Posted on 08/26/2010 7:48:37 AM PDT by Publius
Madison takes on some more miscellaneous powers to be granted the federal authority to include one, involving the money supply, that would create problems later on.
1 To the People of the State of New York:
2 A fifth class of provisions in favor of the federal authority consists of the following restrictions on the authority of the several States:
4 The prohibition against treaties, alliances and confederations makes a part of the existing articles of Union, and for reasons which need no explanation, is copied into the new Constitution.
5 The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new.
6 According to the former, letters of marque could be granted by the states after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States.
7 This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible.
8 The right of coining money, which is here taken from the states, was left in their hands by the Confederation as a concurrent right with that of Congress under an exception in favor of the exclusive right of Congress to regulate the alloy and value.
9 In this instance also, the new provision is an improvement on the old.
10 [While] the alloy and value depended on the general authority, a right of coinage in the particular states could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces.
11 The latter inconvenience defeats one purpose for which the power was originally submitted to the federal head, and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for re-coinage, the end can be as well attained by local mints established under the general authority.
12 The extension of the prohibition to bills of credit must give pleasure to every citizen in proportion to his love of justice and his knowledge of the true springs of public prosperity.
13 The loss which America has sustained since the peace from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in the public councils, on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the states chargeable with this unadvised measure, which must long remain unsatisfied, or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice of the power which has been the instrument of it.
14 In addition to these persuasive considerations, it may be observed that the same reasons which show the necessity of denying to the states the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin.
15 Had every state a right to regulate the value of its coin, there might be as many different currencies as states, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other states be injured, and animosities be kindled among the states themselves.
16 The subjects of foreign powers might suffer from the same cause, and hence the Union be discredited and embroiled by the indiscretion of a single member.
17 No one of these mischiefs is less incident to a power in the states to emit paper money, than to coin gold or silver.
18 The power to make any thing but gold and silver a tender in payment of debts is withdrawn from the states on the same principle with that of issuing a paper currency.
19 Bills of attainder, ex-post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social compact and to every principle of sound legislation.
20 The two former are expressly prohibited by the declarations prefixed to some of the state constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters.
21 Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted.
22 Very properly, therefore, have the Convention added this constitutional bulwark in favor of personal security and private rights, and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents.
23 The sober people of America are weary of the fluctuating policy which has directed the public councils.
24 They have seen with regret and indignation that sudden changes and legislative interferences in cases affecting personal rights become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community.
25 They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding.
26 They very rightly infer, therefore, that some thorough reform is wanting which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.
27 The prohibition with respect to titles of nobility is copied from the Articles of Confederation and needs no comment.
29 The restraint on the power of the states over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils.
30 It is needless, therefore, to remark further on this head than that the manner in which the restraint is qualified seems well calculated at once to secure to the states a reasonable discretion in providing for the convenience of their imports and exports, and to the United States a reasonable check against the abuse of this discretion.
31 The remaining particulars of this clause fall within reasoning which are either so obvious or have been so fully developed that they may be passed over without remark.
32 The sixth and last class consists of the several powers and provisions by which efficacy is given to all the rest.
34 Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable.
35 Without the substance of this power, the whole Constitution would be a dead letter.
36 Those who object to the article, therefore, as a part of the Constitution can only mean that the form of the provision is improper.
37 But have they considered whether a better form could have been substituted?
38 There are four other possible methods which the Constitution might have taken on this subject.
39 They might have copied the Second Article of the existing Confederation which would have prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper”; they might have attempted a negative enumeration of them by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.
40 Had the Convention taken the first method of adopting the Second Article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term “expressly” with so much rigor as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction.
41 It would be easy to show, if it were necessary, that no important power delegated by the Articles of Confederation has been, or can be, executed by Congress without recurring more or less to the doctrine of construction or implication.
42 As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but at the same time not expressly granted.
43 Had the Convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object and be often properly varied [while] the object remains the same.
44 Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical, and would have been liable to this further objection that every defect in the enumeration would have been equivalent to a positive grant of authority.
45 If, to avoid this consequence, they had attempted a partial enumeration of the exceptions and described the residue by the general terms, not necessary or proper, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum would be less forcibly excepted than if no partial enumeration had been made.
46 Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government by unavoidable implication.
47 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.
48 Had this last method, therefore, been pursued by the Convention, every objection now urged against their plan would remain in all its plausibility, and the real inconvenience would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union.
