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The Same Subject Continued: Concerning the General Power of Taxation
From the Daily Advertiser.
Thursday, January 3, 1788

Author: Alexander Hamilton

To the People of the State of New York:

THE residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clause. The last clause of the eighth section of the first article of the plan under consideration authorizes the national legislature “to make all laws which shall be NECESSARY and PROPER for carrying into execution THE POWERS by that Constitution vested in the government of the United States, or in any department or officer thereof”; and the second clause of the sixth article declares, “that the Constitution and the laws of the United States made IN PURSUANCE THEREOF, and the treaties made by their authority shall be the SUPREME LAW of the land, any thing in the constitution or laws of any State to the contrary notwithstanding.”

These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.

What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the propermeans of executing such a power, but NECESSARY and PROPER laws?

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.

But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimatb authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.

But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretense of an interference with its revenues, it should undertake to abrogate a landtax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths.

But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.

Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State, (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union.

PUBLIUS.

Guest Essayist: Charles K. Rowley, Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

In this 1830 response to Edward Everett of Massachusetts James Madison maintains that a state does not possess the authority to strike down as unconstitutional an act of the federal government.  If you find the essay long-winded, you are correct in this assessment.  It is long-winded because James Madison was a hypocrite on the issue of nullification, supporting the notion when it suited him, and rejecting it when it did not. You may learn from this episode an important lesson about human nature.  The greatest of founding fathers does not always make a great secretary of state, a great president, or a great elder-statesman.  James Madison (and Thomas Jefferson) were no exceptions to this insight. Read more

Guest Essayist: Nathaniel Stewart, Attorney

Article VI

1: All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

 

Article VI concerns the debts of the United States, the supremacy of the Constitution and federal law, and the sworn obligation of office holders to uphold the Constitution.

America’s War for Independence was an expensive war – and most of it had been financed.  Tens of millions of dollars had been borrowed from foreign governments and wealthy financiers – some of them even English – who were understandably concerned that their debtors might try to use the country’s new-found independence to avoid repaying their loans.  Indeed, the 1783 Treaty of Paris, which brokered the peace between Britain and the United States, expressly provided that lawfully-contracted debts were to be paid to creditors on either side.

This concern resurfaced as the fledgling country traded in the relatively weak Articles of Confederation for a more authoritative Constitution.  Article VI, clause one, of the new document reassured unpaid creditors that “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The ratification of the new Constitution then could not be used to shirk paying those who were rightfully owed under the old system.  It was well understood at the time that good credit must be established and maintained if the country would have any hope of survival or longevity.

The second clause, commonly known as the “Supremacy Clause,” makes clear that the Constitution is the binding legal authority on which the country was founded:  “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This may seem axiomatic to us today, but the issue was far from settled and “the source of much virulent invective and petulant declamation against the proposed Constitution,” (Federalist No. 33) for it was widely feared that the formation of the federal government would intrude upon the rights and liberties enjoyed by the states and the people.

Richard Henry Lee, a prominent anti-federalist, expressed this fear in the alliterative “Federal Farmer IV” when he warned, “It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New Hampshire, Massachusetts, &c., but by the people of the United States; and wherever this constitution, or any part of it, shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and wherever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away.”

Both Alexander Hamilton and James Madison took up the debate and defended the clause.  Hamilton first explained, “If individuals enter into a state of society the laws of that society must be the supreme regulator of their conduct.  If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted [sic] to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed.  It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for Political Power And Supremacy”  (Federalist No. 33).  But Hamilton, perhaps attempting to assuage the fears of men like Richard Henry Lee, insisted that the “acts of the larger society which are not pursuant to its constitutional powers” must then be held “invasions of the residuary authorities of the smaller societies” and will not become the supreme law of the land.  “These,” Hamilton argued, “will be merely acts of usurpation, and will deserve to be treated as such.”  Thus, although a supreme law was required for any proper government to function, the federal government would be limited in its scope to those laws pursuant to the Constitution.

James Madison’s Federalist No. 44 echoed Hamilton’s argument and contended that any Constitution without a Supremacy Clause “would have been evidently and radically defective.”  Madison warned in Federalist No. 44 that, were the state constitutions to exert supremacy over the federal Constitution, “the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.”

