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To: Amendment10

Haven’t you been paying attention since Helvering? Congress has power not only to tax but also to spend, regulate, whatever based on the “general welfare” clause of Section 8, wherein providing for the general welfare is interpreted as meaning found whatever it is they want without violating other parts of the Constitution people arbitrarily think are more important, as well as extraconstitutional ideas that they happen to favor.

By the way, Gibbons v Ogden is a prime example of constitutional overreach itself. Marshall bastardized “commerce” into “navigation,” and also butchered the necessary and proper clause. For all that it was miraculous by today’s standards. I wonder why you stress following section 8 of article 1, of all things, when they don’t follow much if anything else in the there.


32 posted on 01/06/2013 12:48:43 PM PST by Tublecane
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To: Tublecane; All
Justice Marshall was right to interpret the Constitution narrowly in Gibbons. After all, Jefferson had indicated that, since the Constitution is amendable, should the states ever decide that the Supreme Court has interpreted the Constitution too narrowly on a given issue, then the states can exercise their unique Article V power to ratify proposed amendments to do so to effectively overturn unpopular Supreme Court decisions.
"In every event, I would rather construe so narrowly as to oblige the nation to amend, and thus declare what powers they would agree to yield, than too broadly, and indeed, so broadly as to enable the executive and the Senate to do things which the Constitution forbids." --Thomas Jefferson: The Anas, 1793.

In fact, about a decade before Constitution-ignoring socialist FDR was elected to the Oval Office, the Court had reflected Jefferson's words above as evidenced by the following excerpt from Linder v. United States.

"4. An act of Congress must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score." --Linder v. United States, 1925.

Also, the problem with the split Supreme Court of the 1930s subjectively reading federal taxing and spending programs like SS into the general welfare clause in Helvering is the following. Activist justices had wrongly ignored that Thomas Jefferson had clarified the following reasonable limits on Congress's general welfare clause powers.

"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.

In fact, regarding things like government retirement and healthcare programs, Jefferson had clarified that the Founding States had uniquely reserved to the states the power to take care of the people.

"Our citizens have wisely formed themselves into one nation as to others and several States as among themselves. To the united nation belong our external and mutual relations; to each State, severally, the care of our persons (emphasis added), our property, our reputation and religious freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801.

So as Jefferson had complained, why have a constitutionally limited power federal government if activist justices are going to find "hidden" federal government powers in clauses like the general welfare clause?

It also doesn't help matters when voters are not being taught the Founder's constitutional division of federal and state government powers.

34 posted on 01/06/2013 2:23:18 PM PST by Amendment10
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