Posted on 10/15/2009 6:50:40 AM PDT by Huck
Let us look to the first article of the proposed new constitution, which treats of the legislative powers of Congress; and to the eighth section, which pretends to define those powers. We find here that the Congress in its legislative capacity, shall have the power to lay and collect taxes, duties, and excises; to borrow money; to regulate commerce; to fix the rule for naturalization and the laws of bankruptcy; to coin money; to punish counterfeiters; to establish post offices and post roads; to secure copy rights to authors; to constitute tribunals; to define and punish piracies; to declare war; to raise and support armies; to provide and support a navy; to call forth the militia; to organize, arm and discipline the militia; to exercise absolute power over a district ten miles square, independent of all the State legislatures, and to be alike absolute over all forts, magazines, arsenals, dock-yards, and other needful buildings thereunto belonging.
This is a short abstract of the powers given to Congress. These powers are very extensive, but I shall not stay at present to inquire whether these express powers were necessary to be given to Congress? Whether they are too great or too small?
My object is to consider that undefined, unbounded and immense power which is comprised in the following clause - "And 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 offices thereof."
Under such a clause as this, can anything be said to be reserved and kept back from Congress? Can it be said that the Congress have no power but what is expressed? "To make all laws which shall be necessary and proper" - or, in other words, to make all such laws which the Congress shall think necessary and proper - for who shalt judge for the legislature what is necessary and proper? Who shall set themselves above the sovereign? What inferior legislature shall set itself above the supreme legislature? To me it appears that no other power on earth can dictate to them, or control them, unless by force; and force, either internal or external, is one of those calamities which every good man would wish his country at all times to be delivered from. This generation in America have seen enough of war, and its usual concomitants, to prevent all of us from wishing to see any more of it-all except those who make a trade of war.
But to the question - without force what can restrain the Congress from making such laws as they please? What limits are there to their authority? I fear none at all. For surely it cannot be justly said that they have no power but what is expressly given to them, when by the very terms of their creation they are vested with the powers of making laws in all cases -necessary and proper; when from the nature of their power, they must necessarily be the judges what laws are necessary and proper. The British act of Parliament, declaring the power of Parliament to make laws to bind America in all cases whatsoever, was not more extensive. For it is as true as a maxim, that even the British Parliament neither could nor would pass any law in any case in which they did not either deem it necessary and proper to make such a law, or pretend to deem it so.
And in such cases it is not of a farthing consequence whether they really are of opinion that the law is necessary and proper, or only pretend to think so, for who can overrule their pretensions? No one; unless we had a Bill of Rights, to which we might appeal and under which we might contend against any assumption of undue power, and appeal to the judicial branch of the government to protect us by their judgments.
This reasoning, I fear, is but too just. And yet, if any man should doubt the truth of it, let me ask him one other question: What is the meaning of the latter part of the clause which vests the Congress with the authority of making all laws which shall be necessary and proper for carrying into execution all other powers (besides the foregoing powers vested, etc., etc.)? Was it thought that the foregoing powers might perhaps admit of some restraint, in their construction as to what was necessary and proper to carry them into execution? Or was it deemed right to add still further that they should not be restrained to the powers already named?
Besides the powers already mentioned, other powers may be assumed hereafter as contained by implication in this constitution. The Congress shall judge of what is necessary and proper in all these cases, and in all other cases-in short, in all cases whatsoever.
Where then is the restraint? How are Congress bound down to the powers expressly given? What is reserved, or can be reserved? Yet even this is not all. As if it were determined that no doubt should remain, by the sixth article of the Constitution it is declared that "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, shalt be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the Constitutions or laws of any State to the contrary notwithstanding." The Congress are therefore vested with the supreme legislative power, without control. In giving such immense, such unlimited powers, was there no necessity of a Bill of Rights, to secure to the people their liberties?
Is it not evident that we are left wholly dependent on the wisdom and virtue of the men who shall from time to time be the members of Congress? And who shall be able to say seven years hence, the members of Congress will be wise and good men, or of the contrary character?
AN OLD WHIG
The author foresaw correctly that the implied powers of Fedzilla would be virtually without limit. At the very end, he comments on the absurdity of the "if only people would follow it" canard. As if liberty should be put on such shaky ground, and such a bad bet.
As on the money as the antifeds were, they also erred. They believed a bill of rights would provide the necessary safeguard. At least some of them did.
Antifederalist 81 takes the reasoning closer to the truth, where it is correctly predicted that the supreme Judiciary would, as interpreter of the Constitution, expand the power of the national goverment, so that a Bill of Rights, or any of the Constitution, would be toothless against the expansion of power. If the court of the national government decides what is Constitutional, then how do you restrain it? Obviously, you don't. The Constitution was an EPIC FAIL.
I added paragraph breaks for convenience.
"Perhaps the judicial power will not be able, by direct and positive decrees, ever to direct the legislature, because it is not easy to conceive how a question can be brought before them in a course of legal discussion, in which they can give a decision, declaring, that the legislature have certain powers which they have not exercised, and which, in consequence of the determination of the judges, they will be bound to exercise. But it is easy to see, that in their adjudication they may establish certain principles, which being received by the legislature will enlarge the sphere of their power beyond all bounds."