It didn’t take long for the question of legal supremacy to find its way to the Supreme Court.  Coincidentally, both the Supremacy Clause and the issue of pre-Treaty debt were taken up in the same case in 1796.  In 1779, during the War for Independence, Virginia had passed a law whereby all property within the state belonging to any British subject or which did belong to any British subject at the time of forfeiture was deemed to be the property of Virginia.  Not only did the statute confiscate British-owned property, it arguably nullified private debts owed by Virginians to British subjects.  In Ware v. Hylton, a British creditor sued an American debtor to recoup the money owed under a pre-war bond.  Virginia’s statute seemed to prevent the creditor from collecting his debt, and the Court was asked to decide: did Virginia’s law or the Treaty of Paris control the collection of the debt?

Making his only appearance as a lawyer before the Supreme Court, John Marshall argued brilliantly on behalf of the American debtor.  Justice Iredell, in the controlling opinion of the Court, ruled against the future Chief Justice:  “Under this constitution, therefore, so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also, by the vigor of its own authority, to be executed in fact. It would not otherwise be the supreme law, in the new sense provided for, and it was so before, in a moral sense.”  The Treaty of Paris thus superseded Virginia’s contrary law, and the Court declined to give effect to the state statute.

Later, Chief Justice Marshall would pen the landmark decision in McCulloch v. Maryland (1819), ruling that Maryland’s tax on the Second Bank of the United States ran afoul of the Constitution.  Nullifying the state’s tax on the federal government, Marshall observed:  “If any one proposition could command the universal assent of mankind, we might expect it would be this— that the government of the Union, though limited in its power, is supreme within its sphere of action.”

A barrage of new federal laws from Capitol Hill and a long line of Supremacy Clause cases marched across the legal landscape in the twentieth century, leaving a blotted trail of nullified state statutes.  Today, “A state statute is void to the extent that it actually conflicts with a valid Federal statute,” (Edgar v. Mite Corporation (1982)), and such a conflict exists wherever compliance with both federal and state law is impossible; or where the state law stands as an obstacle to accomplishing the full purposes and objectives of Congress.

Thus, for example, the Supreme Court held in Raich v. Gonzales (2005) that California’s law permitting doctor-prescribed medical marijuana would frustrate Congress’s efforts to regulate the interstate marijuana market under the federal Controlled Substances Act.  And, as Justice Stevens’ majority opinion casually reminds us, “The Supremacy Clause unambiguously proves that if there is any conflict between federal and state law, federal law shall prevail,” because, as the Court had previously opined, “‘no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress.’” (quoting Wickard v. Filburn (1942)).  We might now wonder whether – in the Court’s view – there remain any regulatory “acts of the larger society which are not “pursuant to its constitutional powers” or which might still invade “the residuary authorities of the smaller societies.”

The third clause of Article VI establishes two important and related principles.  First, its “Oath Clause” requires that “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . . . .” Once again, the Constitution is supreme, and a conscious effort was made for it to be supported and upheld not only by federal officers and judges, but by state officials as well.  As Hamilton explained in Federalist No. 27, the “Oath Clause” would help ensure that “the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and it will be rendered auxiliary to the enforcement of its laws.”

Second, the “No Religious Test” clause guarantees that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In the founding era, much of Europe and many of the new American states used religious tests to protect their preferred churches and religions.  In England, the Test Act of 1672 required all public officers to swear a conspicuously anti-Catholic oath declaring disbelief in “any transubstantiation in the sacrament of the Lord’s Supper.”  In 1789, Delaware, Maryland, Massachusetts, North Carolina, and Pennsylvania all had constitutions requiring that their public officials to swear belief in tenets of Christianity.  The “No Religious Test” clause prevented such requirements for holding federal office, but left any such qualifications for state officers untouched.

Perhaps surprising to us today, this clause received a fair amount of debate and resistance from anti-federalists during ratification.  In Massachusetts, for example, one “principal objection” to the Constitution was its lack of a religious test – “rulers ought to believe in God or Christ,” it was argued.  Federalist Oliver Ellsworth defended the constitutional ban on religious tests, believing them to be “utterly ineffectual,” and arguing that “If we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cob-web barriers as test-laws are.”  Ellsworth’s view won out, of course – although it remains a rather open question whether we, the people who appoint our public officers, have taken much care to choose those predicted “sincere friends to religion.”

