Posted on 06/07/2011 6:54:23 PM PDT by neverdem
Suppose you explain to us exactly what Madison (and Jefferson) meant by “implied powers” and how the necessary and proper clause applies to that concept?
Thanks for posting. Great article.
Madison was a quite ineffectual president, and by far the worst American war president. With any other American wartime president in control, we would have conquered Canada.
Whether we would have been able to keep it is another question entirely, of course.
The author’s question of whether a more powerful American navy might have prevented the War of 1812 is unreasonable, IMO. The US of the time was totally unable to field a navy capable of challenging the Royal Navy for command of the seas. And an attempt to do so would in all likelihood have irritated the Brits so much the war would have become more inevitable, not less. As the German attempt to challenge the RN at sea was a major cause of WWI.
A navy that is good, but not large enough to actually win is both expensive and pretty much a waste of time.
Ever see the Michael Mann version of Last of the Mohicans ? I loved it, maudlin as it was. One very striking scene had our gallant band creeping upon the scene of the battle at Fort William Henry. I thought their awe and fascination conveyed very well the novelty and significance of this nexus of European power in the American wilderness, when history still hung in the balance.
Only vicariously, M'Lud! I'll pass on a lot of the gritty realities, such as a death by suppuration after a bayonet thrust or, maybe worse, 18th century dentistry.
Which brings us to Joseph Warren, American patriot and member of the Sons of Liberty. He was named a Major General prior to the battle of Bunker Hill and chose instead to serve as a private soldier. He was killed standing up to the British charge at Breed's Hill and got buried in a common grave, disinterred by relatives somewhat later and identified only by the dental work he'd had done. By a fellow named Paul Revere. Who he had sent out on that ride to Lexington and Concord two months earlier.
Revere made his own dental tools, and used them. Before novocaine was invented. Just shoot me up, Doc. ;-)
To suggest that this is the sum of Henry's concerns is deliberate misdirection by character assassination.
The wording of the treaty power and the manner of treaty adoption was a deliberate Trojan Horse in the Constitution, about which Madison was either complicit or criminally negligent (as was Hamilton). Take your pick.
Further, Madison was also the architect of an Amendment very similar to the 14th, the philosophy of which led to the abomination of selective incorporation and the destruction of Federalism.
You should also read Hamilton's Opinion as to the Constitutionality of the Bank of the United States : 1791 . Hamilton was a principle architect of the Constitution.
Then you could do a little research on the difference between delegated powers and expressly delegated powers. Try McCulloch v. Maryland, written by Constitutional Convention delegate and Federalist, John Marshall. His opinion confirmed what Brutus had argued.
"Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only, that the powers "not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;" thus, leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. "
As for Madison, he clearly understood all of this. He began as Hamilton's ally, then became his adversary. He flipped and flopped time and again. President Washington, meanwhile, sided with Hamilton on implied powers, as did Chief Justice Marshall. Madison, and his buddy Jefferson, lost that argument handily, and the rest is history. Madison's claim of 'few and defined' national powers was a farce from the start.
That's a good point. But the Federalists won, and so they get to wear the white hats. Henry gets to play the villain. It's dishonest and lame, but there you go.
bookmark
Bookmark for later reading. Very interesting, but lengthy.
Madison’s warnings about the Bill of Rights and perpetual debt seem to have been spot-on, though.
Yeah, they carved Lincoln's face in a rock and called it a park. The sad part is, that in "freeing" slaves he created a semi-permanent underclass. In doing so, that underclass became the responsibility of the public at large, the costs of which are so excessive as to be slowly enslaving the public at large.
Ironic, isn't it? We could have learned something from the motivational architecture of the Biblical system, but nobody understood it because the key to its function had been lost for over 3,000 years. The reality is that the indigent will always be somebody's responsibility. To simply collectivize that responsibility becomes a tragedy of the commons that serves no one.
For a while I was studying the Bozeman trail history, focusing on the stories about Fort Phil Kearny and such. What surpised me was finding out that cold and starvation killed more Calvary men than conflicts. They don't show that in the movies.
We live in comfortable times.
I would give the 'distinction' of the worst war president to Lyndon Baines Johnson.
Madison appointed some damn poor military commanders to fight against the toughest army in the world and the results were nearly disastrous.
Johnson had excellent military commanders and the most powerful army in the world, but he refused to listen to those commanders or unleash to full potential of the army and the results were disastrous.
Really?! Then I assume you find Jefferson’s thoughts expressed in his letter to the Danbury Baptist Association to have no constitutional effect, and that both the 1879 Reynolds v. United States Supreme Court decision and the 1947 Everson v. Board of Education Supreme Court decision, as well as any following decisions, to be in error, at least insofar as these decisions hinge on the said Jefferson letter (there being perhaps other reasons why the decisions might be in error).
Jefferson had a great deal to do with “it.” He was in a lifelong pursuit of correspondence and other exchanges with any number of parties interested in issues of constitutionality (Adams, Madison, Washington, Hamilton, Mason, various judges, and just ordinary interested citizens). Throughout his life, Jefferson’s constitutional opinions were solicited and carefully attended to.
”As for implied powers, I suggest you look at Brutus's great essay on the subject:”
I’m familiar with Brutus. Thank you. But, I asked for your understanding and your opinion.
“[Madison] began as Hamilton's ally, then became his adversary.”
In the beginning Hamilton demonstrated an understanding of the enumerated powers of the Constitution in his arguments against the need for a Bill of Rights. But his understanding seems to have been a mere rhetorical device which Hamilton sought to use in an effort to discourage the adoption of the first ten amendments to the Constitution. When his effort failed, Hamilton then sought instead to render the Constitution “a blank page through construction” (to borrow Jefferson’s words).
Meanwhile in but a few paragraphs Madison explains both the meaning of construction, or implication, and of necessary and proper in Federalist 44.
“Madison's claim of 'few and defined' national powers was a farce from the start.
What’s farcical is the peculiar notion that a document of republican fundamental law can be laid open to whimsical interpretation and not, in the space of little more than two centuries, produce a government that has gone from one with few and defined powers governing a citizenry with virtually unlimited liberty to a state of virtually unlimited powers ruling subjects having few and heavily constricted rights.
He had nothing to do with the drafting of the Constitution. Pity really. He probably would have been a solid, antifederalist influence on Madison, who instead was a complete tool for Hamilton.
I’m familiar with Brutus. Thank you. But, I asked for your understanding and your opinion.
Brutus pretty well explains it. Of course, as I mentioned, you can look to the Constitution in operation and see what implied powers means. Washington and Hamilton and Marshall, all Federalists, all Constitutional Convention delegates (Washington as presiding officer) made it plain in the controversy surrounding the first bank of the US. There's no need for my opinion when we have the facts.
What’s farcical is the peculiar notion that a document of republican fundamental law can be laid open to whimsical interpretation
No, it's entirely predictable, as you would know if you really were familiar with the writings of Brutus:
They [the courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort. The legislature must be controlled by the constitution, and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controllable by the other, they are altogether independent of each other.The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.
From the 11th essay of "Brutus" taken from The New-York Journal, January 31, 1788.
Here’s Hamilton from the convention:
” I have well considered the subject, and am convinced that no amendment of the confederation can answer the purpose of a good government, so long as State sovereignties do, in any shape, exist.”
” I apprehend the greatest danger is from the encroachment of the States on the national government”
James Madison
Why does that sound so familiar?
And as I have requested, why don’t you explain to us what implied powers means. So far (insofar as you’ve done anything), all you’ve done is to cite perversions of implied power.
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