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To: x
"Many of the things the federal government does now are unwise and some may be unconstitutional, but an act of the federal government is not unconstitutional simply because it isn't explicitly provided for in the Constition. They could have written a Constitution that much more decisively restricted the powers of the federal government by using the word "expressly", but they chose not to do so."

Was that also an attempt at a clever interpretation of the Constitution. When in doubt consult the writers of the document.

From Federalist Papers #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.

99 posted on 04/10/2002 5:50:18 AM PDT by SKI NOW
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To: SKI NOW
So far as I can see, Madison is arguing that things which in no way fit under the powers granted to the federal government, things which go against the purposes of the Constitution, like destroying the freedom of the press or the right to trial by jury cannot be justified under the Constitution by the "necessary and proper clause." I don't think anyone would disagree. Madison goes further in saying that the power to tax doesn't include the power of the federal government to change inheritance or contract law. I believe these are still taken care of by states or by the common law.

Some things were to be forbidden to the federal government, and some areas were to be outside of its reach. But there was also to be room for the federal government to use it's "implied powers" to fulfill the powers expressly delegated to it by the Constitution. Here is Madison explaining why the "necessary and proper" clause was indeed necessary and proper. And here is Hamilton. There are more documents from the founders bearing on this question here. You might check this one example of how Madison reads the Constitution: roads and lighthouses, necessary and proper; canals, no; dredging harbors and rivers -- it depends. I don't have the time to make a thorough study, but my impression is that there is more Constitutional leeway for the federal government than Sobran believes.

113 posted on 04/10/2002 9:07:29 PM PDT by x
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To: SKI NOW
So far as I understand him, Madison is saying that the "necessary and proper clause" of the Constitution can't be stretched to destroy freedom of the press or the right to trial by jury. He's right about that. That clause can't be used to negate the rest of the Constitution. It is interesting, though, that a Bill of Rights was felt necessary to make this explicit. He goes on to say that the clause also couldn't be used by the federal government to change inheritance or contract laws. So far as I know these are still dealt with by the states, or by the common law.

There are powers that aren't given to the federal government. There may also be those that can't fit under the implied powers of the federal government in the Constitution. But those implied powers do give the federal government a wide leeway. Sobran is just wrong if he argues that the federal government can only do those things specifically and expressly mentioned in the Constitution. To execute the powers delegated in the Constitution and to fulfill its objectives it's inevitable that the federal government will take on more tasks. You can find more information about the founders on the "necessary and proper clause" here. The founders, as opposed to those who wanted to reject the Constitution, recognized that the federal government would have more powers than had been granted to it by the Articles of Confederation.

115 posted on 04/11/2002 9:30:46 AM PDT by x
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To: SKI NOW
"They could have written a Constitution that much more decisively restricted the powers of the federal government by using the word "expressly", but they chose not to do so."

Why look farther than the Constitution itself?

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Bill of Rights

117 posted on 04/11/2002 10:04:58 AM PDT by B. A. Conservative
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