Nathaniel Stewart is an attorney in Washington, D.C.

Howdy from Boston! Juliette and I continued our walk down the red lined path of the Freedom Trail today. (Check out today’s video either through our Facebook link to YouTube or the Video Box on the top of our website.) Boston is an incredibly beautiful city and the history is so well preserved! The city and its people have exceeded all of my expectations and it has been an absolute joy to visit.

We were actually able to walk into the Old Granary Burial Ground today. We saw the graves of Paul Revere, John Hancock, Samuel Adams and the men who were killed in the Boston Massacre. It was truly mesmerizing to be able to see the resting places of such heroes! It was also insightful to see how humbly they were buried. Paul Revere’s initial headstone was just a tiny headstone inscribed, “REVERE’S TOMB.” Everywhere we walked there was a statue of an American hero. If only every city could revere our Revolutionary history in such a reverent way.

Juliette and I were in awe as we gazed upon the beautiful Old State House. It was in this house that the Stamp Act was debated and it was from the East Balcony where the Declaration of Independence was first read to the people. Can you imagine such a moment?

FYI, I handed out Constituting America business cards and bracelets to fellow tourists along the way! Constituting America in Boston! (We are going to have bumper stickers soon so if you are interested in one, or even extras to pass out, e mail us!)

In regard to Alexander Hamilton’s essay today, I feel like I should say, “Same Subject Continued,” It is just remarkable to me how often Publius refers to the fact that the states would continue to have their rights, the federal government would remain small, and that the American people would be vigilant if the government ever started to cross its bounds. In today’s reading, Federalist Paper No. 33, Alexander Hamilton states:

“If the federal government should overpass the just bounds of its authority, and make a tyrannical use of its powers; the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution, as the exigency may suggest and prudence justify.”

Need I write more? Spread the word of the pertinent relevancy of our United States Constitution and Federalist Papers! It a “measure to redress the injury done to the constitution.”

God Bless,

Janine Turner

Friday, June 11th, 2010

In Federalist No. 33, Hamilton defends the Necessary and Proper clause, found in Article I, Section 8 of the United States Constitution:

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.

Hamilton’s main defense of the clause, as Professor Knipprath points out, is to say that the clause merely restates a power that exists with or without the clause.

Driven by curiosity as to why the framers included the controversial words, if the power existed with or without them, I did some research.

I found the following information in the excellent resource book, The Heritage Guide to the Constitution, Edwin Meese III Chairman of the Editorial Advisory Board:

The necessary and proper clause served two purposes in the framers’ minds:

1. to allow the Congress to do what was necessary to organize the government (create executive departments, set the number of Supreme Court Justices, divide out judicial power among courts).

2. to help carry out Congress’s enumerated powers contained in Article I, Section 8.

In his essay on pages 146-150, in The Heritage Guide to the Constitution, David Engdahl tells us the opponents of the Constitution nicknamed this clause the “sweeping clause,” or the “general clause,” and Brutus, their spokesperson, said it “leaves the national legislature at liberty, to do everything, which in their judgment is best.”

Engdahl tells us that James Wilson who authored the clause, explained at Pennsylvania’s ratification convention that he saw the clause as “limited,” and “for carrying into execution the foregoing powers.”  Wilson stated that the clause authorizes what is “necessary to render effectual the particular powers that are granted.” In other words, the clause authorizes no more than the powers already enumerated, and is to assist in fully effectuating those powers.

The Necessary and Proper Clause has become the proverbial camel’s nose under the tent, much as the anti-federalists feared.  Congress is able to justify certain laws constitutionally by enacting legislation that is within the scope of its enumerated powers, but the same legislation may also affect areas outside of the enumerated powers, adding to the “federal creep,” unintended by the founders and predicted by the anti-federalists.  As Professor Knipprath points out, the Necessary and Proper Clause is aptly nicknamed the “elastic clause.”

Hamilton’s answer to this problem is clear,

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”

This is why it is so important that “We The People” are educated, and understand the “just bounds of authority.” If we don’t know the Constitution, how will we know when it is injured?

Thank you to all of you who are joining us on this educational journey! Your energy and enthusiasm is inspiring, and we are learning from every comment on the blog!

Please continue to forward our web address, http://www.constituting.staging.wpengine.com to your friends, and encourage them to join us.

