Posted on 11/12/2009 5:49:13 AM PST by Huck
The doctrine of "implied powers", which was understood at the time the Constitution was debated and eventually ratified, means that the national government's powers are NOT, as Madison assured readers in Federalist 45, “few and defined”. Rather, they are incomprehensibly vast.
As Brutus wondered in Antifederalist 32, “how is it possible to understand the extent of that power which can pass all laws which shall be necessary and proper for carrying it into executions? It is truly incomprehensible. A case cannot be conceived of, which is not included in this power.”
By 1791, the question of implied powers was already at issue in the government, and Madison found himself scurrying around to defend against his old Federalist ally, Alexander Hamilton. Madison and Jefferson were arguing AGAINST implied powers, in this case the incorporation of a national bank, while Hamilton argued in favor of the bank. Eventually, Hamilton convinced President Washington, and the bank was created.
Hamilton argued “That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.
Jefferson’s argument was that “all powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved for the States, or to the people."
“Whence it is meant to be inferred,” Hamilton commented, “that Congress can in no case exercise any power not Included in those not enumerated in the Constitution.”
“It is nothing more than a consequence of this republican maxim,” Hamilton continued, “ that all government is a delegation of power. But how much is delegated in each case, is a question of fact, to be made out by fair reasoning and construction, upon the particular provisions of the Constitution, taking as guides the general principles and general ends of governments.
In other words, the end justifies the means. If the end is deemed constitutional, then all means of arriving at that end are therefore implied powers delegated to the national government.
Even Madison himself, in Federalist 44, had said “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.”
This view was solidified in McCulloch v. Maryland (1819), a case also concerning a national bank. As John Marshall wrote in that case:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
McCulloch v Maryland also served notice that the “necessary and proper” clause, as John Marshall wrote, “"purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.”
Jefferson’s argument, resting on the 10th amendment, seems somewhat ridiculous, then, doesn’t it? In fact, the 10th amendment, once one comprehends the nature of implied powers, seems pretty ridiculous, for what power is not delegated to the national government?
The preamble of the US Constitution includes among the “general principles and ends” of the national government the power “to promote the general welfare.” What laws, then, might Congress consider necessary and proper in achieving that end? This power is reiterated in Art 1 Sec 8-" provide for the common Defence and general Welfare of the United States;"
As Brutus remarked in Antifederalist 33, “The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.”
The existence of antifederalist arguments regarding the "general welfare" clause and the "necessary and proper" clause demonstrate that this is not a modern problem, that saying "if only people had followed the constitution" doesn't cut it.
The broad language of "general welfare", combined with the doctrine of implied powers, leaves us with a national government virtually unrestrained. All this complaining about what is or isn’t constitutional is nonsense. Almost anything is constitutional. That’s the problem.
By contrast, the Articles of Confederation contained no “necessary and proper”clause, nor did they empower Congress to "promote the general welfare." They had an ‘express powers clause’:
Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
The only mention of "general welfare" in the Articles of Confederation comes in Article 3:
The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare
Note the difference. Congress doesn't have a positive power to "promote" the general welfare. It is merely stated that the states entered into a league of friendship for their general welfare.
The Articles may have had flaws, but they were vastly superior to the monstrosity that replaced them.
These are times which try men's souls.
ML/NJ
very very interesting
ping for later
The Constitution very clearly says that the feds may only COIN MONEY. They now print fiat paper currency and the Court let is slide. They broke faith.
Unfortunately this represents a typical misrepresentation of the General Welfare clauses, both in meaning and intent.
The term “general welfare” was about the general welfare of the United States as an entity. The two times it was written it was in a preamble.
The first, in effect, said that “we offer this Constitution to secure the general welfare of the United States.”
The second said that “the following enumerated powers (and only these) allow the Congress to attend to the general welfare of the United States.
Few and delegated is both the original meaning and original intent of The Constitution.
