Thirteen Clear Factual Errors in Richard Stengel’s Essay on the Constitution...

Thirteen Clear Factual Errors in Richard Stengel’s Essay on the Constitution (And I Am Looking for Your Help) (Update: My Letter to the Editor)

via Patterico's Pontifications by Aaron Worthing on 6/28/11

[Guest post by Aaron Worthing]

Late last week, I fisked Richard Stengel's Time Magazine cover story  "One Document, Under Seige" (update: click here for the one page version) but it deserves more discussion.  I consider it nothing less than a journalistic scandal that this piece was (1) a cover story, (2) written by their Managing Editor, (3) who serves in an organization dedicated to teaching other journalists about the Constitution, and yet it is rife with factual errors, including many that are obvious simply by reading the Constitution.

My mistake in the last post on the subject was trying to catalogue everything wrong with it, leading me to take issue with his philosophy, too and thus what got lost for some was the simple fact that Stengel was clearly factually wrong on many points, often when the facts could be determined by doing nothing more than reading the Constitution.

So this time, we are going to focus solely on the factual errors.  There are thirteen of them and like the lawyer that I am, I will start off with his most egregious error and end with the least egregious.  Here are the thirteen errors, in short:

1. The Constitution does not limit the Federal Government.
2. The Constitution is not law.
3. The Citizenship Clause of the Fourteenth Amendment emancipated the slaves.
4. The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans.
5. The original Constitution declared that black people were to be counted as three-fifths of a person.
6. That the original, unamended Constitution prohibited women from voting.
7. Inter arma enim silent leges translates as "in time of war, the Constitution is silent."
8. The War Powers Act allows the president to unilaterally wage war for sixty days.
9. We have only declared war five times.
10. Alexander Hamilton wanted a king for America.
11. Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.
12. Naturalization depends on your birth.
13. The Obamacare mandate is a tax.

When I am done with this post, I am going to make a bleg where I ask you to try to help get out the word about this egregiously incorrect cover story.  So stay tuned to the end (or jump ahead if you feel like it).
But first here, point-by-point, is proof that each one of those statements are errors.
False Claim #1: The Constitution does not limit the Federal Government.
The relevant passage:

If the Constitution was intended to limit the federal government, it sure doesn't say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the "necessary and proper" clause, which delegates to Congress the power "to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Limited government indeed.

(Emphasis added.)  [Update: If you want to check the veracity of my quotes from Stengel's piece, I suggest you use this single-page version of the piece, and then perform a Control-F search.]
Proof that he is wrong: The Constitution is filled with limitations on Federal Power.  For instance, Article I, Section 9 says:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.  [A.W.: They're talking about the slave trade.]

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another….

No Title of Nobility shall be granted by the United States[.]

And then there is Article III, Section 3, limiting what the government can do to a traitor:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

It should be noted that Corruption of Blood is a doctrine by which the family of a traitor would suffer because of their alleged corrupted blood, so this is limiting the government's ability to punish the children of a traitor for his or her treason.
And then there is the Bill of Rights.  As I noted last time, Mr. Stengel considered them as of a piece with the original Constitution, an interpretation I concurred with.  Every single one of them represents a limitation on federal power, so it is sufficient to only quote a few of them:

Amendment 1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment 2

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
….

Amendment 9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 10

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.

So contrary to his suggestion, the Constitution does indeed limit the power of the Federal Government, a point most of us learned in elementary school.
False Claim #2: The Constitution is not law.
The relevant passage:

Originalists contend that the Constitution has a clear, fixed meaning. But the framers argued vehemently about its meaning. For them, it was a set of principles, not a code of laws. A code of laws says you have to stop at the red light; a constitution has broad principles that are unchanging but that must accommodate each new generation and circumstance.

(emphasis added)

Proof that he is wrong: Again, the Constitution itself contradicts this claim.  Article VI, Paragraph 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land[.]