If you are silently reading along, please add your voice to our blog!!  90 in 90: = 180 is not complete, without YOUR thoughts!!

Have a great weekend!

God Bless,

Cathy Gillespie

Friday, June 11th, 2010

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

After the appearance in the preceding essay of Alexander Hamilton, Esquire, Federalist 33 sees the return of Hamilton, the rhetorical swordsman, slashing at his opponents and parrying their contentions. The target of his invective is the assertion that, though the national government’s power to tax may not be exclusive and can be exercised by the states concurrently with Congress, the necessary and proper clause allows Congress to expand the reach of its substantive powers beyond what is enumerated. Further, the supremacy clause enables Congress to override otherwise valid state laws that are in conflict with such overreaching federal law. In short, Congress might pass laws prohibiting the states to tax in various ways, as a means to protect Congress’s sources of revenue.

The heat of Hamilton’s response is a measure of the significance, then and now, of the bigger question. This is no longer about the power to tax. Rather, this implicates the breadth of the federal government’s power to act and, therefore, the very nature of the federal system and the division of sovereignty created under the Constitution.

This is not the last time that Publius addresses these topics. Madison has his turn in Federalist No. 44. Nor is The Federalist the only forum. The scope of Congress’s discretion to carry into effect its enumerated powers comes up in extended debate as early as the incorporation by the Confederation Congress of Robert Morris’s Bank of North America in 1781. It occurs again with great vigor in the debates in Congress and the Cabinet in 1791 over the chartering of the Bank of the United States. It occurs once more, in the Supreme Court in 1819, in McCulloch v. Maryland. It continues to this day. Not for nothing has this clause been termed the “elastic clause.”

In these debates the course of argument is always the same. As Hamilton points out, the necessary and proper clause merely restates a power that Congress already has by implication. Even if that clause were omitted, Congress could, by the very existence of a grant of substantive power, adopt any law needed to carry out the object of that enumerated power: “What is a power, but the ability or power of doing a thing? What is the ability to do a thing, but the power of employing the means [italics in original] necessary to its execution?…What are the proper means of executing such a power, but necessary and proper laws?” Congress may have only enumerated powers to which it must point whenever it acts. But within those enumerated powers, Congress has plenary authority, including choosing the proper means.

Once a power to adopt any means necessary and proper to an objective is conceded, it becomes necessary to limit the power. Otherwise, an unlimited power to adopt the means needed to achieve delegated and limited ends effectively creates unlimited power to legislate. These “means” can always be connected to some enumerated constitutional objective through linked justifications that, as Jefferson sneered, resemble the rhyme “This Is the House That Jack Built.”

Hamilton avers that only laws that are proper means to the constitutional objective are permitted. What is “proper” must be judged by the nature of the power to which it is directed. Thus, the federal government could not control intestacy laws because those would not be proper to the “national” nature of any federal power under the Constitution. Yet the Supreme Court recently upheld, under that same clause, a federal law that provides for the civil commitment of certain persons deemed dangerous even after they have completed their criminal sentences. While the criminal law under which these people were sentenced had a (bare) connection to the federal commerce power, it is very difficult to understand how the civil commitment law has anything but a very attenuated connection to a federal power. The connection (as Congress makes clear) is to “public safety,” which is not a delegated federal power, but, rather, a state power.

Moreover, the recent health care law imposes an “individual mandate” to purchase health insurance because that is necessary and proper to regulate the interstate health insurance market. The necessary and proper clause has long stretched, one might say, the meaning of the term “elastic.” Hamilton declares that the usual remedy for a violation must be the citizenry’s judgment. Unfortunately, when Congress expands its powers beyond previous bounds by pandering to some item on an interest group’s wish list, there is usually a collective yawn from the electorate. Will reaction to the foregoing examples be different?

Hamilton also analyzes the supremacy clause, which summarizes the fundamental principle that, within its assigned powers, Congress has plenary power that prevails over any conflicting state act. That supremacy principle extends to federal statutes and treaties, as well as to the Constitution itself. By approving the Constitution, the states accepted that its provisions superseded conflicting ones in their constitutions and laws.

