Free Republic
Browse · Search
Topics · Post Article

Skip to comments.

There is a difference ...
7-12-2011 | Rurudyne

Posted on 07/12/2011 7:03:29 PM PDT by Rurudyne

There is a difference between these two statements, one of which may be familiar to some forumites hereabout....

The power to tax must be adequate to address the Powers to appropriate.

Taxes can never accomplish the objects for which they were collected unless the power to appropriate is as broad as the power to tax.

The former may be considered a summation of the explanation of the language in A1:S8:C1 given by Madison and others to the several States before the ratification of the Constitution. This view holds that the terms "common Defence" or "general Welfare" are described by the subsequent enumeration of Powers. It was echoed, again before ratification, by no Less than Hamilton in Federalist #84 where he gave a very strong, absolute even, defense of the principal of enumerated powers.

The latter from Justice Roberts in 1936 and is his summation of the view advanced by Treasury Secretary Hamilton given after the ratification of the Constitution.

Still, it had been insisted before ratification by critics of the then proposed Constitution that the language could be abused to create a government of unlimited powers.

Please note: an argument that a particular abuse or misconstruction would arise IS NOT the same as arguing for the actual meaning of a thing. It does not, in fact, amount to advancing the views suggested but to opposing them. As such the Anti-Federalist WERE NOT advancing the idea that the language in A1:S8:C1 created a government with general power but, simply, that the language could be twisted to those ends.

Madison's response to the Anti-Federalist's assertion, given in Federalist #41 given before the Constitution was ratified, was:

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!

Please realize the particular significance of what Madison wrote when he said: "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." ...

... because language that was both direct and forceful was not only known to the Founders and the Framers but it was also USED by them (both in the DoI to describe the nature of the Arbitrary government against which the Colonies were rebelling and in specific and enumerated exceptions to the doctrine or enumerated powers given to cover places not under the Jurisdiction of any State in A1:S8 and A4:S3). In particular the language "in all cases whatsoever" was used to describe the absolute power of Congress over what would become Washington DC or the Arbitrary government that the Founders' feared would be imposed from London in the DoI.

So look closely at the two statements with which I began this post: one recognizes the need for taxation to meet the needs of lawful appropriation WHILE THE OTHER assumes any ability to spend if there is ever a tax levied to support the spending.

These mark out the difference between a government of limited and special Powers and one with general powers in all cases whatsoever.

TOPICS: Constitution/Conservatism; Government; Politics/Elections; Your Opinion/Questions
KEYWORDS: constitution; generalwelfare; hamilton; madison
I would love to get comments on this suggestion — especially attempts at refutation. Certainly friendly criticism of style and substance, or suggestions for further evidences, would be welcome too
1 posted on 07/12/2011 7:03:32 PM PDT by Rurudyne
[ Post Reply | Private Reply | View Replies]

To: Rurudyne

Please accept this in a positive way.

The thesis seems muddled — which 2 statements (bullets maybe?) and how do they stand against each other?

You have all the data but it seems slapped together rather than constructed.

May I suggest you go back and outline the document, then post it so that it is clear what the comparison/contrasting arguments are.

The underlying premise is great — the delivery might need burnishing.

2 posted on 07/12/2011 7:10:58 PM PDT by freedumb2003 (Herman Cain 2012)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Rurudyne
The first statement derives from the doctrine of "implied powers"-- that is, if the Constitution charges a branch of government with a given responsibility, then that implies that the government has the power to pass legislation necessary to fulfill that responsibility.

EG, it makes no sense to say the federal government is responsible for a post office, but then to deny the government the authority to raise revenues to fund that post office.

The Implied Powers doctrine has long been accepted as legitimate, with the caveat that it falls within the doctrine of enumerated powers which set a limit on federal adventurism.

The second statement, frankly, is gobbledygook.

3 posted on 07/12/2011 7:28:21 PM PDT by hinckley buzzard
[ Post Reply | Private Reply | To 1 | View Replies]

To: hinckley buzzard
Heh ... the second statement is, in fact, a direct quote from 1936's Butler decision ( ) which is, to be fair, a massive collection of gobbledygook, rhetorical abuses, false leading statements, mischaracterizations and whatnot rendered — get this — to try to protect the assertion I quoted even though every aspect of the actual argument presented in the opinion invalidates it.

Want to know how loopy it is (I mean, besides going and reading reading it ... which may qualify as a form of self abuse)?

Try this on for size: in order to protect the assertion that there is power to appropriate on account of the appearance of the words "general Welfare" in A1:S8:C1 while ALSO disallowing that there is a claim to regulate on that same basis Justice Roberts cuts this distinction: A1:S8:C1 involves raising money to pay for stuff but (apparently) not to pay for regulation enforcement.

Thus a ruling that goes out of its way to assert that second statement (it was not even a point of contention) actually includes this language: "From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden."
4 posted on 07/12/2011 9:16:54 PM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 3 | View Replies]

To: freedumb2003
Thanks for the feedback.

This offering is an attempt at brevity compared to my usual presentations which is why comments on presentation are much appreciated.

Usually I spend more time on the idea of the original right of those who made the Constitution a Law and what that means for the meaning of same. Simply, the legislatures of the several States were presented with a consistent view by those arguing for the meaning of the text (including Hamilton) and this has since been misrepresented as merely as Madison's view. This advice given to their consent is the only thing that they could have agreed to and therefore the only thing that could be the Law.

Yet after ratification, as if he were Sovereign to make Law, we find Hamilton contradicting even his own previous statements. People act as if the fact that it is “Hamilton” is so very important that it negates the significance of WHEN he spoke. Timeliness is important and I often challenge people which Hamilton is right: the one offering advice to those with the right of consent or the Treasury Secretary spouting off after ratification was a done deal?

I've even likened the actual ratification of the Constitution to that moment when, in a wedding, the assembled host are asked to “speak now or forever hold their peace.” As Treasury Secretary Hamilton resembles that ill mannered wedding guest who bad mouths the bride after the vows have been taken (when he should just have kept his trap shut).

5 posted on 07/13/2011 8:47:06 AM PDT by Rurudyne (Standup Philosopher)
[ Post Reply | Private Reply | To 2 | View Replies]

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794 is powered by software copyright 2000-2008 John Robinson