Political Crossfire Forums

[LostSoul3412]

bigstick61 wrote: Great posts, donnybrook. I agree with your analysis. The problem today are liberal judges, who deliberately misinterpret the Constitution, essentially re-writing it; they don't stop with the necessary and proper clause, as most of the Constitution is interpreeted in such a manner these days. Part of the problem is the politicization of the judiciary, which is in part due to the fact that both the President and Senate are subject to direct popular influence nowadays, and hence, try to choose judges that the "people" would like, which means that the judiciary really isn't independent anymore.

Couldn't agree more.

My recommendation: repeal the Seventeenth Amendment.

[bigstick61]

I too, believe that. However, it must be combined with a reform of the Electoral College which affirms its true purpose; until then, the President will still be subject to direct popular influence, as that corruption of the system these days is sch that it is tantamount to a direct popular vote.

[Jimmy Madison]

Quote: To say that the necessary and proper clause is "elastic" is erroneous.

Donnybrook

No, when it comes to some legislation and Congress' exercise of power it is quite accurate. James Madison and Thomas Jefferson most certainly construed it as "elastic" when Hamilton relied upon it to validate the creation of a national bank. The national bank, in both Madison and Jefferson understanding of the U.S. Constitution, could not remotely be justified under any power enumerated to Congress or under the necessary and proper clause. Madison's argument was the necessary and proper clause could not be relied upon by Congress to exercise a power expressly denied it at the Constituitonal Convention. The power of incorporation was discussed as a possible power for Congress to be granted and expressly repudiated. (See Ralph Ketcham's book, James Madison: A Biography; See also Madison's Notes on the Constitutional Convention). Jefferson and Madison absolutely understood the necessary and proper clause to be used in an "elastic" manner when relied upon for Congress to exercise a power denied to them.

However, there is another reason why it is called "elastic" and it is unrelated to "constitutionally expressed powers". The notes from the Constitutional Convention demonstrate the Framers understood there may be some areas where Congress would have to legislate in order to exercise in an area specifically granted to them under Article I, of the U.S. Constitution. The "elasticity" originated in the notion these unspecified, undefined, ambiguous, and vague areas, while not specifically granted to Congress to operate within, would not keep Congress from legislating in those areas if it was necessary and proper to carry into effect one of its enumerated powers. So it is quite accurate to call the necessary and proper clause "elastic".

Quote: The logical result is that Congress can only make laws in areas prescribed by the Constitution. This limits the power to create laws and destroys the "elasticity" of the necessary and proper clause.


This is neither an accurate or true statement whether considered in U.S. Supreme Court jurisprudence or the original meaning of the necessary and proper clause. Chief Justice John Marshall, in the historic case of McCulloch vs. Maryland, demonstrates Congress can make laws OUTSIDE of areas prescribed by the U.S. Constitution so long as the law is necessary and proper to carrying into effect some enumerated power. In fact, Marshall's rationale in this opinion, reverberated over the next 100 plus years and still relied upon by the contemporary U.S. Supreme Court, undermines your assertion Congress can only make laws in areas prescribed by the U.S. Constitution.

Furthermore, the original meaning of the "necessary and proper clause" (for a great read on this try law professor Randy Barnett's Article, the Original Meaning of the Necessary and Proper Clause; also Justice Scalia's remarks on the clause in numerous cases, lectures, and articles) was understood to allow Congress to legislate in areas not specifically enumerated for it to do so when it was necessary and proper to carry into effect one of its enumerated powers.

Quote: The result is a very expansive power to regulate many different kinds of activity that would otherwise be outside the purview of legislative authority. However, this is not an expansive power because the Supreme Court has limited this power when it is clearly against common sense.

Well first you admit it is a "very expansive power and then one line later deny it is a very expansive power. Which is it? The reality is, when it comes to the interstate commerce clause Congress' powers have dwarfed to proportions the Framers would not construe as legitimate. Wickard vs. Fillmore, which espoused the notorious (substantially affects test) has no basis in the original meaning and understanding of the words "to regulate among the states...interstate commerce". Yet, the substantially affects test has been relied upon to justify Congress power to regulate intrastate activities which were NEVER perceived by the Framers to be within Congress scope of powers under the interstate commerce clause. The substantially affects test has allowed Congress to regulate the criteria hotels/motels, which exist EXCLUSIVELY within the borders of one state, rely upon in accepting guests! Heart of Atlanta Motel (U.S. Supreme Court case) allowed federal legislation stating it could not deny guests on the basis of race relying upon the substantially affects test, despite the fact the hotel resided exclusively in one state, and one city. This is an exercise of power the Framers never conceived Congress exercising under the commerce clause.

In another controversial commerce clause case, Congress was baptized with the power to regulate purely local business production/manufacturing. Again, another power the Framers never imagined Congress possessing.

The fact is, Congress' powers have been expanded under a more modern understanding of the commerce clause power. However, this 20th century interpretation of the commerce clause has no basis in the original meaning and understanding of the commerce clause. Which is why these opinions are and will remain completely devoid of any analysis or attempt to focus upon how those words were understood and what they meant in 1787.

Quote: The problem of elasticity is, at best, over stated.

Well it is not in and of itself a problem quite simply because the Framers construed the necessary and proper clause as "elastic". The dilemma arises when it is relied upon to justify the exercise of Congressional power when it is not necessary or proper to do so to carry into execution one of its enumerated powers, which has occurred from time to time and the debate over the national bank reflects this fact.