Indeed, the supremacy clause principle and the specific listing of Congressional powers was the more benign proposal in Philadelphia. Madison, Hamilton, Washington, and other “large-state” nationalists supported the Virginia Plan that would have given Congress both a broader and more direct veto over state laws and the power to legislate “in all cases to which the Separate States are incompetent; or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” One shudders to imagine what policies such forthright grants would produce in contemporary Congresses when even the fig leaf of limited and delegated powers is removed. On the other hand, a skeptic might respond that, by constitutional subterfuge abetted by a mostly passive Supreme Court, Congress has already arrogated to itself virtually the same breadth of power.

Hamilton argues that only federal laws that themselves are constitutional can be the supreme law of the land. There is nothing to fear from that clause, as long as Congress does not exceed its powers under the other clauses. As discussed above, in that last point lies the rub.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

Friday, June 11th, 2010

In Federalist No. 44 Madison completes his list of and defense of powers delegated to the federal government.  In this essay he discusses restrictions on the authority of the States in Article I, Section 10 of the Constitution.  Most of these restrictions make sense, even today, such as the restriction on States entering into treaties, coining money, producing paper money, granting any title of nobility etc.

In Article 1, Section 10, States are also prohibited from passing bills of attainder and ex post facto laws.  I wanted to know more about this, and did a little research in the  Heritage Guide to the Constitution .  On page 170 essayist David Forte writes, “The framers regarded bills of attainder and ex post facto laws as so offensive to liberty that they prohibited their use by both Congress (Article 1, Section 9, Clause 3) and the states.”  Essayist Daniel Troy points out “these are the only two individual liberties that the original Constitution protects from both state and federal intrusion.”

It quickly came back to me that ex post facto laws are retroactive laws, punishing an act that was lawful when it took place.

I had to look up bill of attainder, though.  Webster defines bill of attainder (also known as an act or writ of attainder) as “an act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.”

Madison states, “Bills of attainder, ex-post-facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation.”  David Forte, in the Heritage Guide, points out that some States had enacted these types of laws after the Revolution, and our founding fathers wanted to  eliminate these tyrannical practices many had suffered under, under the crown.

It is interesting to note that the federal government’s powers are specifically enumerated in the Constitution, while the States’ powers are not enumerated.  By listing only what the States are prohibited from doing, the groundwork is laid for what eventually became the 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Madison spends a good deal of the second half of his essay defending the “necessary and proper clause.” We last heard about the “necessary and proper,” clause in Federalist No. 33, The Same Subject Continued: Concerning the General Power of Taxation, by Alexander Hamilton.

In both Federalist 33, and Federalist 44, Publius addresses what is to be done if the federal government oversteps its bounds, as many opponents of the necessary and proper clause feared.

Hamilton stated in Federalist No. 33:

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”

And Madison in Federalist No. 44:

“If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning……in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers.”

A recurring theme of the Federalist Papers is that the responsibility to uphold the Constitution rests with the people.

To uphold the Constitution, we must first know it, and understand it.

I am grateful for all I am learning each day.  Some days I learn from an enlightening quote that pops off the page.  Other days, I delve deeper into a topic I don’t quite understand or want to learn more about.  Every day, I learn from all of your blog comments and through our wise and talented Guest Constitutional Scholar Bloggers. Thank you to Pofessor Knipprath for being one of our most frequent contributors!  We love your essays!

Thank you for joining us on this journey, as we strive to continue learning, so we can live up to the phrase our founders bestowed upon our collective intellect, “the genius of the people.”

Good night and God Bless!

Cathy Gillespie

Monday, June 28th, 2010

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” James Madison, Federalist No. 45

In Federalist 45, Publius once again assures us of the limited, but necessary nature of the federal government’s powers.  In previous essays Madison and Hamilton have assured readers that if, in the unlikely event, the federal government oversteps its bounds, the states will sound the alarm, and the people will rise up to defend the Constitution.

Of course, the picture painted by Madison of the few and defined powers of the federal government  in Federalist 45 is radically different than our reality today.  One is tempted to ask, how did these wise men get their prediction of the future so wrong?

Assuming the structure of government designed by our founders was sound and sufficient to preserve individual liberty, a more appropriate question might be, how did our country deviate from the roadmap they laid out for us?

The Constitution, as designed by our founding fathers, creates a system of government designed  to preserve the peoples’ individual liberty. Our liberty hangs in a delicate balance of power between the federal government and the states.

