forefront of media attention ever since it was leaked that the National Security Administration has secretly been spying on American citizens.
But these debates are nothing new. A question that split early Americans was, Who has more power: States or the federal government?
While reading some political science textbooks like Constitutional Law for a Changing America I came across the McCulloch v. Maryland (1819) Supreme Court case that questioned the constitutionality of a National Bank while highlighting states’ rights vs. the federal government.
Thomas Jefferson wrote in 1791 that a National Bank is silly:
“To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”
That sounds very Edward Snowdenian.
Alexander Hamilton supported the bank:
“(Government has) a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.”
So basically think a moral Machiavelli, or a post 9/11 military leader, intelligence official or politician creating more programs to stop America’s enemies.
Hamilton’s position won,and when the bank’s constitutionality came into question and worked its way to the Supreme Court, the judges agreed.
But they said it with a very Jeffersonian (read “Snowdenian”) twist:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.
While it may be debatable if the NSA’s Prism program and other domestic surveillance programs are “legitimate” and “within the scope of the constitution” and by “all means which are appropriate,” the fact of the matter is that those three qualifications were probably not debated much by the intelligence officials and others who created the program.
But to be fair, as noted earlier, the history of the U.S. has always been a question of checks and balances and how much power the government should have.
The revelation that the NSA has a secret infrastructure spying on American citizens is just the latest of a long line of debates in our democracy.
But I’ll end on a more cynical note: Many of our other political debates in U.S. history have been open and not just the result of someone spilling info about a program that has lived in the shadows for four years.
Sources: Constitutional Law for a Changing America: Institutional Powers and Constraints by Lee Epstein and Thomas G. Walker. The Secret War by Matthew Aid.