49 If it be asked what is to be the consequence in case the Congress shall misconstrue this part of the Constitution and exercise powers not warranted by its true meaning, I answer: the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars and any one of these were to be violated; the same, in short, as if the state legislatures should violate the irrespective constitutional authorities.
50 In the first instance, the success of the usurpation will depend on the Executive and Judiciary departments which are to expound and give effect to the legislative acts, and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.
51 The truth is that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the state legislatures for this plain reason: that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives.
52 There being no such intermediate body between the state legislatures and the people interested in watching the conduct of the former, violations of the state constitutions are more likely to remain unnoticed and unredressed.
54 The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective.
55 To be fully sensible of this, we need only suppose for a moment that the supremacy of the state constitutions had been left complete by a saving clause in their favor.
56 In the first place, as these constitutions invest the state legislatures with absolute sovereignty in all cases not excepted by the existing Articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors.
57 In the next place, as the constitutions of some of the states do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such states, have brought into question every power contained in the proposed Constitution.
58 In the third place, as the constitutions of the states differ much from each other, it might happen that a treaty or national law of great and equal importance to the states would interfere with some and not with other constitutions, and would consequently be valid in some of the states at the same time that it would have no effect in others.
59 In fine, the world would have seen for the first time a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster in which the head was under the direction of the members.
61 It has been asked why it was thought necessary that the state magistracy should be bound to support the federal Constitution and unnecessary that a like oath should be imposed on the officers of the United States in favor of the state constitutions.
62 Several reasons might be assigned for the distinction.
63 I content myself with one which is obvious and conclusive.
64 The members of the federal government will have no agency in carrying the state constitutions into effect.
65 The members and officers of the state governments, on the contrary, will have an essential agency in giving effect to the federal Constitution.
66 The election of the President and Senate will depend in all cases on the legislatures of the several states.
67 And the election of the House of Representatives will equally depend on the same authority in the first instance, and will probably forever be conducted by the officers, and according to the laws, of the states.
68 Among the provisions for giving efficacy to the federal powers might be added those which belong to the Executive and Judiciary departments, but as these are reserved for particular examination in another place, I pass them over in this.
69 We have now reviewed in detail all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government and are brought to this undeniable conclusion: that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union.
70 The question, therefore, whether this amount of power shall be granted or not resolves itself into another question: whether or not a government commensurate to the exigencies of the Union shall be established, or in other words whether the Union itself shall be preserved.
Madison’s Critique
Madison brings to a close his consideration of the proposed Constitution under the first part of the analytical plan set down in Federalist #41. These are, for the most part, uncontroversial points, several simply copied over from the Articles of Confederation. Within these calm shorelines, however, are bounded some very deep waters indeed.
Madison's fifth category under consideration concerns the restrictions on the authority of the states, and were this to break any significant new ground, one might expect the topic to be the bone of furious contention. In fact, it does not in two respects: the centralization of the matter of treaties and alliances is “copied” into the Constitution from the Articles (4), as is the prohibition of separate letters of marque (5). The right of coining money, however, has been relegated to the federal government largely to avoid the sort of confusion that even the defenders of states’ rights had ceased to pretend were manageable at the state level (10, 11). The wholesale printing of paper money, for example (13), and the multiplicity even of properly founded currencies must serve to hinder interstate trade (15).
It is an issue that the inception of the euro was intended to address in the late 20th Century, for the most part successfully. Less successful in the case of the euro was a single monetary policy, covering all the different states employing that currency, that did not account for differences in culture and fiduciary practice that were much greater than those about to be faced by the young United States. But those same issues were present and identifiable even in 1787 regardless of whether the currency involved were paper or gold (17).
19 Bills of attainder, ex-post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social compact and to every principle of sound legislation.
The prohibition of these had also been brought over from the Articles and from the state constitutions as well (20), for they had been abused for the profit of political insiders in terms which the modern reader may find bitterly familiar.
24 They have seen with regret and indignation that sudden changes and legislative interferences in cases affecting personal rights become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community.
Madison touches briefly on titles of nobility, the prohibition thereof also being brought over from the Articles (27) and in need of no further comment in an American political environment in which such honors were anathema, and a European political environment in which they were soon to prove fatal.
Restraint of the states with respect to the imposition of import and export taxes is the last of the topics under the fifth category of analysis, and it too is a reflection of economies of scale: that is, the temporary advantage a single state might enjoy from their employment is likely to be more than offset by the expense of administration and the overall hindrance to trade, topics that Madison considers have been dealt with at length elsewhere (30).
