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To: Amendment10
Well, it's easy for us to assume that most people disagree with us because they are ignorant and just don't understand the boundaries of appropriate federal power under the Constitution. The reality is that they have had access to the same information as you and me, but disagree with us. FDR didn't seek to amend the Constitution because he probably believed that the federal government already had the power to do what he wanted to do.

You quote Justice Marshall in Gibbons:

“Congress is not empowered to tax for those purposes which are within the exclusive province of the States.”

Who can disagree with that?

In Mcculloch v. Maryland, Chief Justice Marshall held that the federal government had the power to create a national bank. Where is that in the constitution?

Marshall agreed that the federal government is "one of enumerated powers." Marshall then acknowledged that "[a]mong the enumerated powers, we do not find that of establishing a bank or creating a corporation." Shouldn't that be the end of the matter? Nope:

"Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described. Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people," thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments. A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding."

I'll let you read the whole opinion for yourself. Marshall is really just regurgitating similar arguments that were made by Secretary of the Treasury Hamilton in opposition to the objections of Secretary of State Jefferson during the Washington administration. (BTW, Washington sided with Hamilton on the U.S. Bank.)

The legitimacy of implied federal powers under our constitution concerns an argument that people began having during the Washington administration in the 1790's. You and I seem to agree with Jefferson that the use of implied powers will mean that there are no real limits on federal power. FDR (and just about everyone else now it seems) tends to agree with Hamilton, Washington and Marshall.

So, you and I are a bit behind in this game. ;-)

78 posted on 07/29/2014 1:34:45 PM PDT by Tau Food (Never give a sword to a man who can't dance.)
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To: Tau Food; All
"Mcculloch v. Maryland, Chief Justice Marshall held that the federal government had the power to create a national bank. Where is that in the constitution? [emphasis added]"

The need was ultimately found in a reasonable interpretation of the Constituiton's Clause 18 of Section 8 of Article I as per the following explanation.

Note that Madison and Jefferson had fought the establishment of traitor Alexander Hamilton's earlier national bank, Hamilton wrongly ignoring that his fellow delegates at the Constitution had considered giving Congress the constitutional authority to establish a bank, but had decided against doing so.

“A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was, that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution [emphasis added].” —Jefferson’s Opinion on the Constitutionality of a National Bank : 1791.

As far as I can tell, President Washington signed the legislation to establish Hamilton's national bank based on his army buddy Hamilton's constitutional Article I, Section 8, Clause 18 “need” to smell money.

And when Madison was president, he had initially vetoed another request by Congress to establish another national bank. But because of Madison's struggle in trying to pay for war with Britain, he later signed another request for a national bank because he had become convinced that it was a need that he could justify under Clause 18 mentioned above. And if paying for a major war doesn't justify a Clause 18 need, then what does?

81 posted on 07/29/2014 2:46:17 PM PDT by Amendment10
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