As with any delicate structure or piece of machinery, when you move a part that affects the balance, the structure begins to fall, or the machine ceases to function in the way in which it was intended.

One of the key points Madison makes in his assurance that the federal government will not encroach upon state governments is the provision in the Constitution that “The Senate will be elected absolutely and exclusively by the State legislatures….Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.”

The 17th Amendment, which took the appointment of U.S. Senators out of the state legislatures’ hands, and provided for the direct election of U.S. Senators by the people, fundamentally changed the structure of government the founders had designed.  An important check on the federal government’s power was removed.

The other factor Publius did not foresee was the phenomenon of federal funding offered to states with strings attached. As more burdens are placed on states by the federal government through unfunded federal mandates, the enticement of federal dollars with strings attached grows.  When states accept this type of funding, the federal government’s reach into the states’ purview increases.

Federalist 45 reminds us of what our country could look like, had the checks and balances laid out by the founders not been slowly eroded.  For many years, “We the people,” have not been paying attention.

As we go forward, we should remember Hamilton’s words in Federalist No. 33:

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”

What a gift these words of Hamilton, Madison and John Jay are, patiently explaining the United States Constitution, and our founders’ vision for our country!   We cannot understand what we are losing, if we don’t understand what we had.

We cannot know if the Constitution is “injured,” if we do not know what is in the Constitution.  Thank you Professor Knipprath, and all the blogger commenters, for augmenting our understanding!

As Janine likes to say, “Your vote is your voice.” In these federalist papers we are finding our voice, and in November, our voice will be heard!

Good night and God Bless,

Cathy Gillespie

Tuesday, June 29th, 2010

 

It is essays such as Federalist 48 that validate Thomas Jefferson’s famous quote about the Federalist Papers, “the best commentary on the principles of government … ever written.”

The checks and balances of our government, so beautifully constructed by the founders, are based on this axiom from Federalist No. 48:

“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

Our founding fathers knew that separating powers into three branches of government was not enough to ensure the liberty of the people.  Without “checks,” any one branch could become tyrannical.

It is ironic that the best way to accomplish separation of powers is to not completely separate the powers, but for the three branches to “share” some aspects of the powers, in order to wield checks on each other.

It is also ironic that the legislative branch, the branch closest to the people (at least the U.S. House), is also the branch most likely to overstep its bounds.  The quotes in Federalist No. 48 about the legislative branch could easily have been written this year, as in 1878.

“The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”

“The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.”

“Where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.”

“One hundred and seventy-three despots would surely be as oppressive as one.”

Madison points out the many reasons why legislative branches are prone to usurpations of power:

1. “Legislative power is exercised by an assembly,” …… with an intrepid confidence in its own strength.”

2. There are enough members of the legislative body to “feel all the passions which actuate a multitude,” yet few enough to actually act on those passions.

3. “Its constitutional powers being at once more extensive, and less susceptible of precise limits,” allow it to mask with greater ease “under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.”  (The “Commerce Clause,” and the “Necessary and Proper Clause,” are perfect examples in our federal legislative branch of the “more extensive, and less susceptible of precise limits,” of which Madison speaks)

4. The legislative department has the power to tax (“access to the pockets of the people”).

5. The legislative branch has some influence over the wages of those who fill the federal government jobs (“pecuniary rewards”), and controls the budgets of the departments and agencies.

The founders knew the predisposition of the legislative body, and thus built in checks on legislative power. One of the most important checks they devised was the appointment of U.S. Senators by the State Legislatures.  The removal of that “check” by the ratification of the 17th Amendment caused a disturbance in the balance of power, and allowed the Congress to encroach past its enumerated powers further than the founders ever dreamed possible.

In a blog comment on Federalist 46 today, Andrew points out an important truth:

“A key point most posters missed and that was not really addressed in the essay is that it still was voters who have approved of the expansion of the federal government. Voters elected congressmen and presidents who supported the expansion of the federal government. Most are reelected, and there is rarely any movement to undo expansions because those expansions are popular with the majority.”

Andrew is correct.  “We The People” allowed the checks and balances to break down. It is “We The People,” who are charged time and again with sounding the alarm and protecting the Constitution.

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” Federalist No. 33 (Hamilton)

In order to protect the Constitution, and keep government in check, we must first know the Constitution and understand the principles upon which it was based.

