Constitutional Interpretation, War, and Disagreements-with Jim Valliant
Main Discussion Topics
The Constitution Is Not Optional
James draws a firm line between personal disagreement with a law and the obligation to comply with it under the rule of law:
James stated: "If we have a clear understanding of the Constitution and if that's the way the Constitution is understood, we must obey it whether we like it or not. That's a failure on his part to understand the importance of the Constitution and how the Constitution is the governing document."
Using the Post Office as an example, James acknowledges he dislikes government involvement in mail delivery but concedes it is constitutionally authorized. Prohibition is another example: a bad law, but one that was enacted through the proper amendment process. The point is that the method matters. Whether or not you like the outcome, the Constitution is the governing document, and all officers of government take an oath to it.
Michael adds the broader stakes: "The rule of law is vital to avoid arbitrary power on the one hand and anarchy on the other."
Three Methods of Constitutional Interpretation
Michael lays out the three main approaches to reading the Constitution:
Original Public Meaning Originalism: The text should be interpreted according to what the words meant to the generation that ratified each provision. Michael explicitly rejects original intent originalism, since reconstructing the subjective views of dozens of framers who compromised extensively is not possible.
Living Constitution: Judges interpret the document according to evolving modern standards, not bound by original text or meaning. Michael and James reject this outright.
The Prescriptive Constitution (Richard Epstein): Long-standing precedent should be obeyed as such, even if the original ruling was unconstitutional. James partially overlaps with this in one narrow sense: as a citizen and former deputy DA operating within the system, he submits to Supreme Court rulings. But as an interpreter of the Constitution, he would not defer to bad precedent simply because it is old.
James clarifies his own position: he applies the Objectivist theory of concepts to constitutional interpretation, reading powers granted to the federal government strictly and narrowly while reading individual liberties expansively. He points to the Ninth and Tenth Amendments as the decoder ring for the entire document.
James explained: "When it comes to the powers and the procedures that are specified in the Constitution, I read the Constitution very, very strictly and narrowly. When it comes to the rights granted to the people, we have been invited by the framers to read the liberties of the people in a broad way. If we do not have an expansive view of liberty, we are violating the Bill of Rights."
War Powers and the Iran Conflict
The core constitutional question: does the president have the authority to initiate military conflict with a foreign nation without a congressional declaration of war?
Michael traces the text carefully. Article I, Section 8 gives Congress the power to declare war. The Constitutional Convention originally used the phrase "make war" and changed it to "declare war" specifically to allow presidents to repel sudden attacks without waiting for Congress to convene. That change implies a clear limitation: if there is no attack or invasion, the president does not have unilateral authority to initiate conflict.
James agrees on the emergency framing. Presidents can act when Americans are under attack or in imminent danger abroad, when Congress cannot be summoned in time. But this must be a genuine emergency, not a policy preference dressed up as one.
James noted the historical pattern: "Before the Civil War, presidents would often initiate the conflict but then get congressional approval afterwards. And the further back in time you go, the better our politicians were at interpreting the document and sticking to the true constitutional order."
Michael observes a striking irony: in the era when it was genuinely difficult to summon Congress, presidents went to them more often. In the modern era, when convening Congress is easy, they do not bother.
Both agree the current Iran conflict meets any reasonable definition of war: two sovereigns in a state of armed violence. Playing semantic games with the word "war" to avoid the declaration requirement is precisely the kind of constitutional evasion the framers anticipated.
The War Powers Act
The War Powers Act requires the president to consult Congress before acting and notify them within 48 hours of committing forces. James believes the current administration has technically complied with the notification requirements. However, he raises a more fundamental structural question: can Congress even delegate that level of authority to the president without violating the separation of powers?
The War Powers Act was designed in the wake of Vietnam to rein in presidential war-making. But James argues that it may in practice have done the opposite, giving presidents a 60-day window that functions as de facto authorization and allowing Congress to avoid taking responsibility for military action.
James explained: "There's a separation of powers issue. Is the War Powers Act designed, in the minds of those who passed it to limit a president's power? Does it in fact violate the separation of powers in the sense that Congress cannot even give that much power to the president of the United States?"
The Standing Problem
One reason constitutional war powers questions are never resolved by the Supreme Court is the standing doctrine. To bring a case, a party must demonstrate a direct personal stake in the outcome. As citizens and taxpayers, Americans generally do not have standing to challenge war-making on constitutional grounds. Soldiers arguably do, but the Supreme Court has consistently declined to define what qualifies.
James points out that presidents have also actively avoided having their war powers adjudicated by the Supreme Court. Every modern president has claimed broad commander-in-chief authority and used the Solicitor General's office to keep the question away from the Court. The result is a constitutional vacuum that has expanded executive power by default.
The Commerce Clause and General Welfare Clause
James identifies the two most consequential distortions in American constitutional history: the misreading of the General Welfare Clause and the Commerce Clause, both of which were radically reinterpreted in the 1930s.
On the General Welfare Clause, James explains that Madison was explicit: the clause is a limitation on the power to raise tariffs and taxes, not an independent grant of power. The specific enumerated powers in Article I, Section 8 are the concrete definition of what "general welfare" authorizes Congress to do. Reading it as a freestanding grant of authority makes the entire list of enumerated powers redundant. In the 1936 Butler case, the Supreme Court ignored this entirely and declared the General Welfare Clause an affirmative grant of power.