"Coin Money" specifically meant that the government could establish mints where citizens could bring gold or silver bullion and the mint would, in exchange for a fee, stamp it into recognizable disks of known weight and fineness. It did not give the government the power to buy scrap metal and create little disks of it with impressive monetary stampings on them.
ML/NJ
What it represents is an accurate prediction of precisely how the phrases and the Constitution generally would be interpreted. And it's a plain reading of the language.
Few and delegated is both the original meaning and original intent of The Constitution.
Good intentions aren't a sufficient safeguard against designing men with access to unlimited power, as history has demonstrated over the last 200 years of experiment. If their intent was to give the national government few and defined powers, they failed miserably, as was predicted, and as has now been shown in practice.
Article 1, Sec 8 states:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;
Clearly then, Congress is given power to a)law and collect taxes b) in order to provide for the general welfare.
Health care? Why not? Congress has power to lay and collect taxes. For what end? The general welfare--the particular in pursuit of the general. That's not even a misconstruction--it's the plain language.
Never mind actual misconstructions, like the commerce clause. But even that sort of thing was predicted--that the Supreme Court as interpreters of the Constitution would gradually and consistently expand national power--that application of comon law principles---e.g., stare decisis---would enable the high court to mold the powers of government.
You toss necessary and proper (implied powers), general welfare (broad mission/scope), and supremacy (unaccountable)all together and you get the big stinking pile of crap we have today. Sure as your born.
With me?
Now along come some smart people who propose that a)three lions is not sufficient--we need more lions and b) we have a new cage guaranteed to hold the lions within their bounds.
And now let's say, you the observor, note a few lion sized holes in the cage walls. Bigger even then lion-sized--large enough for several lions to jump through and escape.
You think it's sufficient to say that the builders of the cage intended that it keep the lions in? Don't you think it matters, with life and limb on the line, whether or not the cage is properly built to secure lions?
Here's what James Madison said about your logic:
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power ``to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,'' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.Courts are supposed to interpret the law according to the intent of the people who drafted the law, not some possibly valid interpretation of the words but opposite to that intent.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; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ``to raise money for the general welfare. ''
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? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter. [The Federalist No. 41 excerpt]
ML/NJ
And Madison has been proven collossally wrong on the point.
I'm not sure how Madison could be wrong about his intent, which is obvious from what he wrote. As I said in my first reply on this thread, the courts pretty much have done whatever they have wanted to do regardless of the sometimes very specific words in the Constitution.
BTW, it isn't only Madison who was "wrong" in the sense you suggest. Amendments and laws seem to take on a life of their own soon after all the people responsible for their creation have died. This is because such people would be quite vocal in saying, "That's not what we meant," if they were still around. So e.g. the court waited until all the 14th Amendment drafters were dead before they came up with the doctrine of "incorporation." (where all the Bill of Rights amendments, except the second, are thought to apply to the states too)
ML/NJ
He was wrong in arguing that the Constitution would be interpreted the way he supposedly intended. The antifederalist essays correctly predict the way it would in fact be interpreted. Madison may have intended to cage the tiger, but in fact he let it run free. In that respect, he was quite as wrong as one can be. That’s another reason I call the Constitution a gubmint boondoggle—like most gubmint programs, it fails to do what it was intended to, and often ends up doing the opposite.
We don’t know their real intent. Maybe they intended for incorporation to come later.
ML/NJ
ML/NJ
ML/NJ
Not really. Implied powers was aleady working its magic in the first congress, during the Washington administration. Then you had McCulloch v Maryland. What about the nullification crisis of the 1820s? It was a mess all the way up to the Civil War. And since. Mostly gradual, sometimes in spurts, but always in the wrong direction.
Most conservatives have no problem at all with the Controlled Substance act. The point is that the Constitution is full of errors, invitations to expanded power, and it has shown itself to be that way for centuries now. They are unrestrained, except by the whims of the populace. That's not republicanism.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.