Within the final category of analysis are “the several powers and provisions by which efficacy is given to all the rest” (32). It is a description that must await example to take form from ambiguity, and Madison supplies that example here. It turns out to be a discussion of the fundamental structure of the Constitution regarding enumerated powers and why they were expressed in the fashion they were. Madison felt that there were four options in the matter, and his “they” in this context might as well have been “I”.
39 They might have copied the Second Article of the existing Confederation which would have prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper”; they might have attempted a negative enumeration of them by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.
Each of these has its difficulties. The first alternative most resembles the existing Articles as they had come to be understood, and Madison points out that the term “expressly” must lead the debate into two extreme positions: “so much rigor as must disarm the government of all real authority” or “so much latitude as to destroy altogether the force of the restriction” (41). It is an admission that even a word so nominally specific as “expressly” must exhibit shades of meaning in application in the real world.
Or the Convention might have attempted a positive enumeration of powers “necessary and proper,” but only if it intended to anticipate a “complete digest of laws” to which the Constitution relates, clearly a task beyond its mandate and probably beyond the capacity of any sitting committee. It is a matter of means and objective.
43 ...the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object and be often properly varied [while] the object remains the same.
In short, it was a task on the order of the Hercules’ mucking of the Augean stables. Enumerating those powers not necessary and proper would have faced a similar impossibility (44), both because that list must necessarily be incomplete, and that its very incompleteness would imply powers that were never intended to be granted (45).
Finally, should the Constitution be silent altogether regarding the enumeration of powers, trusting in circumstance to evolve the necessary powers and restrictions, all of the objections of the opponents regarding an uncontrolled federal government would be valid (48).
It is a piece of analysis refreshing in its frankness if alarming in its implications. None of these alternatives, says Madison, will do by itself; the upshot is a rough and ready solution that relies on the balance of power within the federal government to guard against usurpation, and, as well, the ability of the people to replace a government gone out of control (50), relying on the state governments to protect their own interests in alerting the people to the danger (51). On the latter point Madison reminds the reader that there are no intermediary bodies between voter and state government, but there are between voter and federal government (52).
That the Constitution is to be the “supreme law of the land”, and each judge under the state governments bound by it, appears to Madison proven by negation. Were it not so, Confederation rules would force the states to reduce the Constitution to its own level of impotency (56), question or annul every power granted (57), and offer conflicting judgments that would render it valid in some places, invalid elsewhere (58).
Finally, that state government officials, particularly judges, must be bound to support the federal Constitution, appears to Madison to be obvious. The federal government is not charged with effecting the provisions of the state constitutions; the states, by contrast, play an integral role in the formation of the federal government (64 – 67).
Madison acknowledges that he has only reviewed that portion of the relevant text that relates to the Legislative branch and defers the discussion of the rest to another time (68). Finally, Madison closes the analysis he has developed over four crucial papers.
69 We have now reviewed in detail all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government and are brought to this undeniable conclusion: that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union.
70 The question, therefore, whether this amount of power shall be granted or not resolves itself into another question: whether or not a government commensurate to the exigencies of the Union shall be established, or in other words whether the Union itself shall be preserved.
To Madison it is, therefore, a question not of whether the Constitution is perfectly constructed, but of whether it is constructed well enough to keep the country together. The rest must depend on the honor and good intentions of those entrusted with the keeping of the federal government and the watchful eye of the people whose trust may, at any time, be revoked.
The American Experience With Gold
In 1790, Alexander Hamilton, by now Secretary of the Treasury under Washington, pushed for assumption, the act of taking the debts of the states and nationalizing them. What Hamilton wanted was financial ballast. A ship without ballast is unstable and tends to capsize in rough waters. Hamilton believed that a properly managed national debt would act as ballast and be a blessing. In this, Hamilton copied Sir Robert Walpole who established the Bank of England in 1694. The key was “properly managed”. Hamilton saw a national debt as a way of encouraging a basic conservatism in American finance. By rolling the state debts into a national debt, Hamilton effectively monetized all that worthless Continental paper. On a weekly basis, Hamilton’s clerk at Treasury went down to the New York Stock Exchange and either bought or sold Treasury bills, thus managing the money supply in a manner similar to the Federal Reserve today. Was the new American financial paper backed by the proper amount of gold or silver as mandated by the Constitution? Not at first: America’s initial bonds and banknotes started out as a fiat currency in violation of the Constitution’s Gold and Silver Clause, which for the entirety of US history has been honored more in the breach than in the observance.
