What James Madison Might Well Tell Congress Today (bummer for judicial activists)

Federalist Blog ^ | 8/9/06 | P.A Madison

[AZRepublican]

James Madison Jr., House of Representatives, February 1792:

I, sir, have always conceived--I believe those who proposed the Constitution conceived, and it is still more fully known, and more material to observe that those who ratified the Constitution conceived--that this is not an indefinite Government, deriving its power from the general terms prefixed to the specified powers, but a limited Government tied down to the specified powers which explain and define the general terms. The gentlemen who contend for a contrary doctrine are surely not aware of the consequences which flow from it, and which they must either admit or give up their doctrine.

It will follow, in the first place, that if the terms be taken in the broad sense they maintain the particular powers afterwards so carefully and distinctly enumerated would be without any meaning, and must go for nothing. It would be absurd to say, first, that Congress may do what they please, and then that they may do this or that particular thing; after giving Congress power to raise money, and apply it to all purposes which they may pronounce necessary to the general welfare, it would be absurd, to say the least, to super add a power to raise armies, to provide fleets, &c. In fact, the meaning of the general terms in question must either be sought in the subsequent enumeration which limits and details them, or they convert the Government from one limited, as hitherto supposed, to the enumerated powers, into a Government without any limits at all.

I shall be reminded, perhaps, that according to the terms of the Constitution, the Judicial Power is to extend to certain cases only not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen that the specification of certain objects does not limit the import of general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objects of Legislative regulation as well such as fall under the Judiciary article in the Constitution, as these falling immediately under the Legislative article; and if the partial enumeration of objects in the Legislative article does not, as these gentlemen contend limit the general power, neither will it be limited by the partial enumeration of objects in the Judiciary article.

There are consequences, sir, still more extensive, which, as they follow clearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children establishing in like manner schools throughout the Union; they may undertake the regulation of all roads, other than post roads. In short, everything, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called if Congress pleased provisions for the general welfare.

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Sadly prescient words.

[Christian4Bush]

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On any question of federal powers ask yourself this: Would the 13 original soveriegn states have signed on to the Constitution with that understanding?
It usually helps to settle "original intent" for me.

[MuddyWaters2006]

One of first examples of Congress doing what they pleased instead of following the Constitution was passing the law that obligated the nation's taxpayers to contribute to the financial support of two minister's of the gospel as Chaplains to Congress. However, the compensation of the Chaplains was set so low (even less than what clerks were paid) that no great protest was raised.

During the early years of the republic, those who favored mixing religion with politics cited the payment of Chaplains to Congress from the public treasury to support their proposals for laws which mixed religion with government. One example was in 1811 when Federalist Representative Laban Wheaton argued in favor of a law that would have established rules regarding the election and dismissal of the minister of a religious society. Wheaton cited the payment of the two Chaplains to Congress, argued that Congress had already established two religions and therefore had the authority to regulate the funds of a religious society. The House rejected Wheaton's argument and found that the bill in question did violate the Establishment clause.