Sunday, May 24, 2015
Here's How They Do It -OR- The Biggest Flaw in the Constitution
"They" are the Neoliberals who over decades and by sheer, disorganized, dumb luck have brought about a coup in our Government. For years I wondered how so many unconstitutional laws could come into being in this Land with barely a peep of protest from anyone. I think perhaps finally I've figured it out. Over the years, now and again, I heard this-or-that politician mention the "necessary and proper" clause of the Constitution; but I never paid much attention to it until recently.
"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."
~ Article I, Section 8, Clause 18, United States Constitution
The Powers mentioned in that clause, "...the foregoing Powers, and all other Powers...", are those delegated by We the People to our Federal Government. They are the Enumerated Powers that we have given to the Congress, the Executive Branch, and the Judicial Branch. The Government has only those Powers. Unfortunately, going all the way back to our Founding Fathers, some have claimed that Article I Section 8 Clause 18 gives other, implied Powers to the Government. Hamilton and Jefferson debated that very point.
Alexander Hamilton was the Founder who proposed that our Gov't should be that of a Monarchy; he wanted a King as our leader. Luckily, that idea quickly was scrapped. Nonetheless, Hamilton kept fighting for a central government bordering on dictatorial. He wanted a central bank, and he claimed that Article I Section 8 Clause 18 gave the Gov't implied Powers. Hamilton argued that the sovereign duties of a government implied the right to use means adequate to its ends, regardless of specific Enumerated Powers. Jefferson opposed him at every turn until Hamilton was killed by Aaron Burr in a duel, July, 1804. Nevertheless, the seed had been planted. Supreme Court Chief Justice John Marshall and others promoted the idea that the Government had implied powers. At times, the "necessary and proper" clause was referred to as the "elastic clause".
The idea eventually lost favor in the late 1800s up until the 1930s. With the Roosevelt Administration, the "elastic clause" was back in favor... and as the Fed Gov't expanded, the idea became more and more the flavor of the day. As that happened, "Legislative Absolutism" took hold more and more. In 1901, Supreme Court Justice Harlan coined that term, warning of a time when unconstitutional laws would be passed as a matter of course.
Any examination of the "necessary and proper" clause with a view toward common sense tells us that no additional Powers are implied by it. Furthermore, it makes ZERO sense that so-called "implied" powers would be able to result in a law which would essentially nullify any specific written clause in the Supreme Law of the Land. Finally, the use of "implied" powers apparently is virtually without limits. It's whatever an indoctrinated, propagandized public will tolerate.
EXAMPLE--- The so-called PATRIOT Act essentially nullifies the Fourth Amendment. Gathering of bulk data is permitted... without the people being intruded upon having to be suspects of any kind. In addition, FBI Agents can write their own Search Warrants... the Fourth Amendment makes it clear that judges must issue those. Finally, other portions of the Act violate the Due Process Clause of the Constitution. [So do portions of the National Defense Authorization Act, the NDAA.]
All the "necessary and proper" clause is saying is this: Congress can pass Laws in order to implement the specific Enumerated Powers that were delegated to them by We the People. Nowhere does it say or imply that Laws contravening the Constitution may also be passed. Only an attorney with no common sense would infer such a thing from that clause. Both Hamilton and Marshall were attorneys. [My admittedly limited experience with attorneys tells me that very few of them have any common sense whatsoever. They appear to live in a very esoteric world; as with everything, I'm sure there are exceptions.]
My conclusion is that certain people in our political history wanted a way around the constraints of the Constitution. It appears they desired a central government so strong that it bordered on dictatorial. To achieve that objective, they inferred from primarily the "necessary and proper" clause, but also from the "commerce" and "general welfare" clauses, so-called implied powers. I see that as pure BS. I sincerely doubt that it was the intention of almost all our Founders to give the Government unknown, virtually unlimited Powers that could, in fact, contravene the listed or Enumerated Powers delegated by We the People. That makes no sense... and more importantly, it makes the Constitution worthless. The primary purpose of the Constitution is to restrain/constrain government; that's not possible if we accept the concept of "implied powers"... which can be almost anything.
Not just my opinion. Be Well
p.s. Special thanks to my good friend in Sacramento, Bob, for triggering the theme of this piece.