It was Hamilton’s intent for the US Mint in Philadelphia to fix the gold and silver problem. Congress established gold and silver coins of different denominations, and people who owned foreign coins or bars of gold and silver could take them to the Mint, which would smelt them to the correct purity and mint coins of the realm, which would in turn be handed back to the owner to be placed in circulation.
Hamilton’s consolidated war debt was paid off by James Monroe’s first term, and the new debt accrued during the War of 1812 came close to being paid off by the end of Andrew Jackson’s first term. That led to a problem. Under Nicholas Biddle, the Bank of the United States had put aside its function of neutral arbiter of capital allocation and had played favorites. Biddle saw this as a prudent form of industrial planning, making him an early version of Japan’s Ministry of International Trade and Industry, and Americans such as Max Palevsky, Felix Rohatyn and Jimmy Carter.
When Jackson ran for re-election in 1832, his campaign slogan was “Jackson and No Bank”. Jackson referred to the Bank as “The Monster” and made its abolition the cornerstone of his second term. Biddle inadvertently helped Jackson when he fought the president in Congress by allocating capital to congressmen who were the Bank’s friends and punishing its enemies via foreclosure. It was a fatal mistake. With the end of the Bank, the national debt was gone – and so was the financial ballast. And the sharp practitioners of Wall Street were ready for a world under a gold exchange standard.
In the world of finance, there is Smart Money, Stupid Money, and Widows’ and Orphans’ Money.
With the end of good, safe government bonds, an asset bubble formed on Wall Street in stocks. The Smart Money had already staked a claim, and the Stupid Money followed; next came the Widows and Orphans. It should be noted that the primary business of Wall Street is to fleece investors by inflating and bursting bubbles, known as “pump and dump” in the trade.
The bubble in stocks created the illusion of prosperity, and Jackson never understood what he had wrought. With the luck of the Scots-Irish, Jackson left the presidency to Martin van Buren before the Panic of 1837 erupted. People lost their savings, their homes, their farms, and froze to death in the cities. The road back was slow, arduous, and interrupted by other financial calamities, such as the Panic of 1857, when a ship full of gold coins minted in San Francisco was lost at sea in a hurricane off the coast of South Carolina. That hole in the money supply launched a panic from which the Cotton South recovered more rapidly than the industrialized North. In 1860, that led to a fatal miscalculation by the southern states.
To avoid usurious interest rates from the House of Morgan, Abraham Lincoln issued a paper fiat currency known as the greenback, which was to finance the War Between the States and then get mopped up via federal tax collections afterward. Upon being withdrawn from circulation, the disappearing fiat money triggered deflation and the Panic of 1873, which set off a long depression.
In 1913, America established the Federal Reserve, which was not exactly a national bank because it was owned by a cartel of private banks. But the country was still on the gold standard. The calamity of October 1929 and the events that followed inadvertently made the dollar stronger with respect to European currencies. To permit expansion of the money supply via inflation, Franklin Roosevelt closed the gold window for domestic payments and made the possession of gold by Americans illegal, using the Trading with the Enemy Act of 1917, in effect classifying American citizens as enemy combatants. This permitted America to fight a deflationary depression and a world war by printing massive amounts of money.
The Bretton Woods Agreement of 1944 made the US Dollar the world’s reserve currency linked to gold at the 1934 price. This functioned well until Lyndon Johnson’s disastrous “guns and butter” decision of 1965, which led to the London Gold Pool as an attempt to support the dollar by suppressing the gold price. Charles de Gaulle put an end to that by demanding payment in gold for France, which prompted Richard Nixon to close the gold window to foreign payments, which in turn set off the double-digit inflation of the Seventies. In 1975 Americans again were permitted to possess gold as a result. Fed Chairman Paul Volcker pushed interest rates above 20%, thus ending the inflation of consumer prices, but the liquidity spigot was never turned off, which led to the inflation of asset prices in the 1982-2007 bull market in stocks and real estate.
Fiat currencies can be very messy and full of unintended consequences. But so can gold.
Discussion Topics
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
The Constitution of 1787 and Bill of Rights had a good run. They held up well for 140 years. It wasn't until the FDR Congresses that our downhill slide began. Today's problems are not due to a faulty Constitution, but rather to a people who send progressives/Leftists/statists to Congress and the Presidency.
