Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: Ken H
[ . . . ]

That sounds very much like what Hamilton wrote. I've seen posters use that quote as evidence that Marshall was in favor of an expansive view of the Comerce Clause. However, look at what Marshall went on to write:

[ . . . ]

Looking at the last two paragraphs, Gibbons placed clear and specific limits on the power of Congress to regulate commerce among the several States.

Marshall outlined further limits to this power in 1829 in The Blackbird Creek Marsh Company decision

Thanks for the extra example.  It helps. A lot.  I know what got me into trouble.  I will get into trouble with it again.  But, next time I'll hopefully do a better job of letting you know why I'm doing it.

As part of that trouble, I need to correct myself concerning what Hamilton might whisper into the ear of someone wishing to make a constitutional claim for Social Security..  It would not be "Article I, Section 8, Clause 1."  He would add one other clause.  He would whisper:  "Article 1, Section 8, Clause 1 . . . Article 1, Section 8, Clause  18."  Why that didn't occur to me earlier, I can't say.  I was in too much of a hurry, I suppose.  I'm rather surprised someone did not jump on what I consider to be a rather serious mistake on my part.  Perhaps they thought my whispering Hamilton was outrageous enough all by itself.  :-)

I agree with part of your objection in #104:  If you use your expansive view of the gW Clause, then Congress can deem just about anything a matter of national concern.

That was precisely the objection Madison and Jefferson made when they opposed Hamilton.

Though true, except for a brief comment, this I want to put into brackets for awhile:  "You agreed that Hamilton was naming restrictions, yet you interpret his words to mean that he would accept a universal federal pension plan as within the limitations of the Constitution. . . . That is not what Hamilton was saying."

This may be a distinction without a difference, but what I'll probably repeat again, hopefully better expressed and within a common frame of reference, is had Hamilton served as Secretary of Labor instead of Francis Perkins, and had Roosevelt sought his advice about the constitutionality of the Social Security Act, I believe he would have provided the justification.  It is always dangerous (foolish?) to put words in the mouth of a long dead historical figure, but if I can come even close to pulling it off, I think the exercise will provide a better basis upon which to say Social Security is Constitutional or not, because it does not rely on subsequent Supreme Court decisions.  I have not read more than a tiny portion of the FreeRepublic threads on the issue, but I tend to think this approach has not been tried.

The perfect vehicle, in my opinion, is the First National Bank of the United States.  George Washington sought the advice of Thomas Jefferson (Secretary of State), Edmund Randolph (Attorney General), and Alexander Hamilton.  On precisely the grounds we're discussing, Jefferson and Randolph, as did Madison, opposed the bill.  Hamilton supported it.  Washington agreed with Hamilton.

This was after the 10th Amendment was passed and before the Supreme Court, packed with Federalist judges appointed by Washington, did much more than meet for lunch.  All the major players were prominent founding fathers.  They were therefore all intimately familiar with the Constitution. My first readings of Jefferson, Madison and Hamilton seem to indicate all the constitutional issues (not meaning pensions or unemployment insurance, or anything of the sort.) concerning Social Security were present in their opposition to or advocacy for the creation of the bank.

The role of the Supreme Court comes later . . . I think.

Best of all, thanks to the Constitutional Society and to the Yale Law School's Avalon Project, we can read Hamilton's, Madison's and Jefferson's unedited views on the subject via their websites.  I have thus far been unable to find anything online written by Edmund Randolph.  Here are the links, if you are interested in the discussion and you wish to take a look.

Madison's Speech in Congress Opposing the National Bank

Jefferson's Opinion on the Constitutionality of a National Bank

Hamilton's Opinion on the Constitutionality of a National Bank

Not putting words into Hamilton's mouth this time, I thought I might confirm and acknowledge your objections above by posting a fuller but not complete comment from Hamilton.  More from him and the other founding pops tomorrow . . . I hope.

It is conceded that implied powers are to be considered as delegated equally with express ones. Then it follows, that as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers, as any other instrument or mean whatever. The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to the trade with foreign countries, or to the trade between the States, or with the Indian tribes; because it is the province of the federal government to regulate those objects, and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage.

[ . . . ]

But the doctrine which is contended for is not chargeable with the consequences imputed to it. It does not affirm that the national government is sovereign in all respects, but that it is sovereign to a certain extent; that is, to the extent of the objects of its specified powers.

It leaves, therefore, a criterion of what is constitutional, and of what is not so. This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.  There is also this further criterion, which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State or of any individual ? If it does not, there is a strong presumption in favor of its constitutionality, and slighter relations to any declared object of the Constitution may be permitted to turn the scale.


153 posted on 01/22/2005 8:10:49 PM PST by Racehorse
[ Post Reply | Private Reply | To 127 | View Replies ]


To: Racehorse
"Article 1, Section 8, Clause 1 . . . Article 1, Section 8, Clause  18."

There is a restriction in that Clause as well that we can't overlook: "To make all Laws which shall be necessary and proper..."

Hamilton said nothing about I.8.18 allowing Congress to act outside its constitutional limitations.

As I understand Hamilton, the Bank was to be used for carrying out powers delegated to Congress by the Constitution. Hamilton did not say that an implied power could be used for purposes outside of the enumerated power itself.

Hamilton:

It is conceded that implied powers are to be considered as delegated equally with express ones. Then it follows, that as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers, as any other instrument or mean whatever. The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to the trade with foreign countries, or to the trade between the States, or with the Indian tribes; because it is the province of the federal government to regulate those objects, and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage.

Would you agree that Hamilton intended for an implied power to be used only as a means to carry out a power enumerated in Article I?

The Clause says "general Welfare of the United States". Do you know of any source which interprets the "United States" as meaning "the people of the United States"?

If not, then I see no basis for saying Hamilton or any of the other Founders would support a universal federal retirement plan paid for by working citizens.

154 posted on 01/22/2005 9:50:12 PM PST by Ken H
[ Post Reply | Private Reply | To 153 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson