Posted on 02/07/2015 9:48:42 AM PST by sourcery
Do The "General Welfare" And The "Necessary And Proper" Clauses Grant Congress Powers And Authorities That Are In Addition To The Other Enumerated Powers?
"It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it." ~ Marbury v. Madison, 5 U.S. 137
The interpretation of the General Welfare clause as a general grant of power separate from any of the others would cause most of Article I, section 8 to be "without effect." That alone destroys the argument that the General Welfare clause grants additional power to Congress instead of acting as a further restraint on how it uses the enumerated powers it is specifically granted. To interpret the General Welfare clause as a general grant of additional powers would render the explicit enumeration of powers that follow the General Welfare clause superfluous, since the scope of powers included in "for the general welfare" is far broader than that of the explicitly enumerated ones.
The General Welfare clause simply requires that, when Congress passes laws to regulate commerce (for example,) they must do so with the aim and effect of promoting the general welfare. It does not mean they can pass laws that promote the general welfare that don't qualify as an exercise of a granted power.
Were that not the case, the enumeration of specifically granted powers would have been completely unnecessary, and could have been left out of Article I without any change to the powers granted to Congress. But that cannot be the correct interpretation, because one of the most revered and influential rulings in the history of the Supreme Court said that interpreting the Constitution that way was impermissible.
Before the Constitution had even been ratified, critics argued that the "General Welfare" clause was a general grant of unlimited power. James Madison refuted that interpretation in The Federalist #41:
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.
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.”
When Article I, section 8 enumerates the powers granted to Congress, there is only one sentence where Congress is granted any power to actually make any laws whatsoever:
"The Congress shall have 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."
There is no other sentence in the entire text of the original Constitution that specifically grants Congress any authority to make any laws.
Yes, Article I does say "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." But the intent of those words is clearly not to grant Congress unlimited authority to legislate as they please, but rather to explicitly limit whatever law-making authority that the Constitution is granting so that it applies to Congress alone, and does not apply to either the President or to the Supreme Court. The words that limit the grant of legislative authority to Congress do not say what legislative powers are granted, only that whatever they are, they are granted to Congress—and by omission of any such grant of authority, are denied to anyone else.
Similarly, the grant to Congress of the authority to "regulate commerce" is not a grant of authority to do so by making any laws. Congress could "regulate commerce" in other ways, such as by making treaties, signing contracts with the states, or even by signing contracts with private parties.
It is only the "Necessary And Proper Clause" that actually grants Congress any power to make laws in order to pursue the ends it is authorized to pursue by the preceding enumeration of the powers that it is being granted in Article I, section 8. So the clear intent and effect of the "Necessary and Proper Clause" is to require that whenever Congress does pass any laws, those laws must be for the purpose of "carrying into Execution the foregoing Powers," must be "necessary" for that purpose," and must be "proper" (rightful.)
That such is the intended meaning is made irrefutable by the text of the additional Amendments that grant Congress additional powers (some grant no additional powers.) Every single one of them that does grant additional powers includes a clause similar to the one included in the 26th Amendment (the last one ratified to date): "The Congress shall have power to enforce this article by appropriate legislation."
That fact conclusively proves that the grant of the power to seek a goal or an end, or to attempt to achieve a purpose, is separate and distinct from the power to make laws in order to pursue that end, goal, or purpose. Were that not the case, the additional clauses added to Amendments that specifically grant Congress the power to make laws in order to exercise or enforce the powers granted by the Amendments would be redundant. And an interpretation of the Constitution that makes entire numbered clauses redundant is "impermissible," according to Marbury vs. Madison.
So again, there is no way that the "Necessary and Proper Clause" was ever intended as a general grant of power beyond those that had just been explicitly enumerated. Had the "Necessary and Proper" clause been intended as a grant of additional authority instead of as a constraint on the laws that could be made pursuant to granted authorities, why bother enumerating any grants of authority at all?
For that reason, and also (independently) because of the precise wording used, the grant of the power to make laws that would be necessary and proper as a means to pursue the ends authorized by the Constitution could only have been intended as yet an additional restriction on the powers granted, so that to be Constitutional, the laws that Congress makes must not only be honest attempts to use a granted authority, must not also be for the general welfare, but must also be necessary for that purpose, and must also be proper (rightful.)
It is never "proper," never rightful, to violate the rights of individuals. Never. That means that the correct interpretation of the "necessary and proper" clause is that, although Congress may "build post roads," it may not kill people in order to do so, because that would not be proper (rightful,) no matter how "necessary" it might be in order to build a post road in some specific case. The same holds for any other individual right, and for any other granted power.
But the Powerful have interpreted General Welfare in such a way that they can do anything they want.
This interpretation is false on its face.
The commerce clause does not give the power to congress to regulate commerce. Its only intent is to prevent one state from imposing tariffs or taxes on the products of another state passing over its borders. If the “general welfare clause” was intended to trump article 1, section 8, then the founders wasted ink when penning the rest of the Constitution. They did not, of course, intend that.
The Preamble does not confer ANY powers to the Federal government.
Yes, it does. That's exactly what it says. The only issue is what was meant by the phrase "regulate commerce."
If you mean to assert that the modern meaning is much broader than the one intended by the authors, then I agree.
One dope of a congressman once referred to it as the
“Good and Plenty” clause.
How far down, without honor, without decency, have these so-called lawmakers descended?
Absolutely flabbergasting how they’ve subverted and trivialized the Constitution.
IMHO
The Commerce Clause trumps everything.
That's why the founders put it in there. They never really meant for the US feral government to have enumerated powers.
That would be so demeaning.
"The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;" etc.
Stll, that power is restricted by the enumerated powers.
It says it can regulate foreign commerce...it specified foreign.
I stand corrected, it does say foreign nations, and among the several states, and with Indian tribes. Still, the founders intent that it only prevent states from imposing tariffs on other states can be found in the Federalist Papers.
Exactly. Amazing how many people today spin it as a grant to nearly absolute power.
Federalist/Anti-Federalist ping. It’s a vanity, but a well thought out vanity.
None if you believe the people who sold & ratified the Constitution. They are qualifications of the enumerated powers not power in themselves.
This raises a very interesting proposition, for a seated Article V convention.
That is, while their individual states may restrict what *new* things, like a balanced budget resolution, that can be added to the constitution; the delegates at a convention may be free to “eliminate unconstitutional extrapolations made to the constitution.”
That is, they could resolve to wipe away any number of national sins made over the course of years, to include FDR’s extrapolation of the Interstate Commerce Clause to mean Intrastate as well; LBJ’s extrapolation of the General Welfare Clause to mean the creation of a welfare state; and the current EPA’s effort to nationalize all water, not just navigable water, as well as an atmospheric gas, carbon dioxide. Extraordinarily outside of the federal government’s constitutional authority.
This resolution wiping away countless extrapolations could be done in the preamble to the Article V convention agreement. In a manner of speaking, they would be using an external clause much like those who abused the other external clause, to end their abuses.
It would also “nail on the coffin lid” as a perpetual order to the Supreme Court that it could no longer permit such extrapolations, be they congressional acts or by judicial activism or precedent.
The specific clause reads-
"The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;
The conjunction 'and' in the phrase provide for the common defense and general welfare makes this a single power - to promote the general welfare by providing for the common defense.
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So again, there is no way that the "Necessary and Proper Clause" was ever intended as a general grant of power beyond those that had just been explicitly enumerated.
True. Not only for the reasons mentioned, but the the Constitution is limited because of the Rule of Exclusion....which the Founders wrote as the 10th Amendment.
• § 207. XIII. Another rule of interpretation deserves consideration in regard to the constitution. There are certain maxims, which have found their way, not only into judicial discussions, but into the business of common life, as founded in common sense, and common convenience. Thus, it is often said, that in an instrument a specification of particulars is an exclusion of generals; or the expression of one thing is the exclusion of another. Lord Bacon's remark, "that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated," has been perpetually referred to, as a fine illustration.
Justice Joseph Story on Rules of Constitutional Interpretation
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Thanks for the PING, Publius. :-)
See Post #15. People are beginning to understand just how powerful Article V is.
Regarding the title of this thread, the key, imo, to understanding the naton’s problems is to consider that low-information voters have probably never heard of the “General Welfare” and “Necessary and Proper” clauses. All that such institutionally indoctrinated voters understand is that if they want to keep their constitutionally indefensible federal welfare “rights" then they have to vote for Democrats.
The following excerpt is from an official letter from Thomas Jefferson to President George Washington to explain why Alexander Hamilton’s proposed national bank was unconstitutional. Sadly, the excerpt beautifully predicted the situation that we are in now with respect to unconstitutionally big federal government.
"1. To lay taxes to provide for the general welfare of the United States, that is to say, "to lay taxes for the purpose of providing for the general welfare." For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.” — Jefferson's Opinion on the Constitutionality of a National Bank, 1791 .
Although socialist FDR was not the first president to ignore the federal government’s constitutionally limited powers, he was reelected so many times that he was eventually able to establish an activist justice majority who looked for excuses for corrupt Congress ignore its constitutionally limited powers. These justices succeeded in doing so, imo, when they wrongly decided Wickard v. Filburn in Congress’s favor in 1942.
More specifically, using terms like “some concept” and “implicit,” here is what was left of the 10th Amendment after FDR’s thug justices got finished with it.
“In discussion and decision, the point of reference, instead of being what was “necessary and proper” to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit [emphases added] in the status of statehood. Certain activities such as “production,” “manufacturing,” and “mining” were occasionally said to be within the province of state governments and beyond the power of Congress under the Commerce Clause.”—Wickard v. Filburn, 1942.
FDR’s justices had essentially reduced the 10th Amendment to a wives’ tale imo.
Yes, good points.
Yeah, but if we have learned anything from Obamanation, it is that you need self-enforcing mechanisms. The term limit on presidents is “self enforcing,” to the extent that if Obama wants to stay in office permanently, he would need to evade the fact that the actual election of the next president will occur when the ballots of the electors are counted. Simply canceling the popular election wouldn’t do it, because the states would then be positioned to execute Plan B - direct election of the Electors by the legislatures of the states.I would favor enforcement by the people - make whoever acts under color of legitimate authority personally responsible if they obey an unconstitutional executive order. And not pardonable by the POTUS who made the unconstitutional directive. We already have “responsibility” at the top in the impeachment power - but that proves to be illusory. The only way to address it is to make people afraid to obey the president if an order is clearly unconstitutional.
Maybe the Constitution should have a presidential Recall provision - Congress can cause a snap election, but the people who vote for it have to stand for reelection along with the POTUS. Since your side could only lose seats, that wouldn’t be attractive to a party not certain of its standing with the people.
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