And of course in my long fisking piece, I cite several passages from Marbury v. Madison that is on point as well, but the Constitution is enough.
False Claim #3: The Citizenship Clause of the Fourteenth Amendment emancipated the slaves.
The relevant passage:

In drafting the 14th Amendment, Congress was definitely not thinking about illegal immigration. At the time, the country needed a lot more immigrants, legal or otherwise. Congress was thinking more practically. It wanted to emancipate blacks and allow them to vote so that white Southern Democrats would not try to reverse the gains of the Civil War.

(emphasis added)
Proof that he is wrong: The amendment that emancipated the slaves was the thirteenth.  (Duh.)
And notice for bonus points that he is conflating slaves and black people.  Not all black people were slaves prior to the Civil War.  This is a running problem with him as we will see in False Claim #5.
False Claim #4: The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans.
The relevant passage: Eagle-eyed readers might have seen that falsehood in the last quoted passage from Stengel.  So here we go again:

The 14th Amendment reversed that. In drafting the 14th Amendment, Congress was definitely not thinking about illegal immigration. At the time, the country needed a lot more immigrants, legal or otherwise. Congress was thinking more practically. It wanted to emancipate blacks and allow them to vote so that white Southern Democrats would not try to reverse the gains of the Civil War.

(emphasis added)
Proof that he is wrong: The Fourteenth Amendment did not end the exclusion of African Americans from the franchise.  In fact, it specifically allowed for the exclusion to continue, although with a penalty.  From the Fourteenth Amendment, Section 2:

[W]hen the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

It's dense language, but if you work through it you realize that it is saying that if you deny men over the age of 21, etc. the vote, then you have to reduce the state's representation accordingly.  Furthermore, it is simply a fallacy to suggest (as Stengel apparently believes) that all citizens automatically vote.  An American-born child is a citizen, but cannot vote until he or she reaches a certain age.  And in 1868, when this amendment was ratified, women were not generally allowed to vote, and yet they were citizens.
Racial discrimination in the franchise was not outlawed until the Fifteenth Amendment was ratified in 1870.

False Claim #5: The original Constitution declared that black people were to be counted as three-fifths of a person.
The relevant passage:

The framers were not gods and were not infallible. Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion — but they also gave us the idea that a black person was three-fifths of a human being…

(emphasis added)
Proof that he is wrong: In fact, the infamous (and now inoperable) three-fifth clause did not declare that black people were to be counted as three-fifths, but rather slaves were to be counted that way.  Here's the relevant portion of the Constitution:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

And notice how the slaves are mentioned in this very indirect way, calling them simply "other Persons."  Other than what?  Other than free people, other than indentured servants, and other than Indians who were not taxed.  So only by process of elimination do you realize they were talking about slaves.
And no, not every black person living in that time were slaves.  And of course there is a deeper historical ignorance that this goes to.  Stengel appears to believe this provision dehumanized the slaves by counting them as only three fifth of a person, when in fact the true outrage was that they were counted at all when calculating representation (see my last post for a fuller explanation).  But I am sticking to easily verifiable inaccuracies.
False Claim #6: That the original, unamended Constitution prohibited women from voting.
The relevant passage: That is right, it's another two-fer, where he had two errors in the same passage:

The framers were not gods and were not infallible. Yes, they gave us, and the world, a blueprint for the protection of democratic freedoms — freedom of speech, assembly, religion — but they also gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote[.]

(emphasis added)
Proof that he is wrong: Now, this time I can't point to a specific clause of the Constitution because we are proving a negative.  So instead I ask you to look at the original Constitution, before the Nineteenth Amendment was added, and ask yourself if there is a single word that forbid women from voting?  It isn't there.
Now, Section 2 of the Fourteenth Amendment allows for gender discrimination in voting without any penalty in representation.  But there is a world of difference between allowing something to be prohibited, and prohibiting it.  Simply put, the Constitution did not say what he claimed it did.
False Claim #7: Inter arma enim silent leges translates as "in time of war, the Constitution is silent."
The relevant passage:

There is an old Latin phrase, inter arma enim silent leges, which roughly translates as "in time of war, the Constitution is silent." But it's not just in times of war that the Constitution is silent.

