Another word on mandates

I think the better Madison quote comes from Federalist No. 41, in which he responds to the problems brought up by a number of Anti-Federalists:

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.

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the Articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare.” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare and allowed by the United States in Congress shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

The point brought up is that there are those who will ignore the semi-colon or otherwise misconstrue the actual verbiage in light of expedient legislation. The argument is not one of the logic involved, which those same Anti-Federalists actually point out, but one of human nature and the nature of governments over time moving away from restricted rights for government unless there are some very and extremely harsh checks on that power put in place.

Hamilton’s goal of a ‘robust role’ for government in commerce would be addressed by the veto of the US National Bank Veto of 1832, which addresses the very concerns about stare decisis, powers and limitations on government:

It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial, and executive opinions against the bank have been probably to those in its favor as 4 to 1. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me.

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

But in the case relied upon the Supreme Court have not decided that all the features of this corporation are compatible with the Constitution. It is true that the court have said that the law incorporating the bank is a constitutional exercise of power by Congress; but taking into view the whole opinion of the court and the reasoning by which they have come to that conclusion, I understand them to have decided that inasmuch as a bank is an appropriate means for carrying into effect the enumerated powers of the General Government, therefore the law incorporating it is in accordance with that provision of the Constitution which declares that Congress shall have power ” to make all laws which shall be necessary and proper for carrying those powers into execution. ” Having satisfied themselves that the word “necessary” in the Constitution means needful,” “requisite,” “essential,” “conducive to,” and that “a bank” is a convenient, a useful, and essential instrument in the prosecution of the Government’s “fiscal operations,” they conclude that to “use one must be within the discretion of Congress ” and that ” the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution;” “but, ” say they, “where the law is not prohibited and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground.”

The principle here affirmed is that the “degree of its necessity,” involving all the details of a banking institution, is a question exclusively for legislative consideration. A bank is constitutional, but it is the province of the Legislature to determine whether this or that particular power, privilege, or exemption is “necessary and proper” to enable the bank to discharge its duties to the Government, and from their decision there is no appeal to the courts of justice. Under the decision of the Supreme Court, therefore, it is the exclusive province of Congress and the President to decide whether the particular features of this act are necessary and proper in order to enable the bank to perform conveniently and efficiently the public duties assigned to it as a fiscal agent, and therefore constitutional, or unnecessary and improper, and therefore unconstitutional.

Without commenting on the general principle affirmed by the Supreme Court, let us examine the details of this act in accordance with the rule of legislative action which they have laid down. It will be found that many of the powers and privileges conferred on it can not be supposed necessary for the purpose for which it is proposed to be created, and are not, therefore, means necessary to attain the end in view, and consequently not justified by the Constitution.

Here, some 43 years on from Federalist 41, we have the outlay of powers and how they work between the States and the federal government and within the federal government itself.

First off is that precedent, both SCOTUS and legislative, is a dangerous source of authority especially when examining the constitutional powers granted to the federal government. You do not ignore previous decisions, but they must not trump reasoning on constitutionality.

Second each arm of the federal government has separate and independent powers, not co-equal powers. This is forgotten and misconstrued in the modern day, but these separate powers were designed as independent checks and balances on federal government so that each branch has its review of constitutionality independent of the other branches. Congress is to create laws that are constitutional, the President has the veto power to reject laws that are unsound, improper, unnecessary or unconstituional. The SCOTUS is given grant to judge on the constitutional basis of laws and strike down those not adhering to the constitution. These are in no way equal powers, but separate and independent powers. So just as it may be within the scope of power of Congress to do something, it must be judged first by the President as necessary and proper exercise of powers, and judged by the SCOTUS on those grounds examining their independent powers in that judgment.

Third and not to be forgotten, is that there needs to be a general assent to legislation from the States and the people, and acknowledging that such legislation is desired from those levels and can be executed via necessary and proper laws that adhere to the constitution.

Thus with health care and the powers granted to government we hear rejoinders on:

- Precedent – A dangerous source of authority regarding constitutionality as prior judgments may not have taken the full scope and power of the constitution into consideration as it regards other areas of legislation and law. When judging the constitutionality of a law, the restricted scope of prior decisions may not represent a true reading of those power grants for a particular statute. In health care and similar areas there are few arguments utilizing Amendments IX and X, and if the court has been remiss in the past in considering those, than those grounds can serve as a basis for new suits on legislation to call into question the necessary and proper part of powers granted to the government when enacting laws.

- Necessary and Proper – Even granted that the federal government may have a role in health care, can Congress create a necessary and proper law that adheres to its constitutional restrictions as to being wise and fiscally sound, and having the general support of the States and the people? These are not minor considerations and no election changes the fact that the people and States have been indifferent to passing this question on to the federal level. Thus, without that clamor and, indeed, the overwhelming majority not having expressed a want of federal intervention, there is little that Congress can stand on. Even appealing to precedent in this case must take into consideration all of the Congresses that have brought up this question, all the States that have considered it, and the general view of the electorate separately. Precedent does not lay basis for good law without these legs to stand on via precedent: the SCOTUS is not alone in having a history, and all relevant history must be examined as part of new legislation.

- Powers and Privileges – Those organs that Congress creates are made via the powers it has in the constitution. If the powers granted are not necessary to the purpose involved, then Congress cannot create such an organ of the government as it does not have the power to do so. If created without power to do a purpose, then it is not a constitutional object of government nor a means to achieve the ends of Congress. This is a question that must be established in light of mixed precedent, necessity, propriety and the actual extent of the power grant to the federal government. Just because legislation is expedient and towards good ends, that does not give it necessary and proper standing within the constitution, nor power to Congress to enact it.

An unlimited interpretation of ‘general welfare’ wipes all question of limited power away and reduces the Nation to a state of tyrannical government. If the form and function of these powers were so sweeping, the constitution would say so, and yet it defines the exact opposite, particularly when examined in Amends. I, II, V, IX and X. The specific things the federal government cannot do are joined by a general rule that what is not given to the federal is retained by the States and the people. Do note that the understanding of power functions is outlined in Law of Nations, specifically mentioned in the constitution and understood by the founders so that when power grants are seen in the document, it is easy to examine the similar sections of Law of Nations and see what the scope and meaning of the powers are (as witness George Washington’s Neutrality Proclamation) and then examine how those scopes of powers continue as grants from the people to the federal government. From that additional questions in regards to security functions and their organs (CIA, NGA, NSA, etc.) are to be examined in the Commander of the Armies and the Navies power as they are, at heart, military functions for National Security (there may be too many of them, yes, but that is a different argument). Likewise to uphold the laws of the US, Congress has created the FBI for general laws and other organs for things like Immigration and Naturalization. Something like USGS and NOAA come under the part of mapping and charting necessary for military purposes and for understanding the scope and breadth of the Nation. Something like the Dept. of Agriculture, Education, Energy and so on are less viable on these grounds and less accountable as they have fewer functions directly tied to constitutional grants and could, and probably should, receive review on the necessary and proper functions, as well as if these are sound bodies to have or even wanted by the States and the people.

Healthcare under federal regulation? Is it necessary and proper? Is there an established hue and cry over many years for it from the States AND the people? Can it be done within the power grants? Can it be made fiscally sound? Have established precedents considered all aspects of such a power and the restrictions placed on them by the constitution and amendments?

To date I have no good answers that lead to ‘yes’ on these.

YMMV.

ajacksonian on October 26, 2009 at 9:27 AM