Michael reads Madison directly from the Federalist Papers: "Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it... but what color can the objection have when a specification of the objects alluded to by these general terms immediately follows and is not even separated by a longer pause than a semicolon?"
On the Commerce Clause, James notes that if it were broad enough to justify the FCC, it would have been broad enough to justify a post office without a separate post office clause. The framers included a specific post office clause precisely because the Commerce Clause did not cover it. The FCC, the DEA, RICO statutes, the Department of Education, and the vast majority of the modern federal administrative state have no legitimate constitutional foundation.
James put it plainly: "Over 90% of what our government does today is flatly unconstitutional by any legitimate reading of the Constitution."
Restoring Constitutional Government
Michael poses the central challenge: when politicians on every side invoke the Constitution only when it supports what they already want to do, and the American public follows suit, how does constitutional government ever get restored?
James acknowledges this is the hardest question. The Supreme Court has compounded the problem at every level: inventing standing doctrines that insulate executive overreach from judicial review, making up interpretive regimes for rights that have no basis in the text, and rewarding Congress's dereliction by never forcing accountability. Congress has been happy to cede power to the executive because it lets them praise or criticize wars without being responsible for them.
Michael identifies the root of the problem: "Everybody loves the Constitution until they want to do something that it does not allow. If you read the Constitution and think it never disagrees with you, you are probably reading it wrong."
Objectivism and the Scope of Legitimate Disagreement
James and Michael address the Razzie dispute in a broader philosophical context. Within a shared set of principles, honest people applying those principles to complex empirical and legal questions will reach different conclusions. That disagreement is not a moral failing. Objectivism teaches that thinking is the source of all virtue and evasion is the primary vice, but it also teaches that there is only one correct answer to any question.
The task is to pursue that answer rigorously, not to treat one's own application of Objectivist principles as identical to Objectivism itself.
James argued: "If we are both in good faith trying to apply those principles, I do not see any reason for saying you have crossed the line of objectivism and you are out. I think it is healthy for any movement for ideas if we can accept those kinds of disagreements when it comes to issues of application."
Notable Quotes
James on Constitutional Compliance: "All officers of the United States take an oath to the Constitution. It is the governing law, and whether anyone likes it or not, compliance with that is not an option for an American policymaker."
Michael on the Constitution's Purpose: "The separation of powers and checks and balances are vital so that we do not end up in a dictatorship. The rule of law is vital to avoid arbitrary power on the one hand and anarchy on the other."
James on Reading Government Power: "The government is the laboring oar, and they better the hell convince me that they have that power. I read liberty expansively. I am following my instructions from the Constitution itself."
Michael on Constitutional Hypocrisy: "Everybody loves the Constitution until they want to do something that it does not allow. If you read the Constitution and like everything in there and think that it never disagrees with you, you are probably reading it wrong."
James on the General Welfare Clause: "The general welfare clause is meant to be a limitation on the power to raise tariffs and excises, not an affirmative grant of power. The Supreme Court in 1936 chucked out Madison, all principles of proper legal interpretation and construction, and said that the general welfare clause was an affirmative grant of power."
James on the Size of Unconstitutional Government: "Over 90% of what our government does today is flatly unconstitutional by any legitimate reading of the Constitution."
Referenced Works and Resources
The Federalist Papers (Hamilton and Madison), particularly on war powers and the general welfare clause
Madison's Report of 1800 and the Virginia and Kentucky Resolutions
The Pacificus-Helvidius Debates (Hamilton and Madison on executive foreign policy power)
Marbury v. Madison on the Supreme Court's interpretive role
The Slaughterhouse Cases and Plessy v. Ferguson on the gutting of the 14th Amendment
United States v. Butler (1936) on the general welfare clause
Randy Barnett, "Restoring the Lost Constitution" on the presumption of liberty
Richard Epstein's prescriptive constitution theory
The Rational Egoist episode featuring James Valliant on constitutional interpretation
The Ayn Rand Centre UK, where James contributes regular content
Key Themes
Original public meaning as the correct method of constitutional interpretation
Federal government power must be read strictly and narrowly; individual liberty must be read expansively
The war powers clause requires congressional authorization outside of genuine emergency
The Commerce Clause and General Welfare Clause have been catastrophically distorted since the 1930s
Standing doctrine and executive self-interest have allowed constitutional war powers questions to go unresolved
Applying principles honestly to hard questions is not the same as betraying those principles
Constitutional government cannot survive when the document is treated as a tool of convenience
Capitalist Thought of the Day
"Without a limited government, without a constitutional order, we cannot have rule of law. There have to be rules. The history of England is a history of traditions and precedents. It is not a written constitution. We in the United States are blessed with a written constitution, and for that blessing to have its positive impact on individual liberty, we need to respect that constitution and the constitutional order. You may think it needs to be changed, and you may have a great argument for why it needs to be changed, because there are many things in the Constitution I would want to change. But the point is we have to respect the Constitution if we are going to respect the rule of law. It is the bulwark defending individual liberty. And do not forget, ladies and gentlemen, capitalism is the system of individual rights primarily. It is not merely a system of buying and selling. It is a system protecting individual rights, including property rights, which are the way that enables us to exercise all of our other rights." - James Valliant