Posted on 06/07/2011 6:54:23 PM PDT by neverdem
Here’s Hamilton with a little bit more expanded opinion on state sovereignties (to Jefferson): "I own it is my own opinion, though I do not publish it in Dan or Bersheba, that the present government is not that which will answer the ends of society, by giving stability and protection to its rights, and that it will probably be found expedient to go into the British form. However, since we have undertaken the experiment, I am for giving it a fair course, whatever my expectations may be. The success, indeed, so far, is greater than I had expected, and therefore, at present, success seems more possible than it had done heretofore, and there are still other and other stages of improvement which, if the present does not succeed, may be tried, and ought to be tried, before we give up the republican form altogether; for that mind must be really depraved, which would not prefer the equality of political rights, which is the foundation of pure republicanism, if it can be obtained consistently with order. Therefore, whoever by his writings disturbs the present order of things, is really blameable, however pure his intentions may be, and he was sure Mr. Adams' were pure."
And here’s Hamilton’s view of what constitutes “good” government:
“which would have been in fact a compromise between the two parties of royalism and republicanism. According to this, the executive and one branch of the legislature were to be during good behavior, i.e. for life, and the governors of the States were to be named by these two permanent organs. This, however, was rejected; on which Hamilton left the convention, as desperate, and never returned again until near its final conclusion.”
That was Madison’s opinion as the convention commenced. During the debates his view changed to the extent that he became one of the two primary contributors of The Federalist Papers.
”There cannot be a greater solecism in politics than to talk of power in a government, without the command of any revenue.”
- Brutus on implied powers
How wrong could have Brutus been?
Brutus was spot on. If you don’t control revenues, you don’t have power. Duh.
Implied powers means the gubmint is not limited to expressly delegated powers. Duh.
Hamilton was big gubmint all the way. It’s well known. What’s your point?
So you are saying that George Washington, Alexander Hamilton, and John Marshall, all framers, perverted "implied powers"? On what basis do you say that? Who is a greater authority?
Brutus seemed to believe that a federal govt would deprive the states of all sources of revenue (”There cannot be a greater solecism in politics than to talk of power in a government, without the command of any revenue.”). Duh.
He was right. If the national government, ever expanding, were not eating up so much of the substance of the people, the states might actually be solvent! And since the states are subservient to the national government, they can’t do a thing about it.
About that “perversion” of implied powers. Explain to me how George Washington, Alexander Hamilton, and John Marshall “perverted” implied powers doctrine.
The point is that the national government is a complete government, with control of the purse and the sword. Those are not debatable points. At the time, there was some pretense that the new system retained some confederated aspects. Brutus correctly diagnosed that as false.
One aspect suggests that -without naming Madison-Thomas Cooley
writing the General Principles of Constitutional Law,Little Brown and Company ,1880 did not understand Madison and the
14th Amendment as the author of this seems to consider such.
The meaning of “implied” is considerably more constrained than that. When a constitutional end is required, the means to exercise the end are necessarily authorized. Otherwise the “express” power is without effect.
For example:
Congress may from time to time ordain and establish such inferior Courts (inferior to the Supreme Court) as They deem necessary. If the power to provide offices and office furniture, bailiffs and clerks, and the other adjuncts necessary to conduct the court’s business is denied because it has not been “expressly delegated,” then the “express power” to establish courts is to no effect. Indeed, the Court cannot exist if it has no place to stand and conduct its business.
“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.”
James Madison, Federalist #44
This does not suggest in any way that means are authorized beyond the express end required.
What was your point when you quoted Hamilton?
If my point is not, or does not shortly become clear, then I expect the event will never occur.
Exactly. Few and defined powers is a farce. How many “means” have been deemed “necessary and proper” to “provide for the general welfare”, for example? As was pointed out by Brutus at the time, the powers granted in the Constitution are virtually limitless, as history has now demonstrated beyond any doubt.
Having trouble concentrating? My point was to demonstrate the prevailing view on "implied powers." Later on it was to further elucidate Hamilton's intent, as a framer.
Don’t put words in my mouth. I don’t know where they’ve been.
Washington was notoriously reticent and circumspect in expressing his views, so I can’t say how expansive an interpretation he had of implied powers. As President, Washington presided over the Convention, and did not participate in the debates to any great extent, excepting one notable and fascinating event near the close. He seemed to think that a reasonably strong central government was necessary.
Hamilton seemed to believe that the Preamble to the Constitution (specifically, to “provide for the common defence, promote the general Welfare”) was sufficient to permit Congress to enact most any legislation they wished.
Marshall suffers from the same handicap you hung on Jefferson. He wasn’t in attendance at the convention. He did seem to have the peculiar idea that the Constitution permitted whatever it did not “expressly” prohibit.
“Who is greater authority? you ask. I suggest anyone who stayed to the close of the Convention and did not quit in a snit, as did Hamilton, simply because his idea of a government structure was not accepted, only to return at the last moment. The Hamilton quote I provided some time ago demonstrates that he did later admit his view of the Constitution was overly pessimistic. Madison is commonly accepted as a primary force behind the creation of our document of fundamental law, but you’ve already expressed your contempt for Madison, so I’m sure you cannot bring yourself to accept Madison as an authority even though he provides the answer to your dilemma over express powers.
Most of the “Anti-Federalists” left the Convention and, unlike Hamilton, did not return. Some stayed, but refused to sign the finished document. The main problem the Anti-Federalists had was that they wanted to have their cake and eat it too. They wanted the security of union but they wanted the union to have none of the power necessary to provide that security. Hence their incensed, almost pathological, obsession with “express powers.” They were not receptive to Madison’s description of implied powers. It did not comply with their ambitions. This “all or nothing at all” attitude has undeniably contributed to the slow drip, drip, drip perversion of the Constitution over two centuries. It is a perversion limited only by the avarice and ambition of those in government and the avarice and ambition of those who put them there.
This could not be a surprise to some of the Founding Fathers. They were aware of the fragility of republics, and that history indicated a life span of little more than two centuries before it would succumb to ambition and avarice. Hence, Ben Franklin’s response to Mrs. Powel’s query, “Well Doctor, what have we got, a republic or a monarchy?” amounting to a prophetic, “A republic, if you can keep it.”
(Farrand’s Records, Vol III)
Some of the Founding Fathers would probably be astounded to discover that they could not infinitely stretch and strain the Constitution to fit their ambitions and not be able to retire to its security unaffected. No less true of the “Anti-Federalists.”
“The unity of government which constitutes you one people is also now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.”
- George Washington
By the way, which Madison was right? The one that argued that the national government couldn’t authorize a bank, or the Madison that authorized a bank? lol
I'm not. I referred to the First Bank of the US as the test case for implied powers, which was supported by Washington, Hamilton, and later Marshall, among others. You said I was bringing up "perverted" views of implied powers. Logically, then, Washington et al, in your view, perverted implied powers. Inescapable.
Washington was notoriously reticent and circumspect in expressing his views, so I can’t say how expansive an interpretation he had of implied powers.
Nonsense. He was a two term president with a record which includes siding with Hamilton on the question of implied powers.
Hamilton seemed to believe that the Preamble to the Constitution (specifically, to “provide for the common defence, promote the general Welfare”) was sufficient to permit Congress to enact most any legislation they wished.
And history has shown he was correct. Brutus warned as much:
It is absurd to say, that the power of Congress is limited by these general expressions "to provide for the common safety, and general welfare," as it would be to say, that it would be limited, had the constitution said they should have power to lay taxes, etc. at will and pleasure. Were this authority given, it might be said, that under it the legislature could not do injustice, or pursue any measures, but such as were calculated to promote the public good, and happiness. For every man, rulers as well as others, are bound by the immutable laws of God and reason, always to will what is right. It is certainly right and fit, that the governors of every people should provide for the common defense and general welfare; every government, therefore, in the world, even the greatest despot, is limited in the exercise of his power. But however just this reasoning may be, it would be found, in practice, a most pitiful restriction.
What the antifederalists wanted was a confederacy. They saw consolidation as the road to tyranny. Obviously, they were correct.
A very interesting exchange.
“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.
- James Madison, Federalist 41
“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?
- James Madison, Federalist 41
We can understand why Chuck U Schumer, or even Alexander Hamilton might wish to misunderstand Madison’s words (avarice and power hunger on the part of Schumer; ambition and perhaps power hunger on the part of Hamilton).
What’s your reason?
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