-Brutus
So you see, the tragic, fatal flaws built into our Constitution--the doctrine of implied powers, combined with the supreme power of the judiciary, and voila--unlimited government. It was clear as a bell all the way back in 1788.
I disagree. The Constitution was a success for almost a century and served us well overall for 200 years.
The Founders knew that it would require persons of character to preserve the Republic no matter what document was crafted.. They also knew that persons of low character would pose a constant threat to our Republic.
Sadly, the character of modern politicians is uniformly poor. The Republic has been terminally ill for many years -- the current bunch in Washington DC are intent on killing it completely.
Mornië utúlië.
Mornië alantië.
ping for your consideration.
TRUTH # 4 - Our Constitution was made only for a Moral and Religious People
“We have no government armed with power capable of contending with human passions unbridled by morality and religion.”
With these sober words, President John Adams warned that the U.S. Constitution will not be able to sustain our liberties if the American people abandon virtue and religion. Adams stated:
Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
John Adams was not alone in his opinion. This view was widely held by our Founding Fathers.
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That's a silly argument, and is addressed in the last paragraph:
Is it not evident that we are left wholly dependent on the wisdom and virtue of the men who shall from time to time be the members of Congress? And who shall be able to say seven years hence, the members of Congress will be wise and good men, or of the contrary character?
You think immoral, designing, ambitious politicians are a modern phenomenon? Really? Then why go to the trouble of checks and balances, a bill of rights, etc? If they were laying their bets on the character of man (hard to believe), why not just give them power and be done with it?
As James Madison said (i think in Fed 39):
"In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. "
The question, then, is how well did these "auxiliary precautions" work? The answer-they didn't work at all.
You have to understand that while we needed a collective governing body to operate as a union, we did NOT need what we got. Once you start from that premise, and envision alternatives, you can judge the Constitution for what it is---a failure.
True, even today, life is pretty good. It's not the worst government ever created. It was just a sad missed opportunity. And as time goes on, it gets worse and worse. It's taken a while, but we're getting there.
The “restraint” was in the initial, inherent, and assumed
“enumerated powers act”. Recently, Congress has rejected making this an overt law. Congress was limited in scope to the necessary and proper laws to implement those powers that are enumerated. All other branches were limited in that they could not make any laws (including “regulations”).
When Senators were representing the states instead of the people in those states that would vote for largesse from the treasury, the Senate was a check on power in favor of the states as well.
Ultimately, it was/is up to the people to keep the government in check, but we’ve abdicated that responsibility in favor of bread and circuses.
The breakdown of this country started with the breakdown of the family, and the breakdown of the family was caused by the denigration of the roles of fathers.
Some of us are bucking that trend.
We’re mocked and jeered and called “sexist” and “puritanical” for it.
But I’d rather be right than liked.
See post # 6.
It seems to me that from this it follows that the Constitution is therefore wholly inadequate.
"There is no one who does not sin" 1 Kings 8:46
Who makes a bet that people will be unfailingly virtuous?
See #10.
I appreciate your comments and interest. I’m gonna peel myself away or soon it will be lunchtime and I’ll have gotten nothing done! Hope to return later and read your arguments and comments. Have a great day.
Refer to my excerpt from Antifed 81 regarding supreme judicial intepretation. It obliterates any notion that the power of Congress would be limited. What then? Impeachment? You think the government is going to impeach itself in order to abandon newly granted powers? lol.
Individual freedom requires “a moral and religious people”.
If the assumption is that people cannot be trusted with individual freedom (as the left does),
then there is no way for us to be free.
This is an inherent natural law, dating back to the creation of Adam as a being with free will.
The Founders crafted as ideal a Federation as mankind has ever formed. It was up to us to (as Franklin said) “keep it if you can”.
We failed — not the Constitution.
Impeachment of a justice was tried - once - then abandoned.
Read “Men in Black” by Mark Levin,
and the “Politically Incorrect Guide to the Constitution”.
The assumption is that people can't be trusted with a government of virtually unlimited power and scope. Man is fallen, right? So how can you lay your bets on a "moral and religious" people? It's ludicrous. The best you can hope for is to create a government where people in their natural state can do as little harm as possible while governing. The Constitution granted far too much power to fallen man, as 200+ years have now demonstrated.
They didn’t create a federation. They created a FINO. It was truly a national government of virtually unlimited scope. Like I said, it’s not the worst government ever created. But it’s miles away from what they said or thought they had created, and the antifeds knew it.
I read Men in Black on a plane ride a few years back.
No document can stand up to assault by unethical, immoral, dishonest people and that is what we now have in the highest positions of government.
Think about the legal, written contracts that were arbitrarily abrogated by Obama and his henchmen during the Chrysler/General Motors takeover.
If the executive branch of the government violates written contracts at will, and the judiciary and legislative branches do not take steps to reign in the abuse and enforce the law how can any document guide our nation?
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