Posted on 03/22/2012 4:01:41 AM PDT by JOHN W K
On 3/16/2012, while on Neil Cavoto’s show, Lis Wiehl indicated under our Constitution`s necessary and proper clause Congress has almost unlimited powers and the individual mandate would be held constitutional as being necessary and proper legislation.
What Lis Wiehl failed to tell Neil is that the clause in question grants no powers to Congress and may only be referred to in reference to a specific power granted to Congress. But let our founding fathers speak for themselves and explain the legislative intent of the following words: 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.
So, what did the framers and ratifiers intend by including these words in our Constitution?
In Federalist No. 33 Hamilton, in explaining the clause with relation to taxation says:
These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and culumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.
Likewise, MADISON states the following with regard to the necessary and proper clause:
But it gives no supplementary power. It only enables them to execute the delegated powers. If the delegation of their powers be safe, no possible inconvenience can arise from this clause. It is at most but explanatory. For when any power is given, its delegation necessarily involves authority to make laws to execute it. Were it possible to delineate on paper all those particular cases and circumstances in which legislation by the general legislature would be necessary, and leave to the states all the other powers, I imagine no gentleman would object to it. But this is not within the limits of human capacity. The particular powers which are found necessary to be given are therefore delegated generally, and particular and minute specification is left to the legislature.3 Elliots 438
Madison’s words are also in harmony with that of GEORGE NICHOLAS regarding the clause in question:
…he observed that, if it had been added at the end of every one of the enumerated powers, instead of being inserted at the end of all, it would be obvious to any one that it was no augmentation of power. If, for instance, at the end of the clause granting power to lay and collect taxes, it had been added that they should have power to make necessary and proper laws to lay and collect taxes, who could suspect it to be an addition of power? As it would grant no new power if inserted at the end of each clause, it could not when subjoined to the whole.____ 3 Elliots 443
And, in the North Carolina ratification debates, MACLAINE says the following:
Mr. Chairman,
…if we had all power before, and give away but a part, we still retain the rest. It is as plain a thing as possibly can be, that Congress can have no power but what we expressly give them. There is an express clause which, however disingenuously it has been perverted from its true meaning, clearly demonstrates that they are confined to those powers which are given them. This clause enables them 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 any department or officers thereof." This clause specifies that they shall make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws. I hope this will satisfy gentlemen.____ 4 Elliots 141
It should also be noted that Wilson, who participated in the drafting the Constitution, states the following during the Pennsylvania ratification debates:
The gentleman in opposition strongly insists that the general clause at the end of the eighth section gives to Congress a power of legislating generally; but I cannot conceive by what means he will render the words susceptible of that expansion. Can the words, "The Congress shall have power to make all laws which shall be necessary and proper to carry into execution the foregoing powers," be capable of giving them general legislative power? I hope that it is not meant to give to Congress merely an illusive show of authority, to deceive themselves or constituents any longer. On the contrary, I trust it is meant that they shall have the power of carrying into effect the laws which they shall make under the powers vested in them by this Constitution.___2 Elliots 448 And he goes on to state that the power in question “gives no more or other powers; nor does it, in any degree, go beyond the particular enumeration; for, when it is said that Congress shall have power to make all laws which shall be necessary and proper, those words are limited and denned by the following, "for carrying into execution the foregoing powers." It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution____ 2 Elliots 468
Which brings us to the following line of reasoning. If the Anti Federalist feared the necessary and proper clause would create a general and unlimited legislative power and were against such power being granted to Congress [which happens to be the case], and, the Federalists assured the Anti-Federalist that such an interpretation was not within the intended meaning of the clause in question, [which also happens to be the case], who can be pointed to, during the framing and ratifying of our Constitution as being an advocate of granting this alleged unlimited power to Congress?
The idea that our founding fathers granted a power to Congress to make all laws it may summarily think are necessary and proper, including Obamacare and its individual mandate, does not correspond to the mountain of evidence concerning the legislative intent of Article 1, Section, 8, cl. 18. I have searched the Federalist and Anti-Federalist papers, Madison’s’ Notes, Elliots Debates, and a number of other historical sources, and the preponderance of evidence shows the clause in question is limited to specifically enumerated powers granted and was never intended to be a general legislative power as now alleged by Lis Wiehl to allow Congress to impose Obamacare or its individual health insurance mandate.
I believe Thomas Jefferson had Lis Wiehl in mind when writing the following words:
"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.
Hopefully Neil Cavuto will give the same time to our founding fathers as he gave to Lis Wiehl, and allow them to voice their unequivocal legislative intent regarding the necessary and proper clause.
JWK
Health care by consent of the governed (Article 5) our amendment process --- tyranny by a majority vote in Congress or a Supreme Court's progressive majority vote
What makes you think the author of “Restoring the Lost Constitution” would ignore the Framers?
-—These disgusting tyrants and communists are really itching for unrest now.-—
If mandated purchases are added gradually, the public will acquiesce, sad to say. People are no longer trained to reason from first principles, so few people act on principle. Most people now act out of self-interest.
“Concentrated benefits and diffused costs,” as Milton Friedman used to say, is what currently drives legislation.
IOW, it can determine the facts of the case as if the lower courts did not exist. Unlike jury trials, Scotus is not limited to considering only that which the plaintiffs/defense bring up.
Wiehl is correct, although completely wrong when it comes to the intent and meaning the founders put into the Necessary and Proper Clause.
Go back well over 100 years and it’s easy to find multiple cases where Congress and/or the USSC has taken the position N&P basically removed all limitations upon the federal government allowing them to legislate whatever they wish on any given day.
I was more confident on the commence clause argument failing than Necessary and Proper not passing USSC muster.
Communism: Sometimes necessary and proper, right?
Gulags? Well, the Soviet Union found them necessary and proper, so who are we to judge?
Mass genocide of entire classes of Americans? Necessary and proper!
Wow. Just, wow.
I’m wondering when Lis argued a case in front of the SCOTUS?
She always has som BS progressive take on everything.
I guess we will all be shouting, “Come and get me... G-man”!
LLS
Thanks for noting that...something missing from my government education!
LLS
LLS
I think BOR is a closet dem also.
It's just a strange nose...look at the tip.
This is utter BS. Does the government have the right to tax at 100% rate all the money above $ 50,000 that an individual earns? Would the Supreme Court agree that this law is right if it passes?
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional
And Justice John Marshall also stated in Gibbons v. Ogden, 1824
State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress.
And Justice Barbour referenced the above case in New York v. Miln, 1837, and confirmed the State’s authority over the subject of health laws:
"Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass."
And finally, almost 100 years later the Supreme Court again confirmed Congress is without power to regulate medical practices in the States!
“Direct control of medical practice in the states is obviously beyond the power of Congress.” ___ Linder v. United States, 1925
JWK
Health care by consent of the governed (Article 5) our amendment process --- tyranny by a majority vote in Congress or a Supreme Court's progressive majority vote
I’ll check it out.
LLS
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