Thank you all for a wonderful week of blog comments, and a big thank you to Professor Baker for his enlightening essay!  Federalist 48 is one of my favorite papers yet.

Looking forward to Federalist 49!

Wishing you all a wonderful July 4 weekend as we celebrate the birth our country!

Good night and God Bless,

Cathy Gillespie

Saturday, July 3rd, 2010

 

Greetings from Mt. Vernon, Virginia!  Having spent many years working for a member of the U.S. House of Representatives, Congressman Joe Barton of Texas, I am thrilled to see several Federalist Papers devoted to the subject of the U.S. House.

Unfortunately, Congress as an institution and the people who serve there are suffering from a negative public perception.  As with any group of people, there are a few who deserve the public’s disdain.  And there are others who may not be re-elected this November because they have not carried out their constituents’ will.  But based on my experience of working first hand with many of these men and women, I have developed the highest respect for the institution of the U.S. House, and for most of  those elected from their congressional districts to serve, Republicans and Democrats.

The founders designed the U.S. House of Representatives to be close to the people:

As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured.

Publius argues that an election every two years is frequent enough to maintain the people’s liberty:

“I conceive it to be a very substantial proof,that the liberties of the people can be in no danger from BIENNIAL elections.”

This is true, as long as the people uphold their duty articulated in Federalist No. 33, to “take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”

Elections every two years keep members of Congress close to their constituents.  There are extended  breaks from votes during January, February, April, July, August, September, and Congress usually breaks for good anywhere from mid-October in election years to mid-November or mid-December in the off years.  During these breaks, most Members of Congress go back to their districts, hold town meetings and other forums, and work hard to meet with their constituents and listen to them.

We have all seen the video footage from town meetings of Congressmen or women who appear to be disengaged, uniformed, hostile to their constituents, or out of touch, especially during the health care debate.    From my experience, these members of Congress are the exception, rather than the rule.

Most members of the U.S. House, of both parties, are well informed, hard working individuals who deeply love their country and sacrifice a great deal to serve the people of their congressional district. Most keep their families in their congressional district, and are in Washington only when they have to be, flying in to vote Tuesday through Thursday, and back home Thursday evenings to spend Friday through Monday working in their congressional district.

Most members of Congress are very accessible to their constituents. Any citizen may “walk the halls,” of Congress, and stop in at their U.S. Representative’s office, or any U.S. Representative’s office, often getting to at least say hello to the member of Congress, even without an appointment, if they are willing to wait.  And if they request a meeting with enough lead time, most people who want to have a sit down meeting with their member of Congress are usually able to get one scheduled.  Janine, Juliette and I walked the halls of Congress recently, and met with Congressman Scott Garrett, Chairman of the Congressional Constitution Caucus, and Congresswomen Blackburn and Bachmann.  We even met with Senator Scott Brown on the Senate side!  We witnessed all taking the time to say hello to visiting constituents while we were there.

Members of Congress also maintain offices and staffs in their congressional district, whose sole purpose is to serve the constituents, untangling them from governmental red tape, facilitating military academy appointments, and participating with citizens in the community on local projects.

It is understandable that people are frustrated and angry when Congress passes a bill so large no one can read it, with provisions that go against the U.S. Constitution and our founding principles of limited government and free enterprise.  But that is where elections every two years come into play.  It is the people’s responsibility to make their views known, and the most effective way to do that, is on election day.

In 1994, and in 2006, the people’s voice was heard. Despite gerrymandering (which I agree with Jon and Professor Rowley, is a terrible modern day development) control of the U.S. House shifted, because the people were unhappy.

As we have said many times on these pages before, knowledge is power. Before you judge your member of Congress, get to know him or her, or at least try! Find out their voting record, their attendance record. Do they hold town meetings? If so, attend! Ask a question. Send an email. Write a letter. Request a meeting.  Sit down with their congressional district staff. You may be surprised to find out how hard your member of Congress is actually working for you, or you may have your worst suspicions confirmed, and decide a change is needed.

“The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.”

Let’s use that powerful tool granted to us by the Constitution!

Thank you to all of you for your continued participation, and your insightful comments.

Good night and God Bless,

Cathy Gillespie

Thursday, July 8th, 2010