MathExtremist
MathExtremist
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April 3rd, 2012 at 10:03:12 PM permalink
Quote: QuadDeuces

It can be argued that the "Common defense" and "General Welfare" the Congress has the power to provide for in I.8.1 is not some open-ended, nebulous set of powers, with the actual powers of the Congress instead being explicitly enumerated in the rest of Article I Section 8.


I believe that argument to be flawed. It's long-settled law that Congress may pass laws establishing institutions outside the explicit scope of Article I Section 8 (and I apologize for my earlier mis-cite as Article 8, which doesn't actually exist.) See McCulloch v. Maryland, 17 U.S. 316 (1819), ruling that Congress may indeed establish a federal bank and therefore, states may not tax it. The taxation aspect is not relevant here, but the key point is that Congress was (and is) authorized to pass laws that are not directly related to one of the enumerated powers.

In addition, it is also a long-held principle of legal construction that words or phrases in a law may not be construed as mere surplusage; in other words, if a phrase forms part of a law, it must mean something. The last clause of Section 8 says "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." A reading of that language which construes "the foregoing Powers" as the only authorized activities of Congress would render the subsequent phrase "all other Powers..." meaningless. It therefore cannot be the proper reading.
"In my own case, when it seemed to me after a long illness that death was close at hand, I found no little solace in playing constantly at dice." -- Girolamo Cardano, 1563
QuadDeuces
QuadDeuces
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April 3rd, 2012 at 10:33:28 PM permalink
Yup. The Hamiltonians won and the Madisonians lost. That's why we are where we are today, with a big, bloated, central government that can do whatever it wants to whomever it wants whenever it wants.

Doesn't make it a correct interpretation of original intent, nor does it make it a positive influence on liberty.

The other vested powers you mention include funding the judiciary, etc. Other examples would be the powers described in Article IV. These include the enforcing the full faith and credit clause, admitting new States into the Union, jurisdiction over Territories, and, laughably, guaranteeing a Republican form of government.

"General Welfare" was not supposed to be a catch-all. The beast is out of the cage.
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