Proof that he is wrong: Ask any lawyer or expert in Latin.  This is one of many citations that state what I know off the top of my head.  What it says is: "in times of war, the laws are silent."  Laws, not the Constitution.  The Romans didn't talk about the Constitution, because they had none to talk about.  They only had laws.
I suppose you could stretch the word "laws" to include the Constitution, as one of our laws.  That is indeed what people mean when they suggest applying this doctrine in America.  But see False Claim #2: he doesn't think the Constitution is law.
And don't even get me started on the fact that he didn't seem to understand that the phrase refers to the law being suspended in its entirety.  He seems to think it means to be silent on one issue.

False Claim #8: The War Powers Act allows the president to unilaterally wage war for sixty days.
The relevant passage: There is no one passage, but if you read the section on Libya, he never indicates once that he understands what the War Powers Act actually says.  For instance, he writes here:

May 20 marked the 60th day since President Obama launched military action in Libya. Speaker of the House John Boehner has asserted that the President is in violation of the War Powers Resolution, passed in 1973, which requires the President to withdraw U.S. forces from armed hostilities if Congress has not given its approval within 60 days.

Proof that he is wrong: Contrary to what he seems to believe, the War Powers Act states that the President may not introduce our forces into hostilities except if authorized by Congress (broadly speaking), or if we are attacked.  From the statute:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

So as you can see the President is not given a blank check to enter into hostilities, but only if given permission by Congress or in defense.  The famous sixty and ninety day deadlines apply solely to the defense justification.  Therefore the War in Libya was illegal from day one (unless you believe the President's ridiculous claim that bombing tanks is not hostilities).  And if Stengel knows it was illegal from the get-go, he gives no indication.
False Claim #9: We have only declared war five times.
The relevant passage:

Since the signing of the Constitution in 1787, Congress has declared war exactly five times: the War of 1812, the Mexican War, the Spanish-American War and World Wars I and II.

Proof that he is wrong: The problem here is that he doesn't understand what the Declaration of War Clause means in the Constitution.  It is not simply conferring to Congress the power to write a piece of paper called a "Declaration of War."  The Constitution is concerned with substance, and not form.  The substance of the power "to declare War" (Article I, Section 8, Paragraph 10), is the power to authorize the President use the powers of war.  Therefore, any authorization will be sufficient.
For instance, in Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973), challenging the legality of the Vietnam war, the court wrote:

But the aforesaid question invites inquiry as to whether Congress has given, in a Constitutionally satisfactory form, the approval requisite for a war of considerable duration and magnitude. Originally Congress gave what may be argued to have been its approval by the passage of the Gulf of Tonkin Resolution[.]…  However, that resolution cannot serve as justification for the indefinite continuance of the war since it was repealed by subsequent Congressional action…. Apparently recognizing that point, the Government contends that Congressional approval has been given by appropriation acts, by extension of the Selective Service and Training Act, and by other measures.

We are unanimously agreed that it is constitutionally permissible for Congress to use another means than a formal declaration of war to give its approval to a war such as is involved in the protracted and substantial hostilities in Indo-China.

So in fact there have been many more declarations of war than the five times we have used a piece of paper entitled a "declaration of war."  Recent examples included the authorization for military force issued in relation to the war in Iraq and the War on Terror generally.

False Claim #10: Alexander Hamilton wanted a king for America.
The relevant passage:

Alexander Hamilton wondered whether Washington should be a king.

Proof that he is wrong:

In fact, Hamilton said no such thing.  The closest he came to saying that was in suggesting that our Constitution include a lifetime appointment for the Presidency, at least according to Madison's notes of the convention, Hamilton saying:

Let one branch of the Legislature hold their places for life or at least during good behaviour. Let the Executive also be for life. He appealed to the feelings of the members present whether a term of seven years, would induce the sacrifices of private affairs which an acceptance of public trust would require, so so as to ensure the services of the best Citizens. On this plan we should have in the Senate a permanent will, a weighty interest, which would answer essential purposes. But is this a Republican Govt., it will be asked? Yes if all the Magistrates are appointed, and vacancies are filled, by the people, or a process of election originating with the people.