So in other words, Jacquerie, the problem is us. I think we need to take responsibility for our congress. Even our Democratic congress. I think what passes for news these says has failed to highlight what is going on when both Democrats and Republicans generally agree. If they both want the judiciary to work a certain way, over time, it ends up working that way.
The reason I bring this up Publius, in this context, is I have some ideas on checks and balances and how a system that was meant to be adversarial has turned cooperative. When does checks and balances come up?
It comes up in descriptions of the three branches. The challenges come from Brutus, and in #11 he takes on the Judiciary, pointing out there are no safeguards against the courts. That comes up in a few weeks.
Discussion Topics
* Throughout, Madison speaks against paper money, preferring gold and silver. Would a return to a gold standard be a desirable development? Why, or why not? How could it be done?
* At 25, Madison points out the Law of Unintended Consequences and how one mistake can lead to a structure of mistakes. Find some examples in current events.
* Madison lays the case for implied powers, in addition to enumerated powers, as a legitimate part of the government’s tool kit, thus laying groundwork for the concept of loose construction. Was he right, and why or why not?
*17 No one of these mischiefs is less incident to a power in the states to emit paper money, than to coin gold or silver.
*18 The power to make any thing but gold and silver a tender in payment of debts is withdrawn from the states on the same principle with that of issuing a paper currency.
+ Holy cow! The states can coin money! I never realized that. What would it be like if we (you could get it too) were paid in South Carolina coin? Hmmm.
*24 They have seen with regret and indignation that sudden changes and legislative interferences in cases affecting personal rights become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community.
*25 They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding.
+ Well the founder’s remedy to “every subsequent interference” seems not to have worked, huh? One interfering law leads to another. Congress is always running to “stop the president” and the president is always running to fix the mistakes of the last president. Nothing is considered natural anymore. Nothing “simply happened” or is the result of bad luck. Each congress is able to blame the last president and vice versa. Checks and balances has led to a lack of culpability.
*33 Of these the first is, the “power 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 officer thereof.”
+ Aaah the elastic clause. The bane of all Originalists and Strict Constructionists.
*35 Without the substance of this power, the whole Constitution would be a dead letter.
+ Well if the constitution is a dead letter without it, it can simply be assumed. The fact that it was written into the constitution has allowed the “living constitution” crowd to take it one step further. See McCulloch v. Maryland, http://en.wikipedia.org/wiki/Necessary_and_Proper_Clause#National_bank
*43 Had the Convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates;
+ Okay so it was intentional. The writers DID intend the Elastic Clause to give the congress leeway to do almost as it pleased. I kind of knew that already but it’s good to see it in print. The Federal Government is superior to the individuals and the states and unless the constitution enumerates an individual right, it is almost impossible for the ninth amendment to protect it.
+ It is up to us to elect a congress that protects our rights.
*46 Had the Constitution been silent on this head . . .
*48 Had this last method, therefore, been pursued by the Convention, every objection now urged against their plan would remain in all its plausibility
Gasp! Then we would have had debate.... Well the necessary debate has been short circuited by the Elastic Clause. Instead, our congress is overly free to do what it wants.
When most pubbies take the oath to “support and defend,” they don't mean it.
I sure hope this Tea Party movement marks a turning point in our history, a return to Constitutional values in our Congress.
Our Framers intended impeachment and the “Exceptions and under such Regulations” clauses to provide ample checks.
Fault does not rest with the Constitution when, for instance, the anti-constitutionalists Kagan and Sotomayor were permitted to turn their Senate hearings into farcical embarrassments.
“That Congress does not defend their just powers against an encroaching court is not the fault of the Constitution.”
Amen. And I think you got the culpability of congress and the President correct.
The states may not make anything but gold and silver a payment for debt. That is a little different. The Georgia Legislature is considering a bill that would make gold and silver preferred means of payment of state taxes. I don't know how that bill will fare until we have the final collapse of the dollar.
Nothing is considered natural anymore.
Sometimes "doo-doo" just happens. But there is a tendency for the poliical class to try to do anything, just to be seen as doing something. I remember people sending alarming letters to state legislators about the dangerous substance "dihydrogen monoxide", just to see legislators jump like a horse at the starting bell in an effort to ban water.
It's encouraging to see that issues thought settled at Appamattox in 1865 have been revived for debate.
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