Wednesday, April 16, 2014

The Three Clauses That Have Caused Much Mischief

The Founders wanted to bequeath to posterity a straightforward government that inhibited the abuse of power. Their written words remain clear. Certain politicians and judges have skewed their meaning to do what they want, but most of the harm can be attributed to three clauses:
1.         The necessary and proper clause,
2.         The commerce clause, 
3.         And the general welfare clause.

It is nonsensical to assert that the Founders meant for any of these clauses to license general national authority. 

The necessary and proper clause came at the end of Article I, Section 8. It reads, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” The operative word of the clause was foregoing. It was clearly meant to be restricted to the enumerated powers listed just prior to the clause.

To regulate commerce meant the regulation of trade, not the regulation of all economic activity.

The relevant general welfare clause introduces the enumerated powers (Article I, Section 8) and reads, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” This clause is meant to define the national government’s taxing authority. The use of the words general welfare precluded repeating all of the enumerated powers that immediately follow. If the Founders wanted to give Congress unlimited general authority, they would have ended Section 8 right there. (The term general welfare can also be found in the preamble, but the preamble does not bestow powers.)

Joseph Story, who served on the Supreme Court from 1811 to 1845, wrote the following about the necessary and proper clause. “The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress.”

In Federalist 22, Alexander Hamilton wrote that national supervision of commerce was needed because “the want of it has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the States.”  The dissatisfaction between the states was caused by state taxes imposed on trade. The commerce clause was meant to give the national government authority over trade treaties with foreign powers and taxes associated with interstate trade. It was never intended to give the national government authority over every aspect of our lives that required the expenditure of money.

As for the general welfare clause, James Madison, the Father of the Constitution, wrote, “With respect to the words general welfare, I have always regarded them as qualified by the details of power connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution … not contemplated by the creators.”

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