It might be fair to say his vision of the executive was too close to a monarchy model for our tastes (and I would agree).  You might even call what he proposed an "elective monarch."  But it is simply wrong to suggest that he wanted to make anyone a king without at least noting he wanted that person to be elected.
(It's also a stretch to say he proposed that Washington be the king, but it's within tolerance.  To play devil's advocate, you could argue that everyone in the convention knew that Washington would be our first president, and therefore Hamilton was at least implicitly talking about Washington, even if not by name.)

False Claim #11: Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.
The relevant passage:

But the idea that we can default on our debt is not only reckless; it's probably unconstitutional. No one is saying the debt is wise and prudent — far from it — but defaulting on it flies in the face of one of the few absolute proscriptions in the Constitution, Section 4 of the 14th Amendment: "The validity of the public debt … shall not be questioned." The idea is that the U.S. shouldn't weasel out of its debts. It does not say that we can't undertake dumb obligations — the Constitution can't prevent bridges to nowhere — but that we need to pay off the public obligations that we do set for ourselves, whether those are Social Security payments to retirees or interest to Chinese bankers.

(emphasis added)
Proof that he is wrong: Social security is not a legal debt.  Morally, you might feel "we owe them" and you might be right, but there is no bond in their hands, no promissory note.  It is simply a benefit paid to some Americans based on taxes collected from other Americans.  As such, it is no different from a number of entitlements, which can frankly be modified or repealed the moment we find the political will to do so (which is the trick, isn't it?), as we did with Welfare in the 1990's.

False Claim #12: Naturalization depends on your birth.
The relevant passage:

All around the world, there are basically three ways of acquiring citizenship: by birth, by blood or by naturalization. All of them depend on the circumstances of one's birth.

Proof that he is wrong: While it is correct to say that gaining citizenship by being born here, or by being born of Americans abroad, is gaining citizenship because of the circumstances of one's birth, naturalization has nothing to do with birth.  Any person born anywhere in the world of anyone's parents who is not a citizen can come to America and become a citizen.  Of course it is a colossal pain to do it, but it can be done and it is about your tolerance for red tape rather than your birth.

False Claim #13: The Obamacare mandate is a tax.
The relevant passage:

Supporters of Obamacare note that it's not a mandate but, in effect, a tax, imposed on people who do not buy health insurance. And that it's not universal; people who are on Medicare and Medicaid, for example, don't need that coverage.

Proof that he is wrong: Now, first, I admit that the passage is ambiguous as to whether he believes it is a tax, as is the case throughout his discussion of Obamacare.  But at the very least, it seems like it would have been a good time to mention that it is not a tax, right? And this isn't just my opinion.  Literally not a single court in America has found the mandate to be a tax.  That is, even when upholding the law, the courts have refused to call it a tax.
And bluntly, the basic principles of statutory interpretation lead us to that conclusion.  To borrow Stengel's phraseology, if the mandate was intended to be a tax, the law sure doesn't say so.  Judge Vinson wrote a separate opinion discussing whether the penalty was rightfully considered a tax and I summed up his findings at the time as follows:

• The act called it a penalty, not a tax.
• Earlier versions of this law, and similar proposals called it a tax.  So as they went through their drafts, they changed the word "tax" to "penalty."
• The law enacts a number of taxes and labels them as taxes, but not this alleged "tax."  This is an example of expressio unius, a concept I explain here.
• The findings of fact (in the statute) invoked Congress' power under the commerce clause, but not the taxing power [in relation to the mandate].  Meanwhile the taxes in the act were justified under the taxing power.
• When the CBO ran its cost estimates, tallying how much the law would cost versus how much revenue it would raise, it didn't include any money from the mandate.  In other words, the CBO acted as though the mandate would raise absolutely no revenue at all.
• "[T]he Act lists seventeen 'Revenue Offset Provisions'… and … it further includes a section entitled 'Provisions Relating to Revenue'….  However, the individual mandate penalty is not listed anywhere in them."

