Is the Necessary and Proper Clause either Necessary or Proper? |
I
want to begin by saying that I believe the Preamble to the Declaration of
Independence and the Constitution, with the Bill of Rights included, comprise
the most enlightened, ennobling, and beneficial documents ever penned by the
hand of man. I also believe that the Constitution afforded the United States the
greatest level of freedom and opportunity ever experienced by humanity. This
freedom and opportunity in turn released the talents and abilities of the
American people to build the greatest nation ever to exist, rising from thirteen
states exhausted and impoverished from years of war into a prosperous and
powerful nation which by the end of the twentieth century stood upon the world
stage as the uncontested sole superpower.
Simplicity
is the essence of genius while over-simplification is the essence of fraud. In a
picture perfect example of the truism “The victors write history” what we have
been taught concerning the writing and ratification of the Constitution is
actually a politically slanted version of the truth. This highly patrician
account is also an example of over-simplification.
We
are taught that the Articles of Confederation were an abject failure because
they were too weak. Shay’s Rebellion scared the venerable leaders who had led
and won the Revolution. George Washington and Co. came back from retirement to
once again save the nation writing an “almost” divinely inspired document. There
was only token dissent to the immediate acceptance of this tablet from the mount
by some shadowy unknown people collectively called the “Anti-Federalists.”
However after some well-written articles by future leaders called the
Federalists, We the People overwhelmingly voted for ratification and the
Constitution immediately ushered in the blessings of liberty and opportunity for
all rescuing the United States from anarchy and stagnation. Amen.
This
is a thumb-nail sketch of what our thumb-nail sketch type history education once
delivered as gospel in American public schools. Today, those lucky enough to
live in a school district that still includes American History are instead
treated to the progressive’s litany of American crimes and debauchery. However,
as our constitutionally limited government exceeds all previous limits, is
either of these offerings good enough? Americans from all walks of life watch in
stunned disbelief as the Federal Government on steroids swallows the economy,
health care, the financial system, major manufacturing, the insurance industry,
and anything else that doesn’t move fast enough to get out of the way. Can the
States themselves be far behind?
How
did this come about? How did a government born in the shackles provided by a
written constitution designed to limit its power swell into the all-powerful
OZ?
Quite
simply it was through the deception of the Progressives evolving our
Constitution from a rock-solid framework limited to what it actually said to a
living document that is constantly being re-interpreted. Thus without amendment,
without debate, without a vote our leaders have nudged us from land of liberty
to the centrally-planned surveillance state which today sends the IRS after
their enemies, leaves our borders open, our opportunities closed, and our sons
and daughters manning hundreds of garrisons around the world.
One
of the key tools in this century long quest to transform America has been the
use of the so-called elastic clauses in the Constitution. One major clause used
to accomplish this is found in Article I, Section 8, Clause 18 which states,
“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.”
There
are several ways to look at this clause and its meaning. First we need to look
at what is called “Original Intent,” or what those who wrote the clause meant.
Then we will look at what those who ratified the Constitution thought it meant.
Finally we will look at how the Progressives interpret and re-interpret their
favorite clause.
The
necessary and proper clause was added to the Constitution by the Committee of
Detail with no debate. Nor was it the subject of any debate during the remainder
of the Convention. The reason why this clause was neither attacked nor defended
during the Convention becomes clear from the statements of the Framers during
the ratification process. James Wilson, one of the most eloquent defenders of
the Constitution, a signer of the Constitution, and one of the first justices of
the Supreme Court, said that this clause gave the federal government no more or
other powers than those already enumerated in Section 8 of Article I and that
“It is saying no more than that the powers we have already particularly given,
shall be effectually carried into execution.” The Framers felt as if the clause
was merely saying that which had been delegated could be used.
During
the ratification debates this clause was a hot topic. Brutus proclaimed that
through the Necessary and Proper Clause “This government is to possess absolute
and uncontrollable power, legislative and judicial, with respect to every object
to which it extends…” the debate raged back and forth between the Federalists
and the Anti-Federalists in newspapers, pamphlets, and on the floor of the
ratification conventions. Eventually the Federalists won the day and the
Constitution was ratified. The result? The interpretation of this clause that
was generally accepted by the ratification conventions was that it added no new
or expandable powers to the federal government.
Since
the New Deal era, Progressives have argued that the Necessary and Proper Clause
expands the powers of the federal government to any it deems necessary and
proper. In other words the federal government has all the power necessary to do
whatever they want about anything they want. The executive department has been
using this clause to grab power since Hamilton used it to found the First bank
of the United States in 1791. The Supreme Court has been stretching this clause
since they ruled in Mcculloch v. Maryland, 17 U.S. 316 (1819) to give themselves
the power of judicial review. This expansionist interpretation has been upheld
by the Supreme Court on numerous occasions and is today the accepted opinion
amongst the political-media-corporate establishment.
It
is my belief that if we have a better understanding of where we came from and
how we got here that we would have a better understanding of where we are. If we
understand where we are perhaps we will see the way to get back to where we
wanted to go when we started: back to a limited government of the people, by the
people and for the people.
Knowing
how a simple clause meant to say that what had been delegated could be used has
evolved into near totalitarian power shows us that just as the present use of
the Necessary and Proper Clause is neither necessary nor proper. And thus a
government of the people, for the people and by the people has been hijacked and
become something else.
No
matter what we have been taught, no matter even what the reality was the reality
is that the Constitution replaced the Articles of Confederation as the supreme
law of the land. The announced purpose of the Constitution’s writing and
adoption was to provide a limited government which respected both the rights of
the States and the people. Since this was the stated and accepted purpose of the
Constitution after two centuries and several decades can We the People
deny any longer that it has failed?
Failing
and failure are two different things. Everyone who has ever succeeded has
failed. It is falling forward from that failure which ultimately brings success.
If the
Constitution has failed what do we do now? Where’s the reset button.
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