Thus when you put all of that together, the evidence is overwhelming that it is not a tax, but a penalty.
——————————–
How You Can Help.
So, there you have it, thirteen glaring factual errors, listed with the most egregious errors first.  I consider it no less than a scandal that so many clear, egregious errors was allowed in a cover story. It is all the more shocking because very often the falsity of the claims could have been verified by simply reading the Constitution. This is inexcusable for a publication of Time's stature.
So if you agree with me, that this is scandalously bad, let me suggest that you guys try to help me raise awareness of the issue.  For instance, you can go to the article and fill the comments with a version of my list:
13 Objectively false statements in Stengel's Article on the Constitution.

1. The Constitution does not limit the Federal Government.
2. The Constitution is not law.
3. The Citizenship Clause of the Fourteenth Amendment emancipated the slaves.
4. The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans.
5. The original Constitution declared that black people were to be counted as three-fifths of a person.
6. That the original, unamended Constitution prohibited women from voting.
7. Inter arma enim silent leges translates as "in time of war, the Constitution is silent."
8. The War Powers Act allows the president to unilaterally wage war for sixty days.
9. We have only declared war five times.
10. Alexander Hamilton wanted a king for America.
11. Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.
12. Naturalization depends on your birth.
13. The Obamacare mandate is a tax.

Positively spam them until they have to pay attention.  Or you could even go to where I left a substantially similar comment and "like" that comment, raising its prominence.  If a comment is liked enough times they might be more likely to pay attention.  Or you can email the "editor," (not sure which editor we are talking about) here.
In all communications, be polite, and stick to the facts, so they cannot dismiss you as a kook.
And you might spread this message to other sites.  I am deliberately trying to create enough of an outcry so that they at least have to issue the mother of all corrections.  Indeed, I believe that someone should be fired over this.  They are entitled to their own opinions, but they are not entitled to their own facts.
So please, pretty please, will you help me with this?
Update: I wrote a letter to the editor at the link above.  Here's the text of it:

Dear Sir or Madam,
Time's cover story of June 23, 2011, entitled "One Document, Under Siege" by Richard Stengel falls below any journalistic standard for accuracy.  Of course as an opinion piece, there is some leeway on disputed points, but some facts are just facts.
I have counted thirteen egregious and inexcusable errors in Mr. Stengel's piece.  Many of these errors could have been detected simply by reading the Constitution itself.  It is dismaying to see that in the annual history issue.  Those errors are:

1. The Constitution does not limit the Federal Government.
2. The Constitution is not law.
3. The Citizenship Clause of the Fourteenth Amendment emancipated the slaves.
4. The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans.
5. The original Constitution declared that black people were to be counted as three-fifths of a person.
6. That the original, unamended Constitution prohibited women from voting.
7. Inter arma enim silent leges translates as "in time of war, the Constitution is silent."
8. The War Powers Act allows the president to unilaterally wage war for sixty days.
9. We have only declared war five times.
10. Alexander Hamilton wanted a king for America.
11. Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.
12. Naturalization depends on your birth.
13. The Obamacare mandate is a tax.

I prove that these statements were false, here: http://patterico.com/2011/06/28/thirteen-clear-factual-errors-in-richard-stengel%e2%80%99s-essay-on-the-constitution-and-i-am-looking-for-your-help/
I consider it to be nothing less than scandalous to see so many egregious errors in the piece.  Ideally heads should roll over this error.  At the very least a significant correction should be issued.  Time should rightfully be embarrassed that this was published, as a cover story no less.
I thank you for your time and consideration,
Aaron Worthing

[Posted and authored by Aaron Worthing.]