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Unnecessary and Improper

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  • Jon Roland
    Unnecessary and Improper What are the origins of constitutional infidelity? Some
    Message 1 of 1 , Dec 14, 2010
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      Unnecessary and Improper

      What are the origins of constitutional infidelity? Some go back to the
      Alien and Sedition Acts of 1798 <http://constitution.org/rf/vr.htm>, but
      that was turned back by the Election of 1800. Although there are still
      proponents of similar measures today, for the most part the departures
      that still plague us began with some opinions by Chief Justice John
      Marshall, in which he included some dicta on the Necessary and Proper
      Clause, Art. I Sec. 8 Cl. 18

      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

      It did not take long after the adoption of the Constitution for
      ambitious politicians to try to stretch this clause, leading to its
      early nickname, the "elastic clause".

      The first case was /McCulloch v. Maryland/
      <http://constitution.org/ussc/017-316a.htm>, 17 U.S. 316 (1819), which
      contains the following passages:

      The word "necessary" is considered as controlling the whole
      sentence, and as limiting the right to pass laws for the execution
      of the granted powers to such as are indispensable, and without
      which the power would be nugatory. ... Is it true that this is the
      sense in which the word "necessary" is always used? Does it always
      import an absolute physical necessity so strong that one thing to
      which another may be termed necessary cannot exist without that
      other? We think it does not. If reference be had to its use in the
      common affairs of the world or in approved authors, we find that it
      frequently imports no more than that one thing is convenient, or
      useful, or essential to another. To employ the means necessary to an
      end is generally understood as employing any means calculated to
      [p*414] produce the end, and not as being confined to those single
      means without which the end would be entirely unattainable.

      CJ John Marshall may have been correct that in common parlance
      "necessary" does not always mean essential. But it does in law, and in
      the common law tradition that provided the language of the Constitution,
      and the rule of construction that powers always be construed as narrowly
      as possible <http://constitution.org/9ll/schol/pnur.htm>. This was the
      basis for both the wrong expansion of the meaning of "necessary" and for
      expansion of "carry into execution" from making an effort to getting a
      desired result. It is perhaps the single greatest error in
      constitutional construction in the history of the Supreme Court.

      Five years later, in /Gibbons v. Ogden/
      <http://constitution.org/ussc/022-001.htm>, 22 U.S. 1 (1824), CJ
      Marshall further built on this with the passages:

      This instrument contains an enumeration of powers expressly granted
      by the people to their government. It has been said that these
      powers ought to be construed strictly. But why ought they to be so
      construed? Is there one sentence in the Constitution which gives
      countenance to this rule? In the last of the enumerated powers, that
      which grants expressly the means for carrying all others into
      execution, Congress is authorized "to make all laws which shall be
      necessary and proper" for the purpose. But this limitation on the
      means which may be used is not extended to the powers which are
      conferred, nor is there one sentence in [p*188] the Constitution
      which has been pointed out by the gentlemen of the bar or which we
      have been able to discern that prescribes this rule. We do not,
      therefore, think ourselves justified in adopting it.

      The subject to be regulated is commerce, and our Constitution being,
      as was aptly said at the bar, one of enumeration, and not of
      definition, to ascertain the extent of the power, it becomes
      necessary to settle the meaning of the word. The counsel for the
      appellee would limit it to traffic, to buying and selling, or the
      interchange of commodities, and do not admit that it comprehends
      navigation. This would restrict a general term, applicable to many
      objects, to one of its significations. Commerce, undoubtedly, is
      traffic, but it is something more: it is intercourse.

      All America understands, and has uniformly understood, the word
      "commerce" to comprehend navigation.

      It is the power to regulate, that is, to prescribe the rule by which
      commerce is to be governed. This power, like all others vested in
      Congress, is complete in itself, may be exercised to its utmost
      extent, and acknowledges no limitations other than are prescribed in
      the Constitution. ... the sovereignty of Congress, though limited to
      specified objects, is plenary as to those objects, the power over
      commerce with foreign nations, and among the several States, is
      vested in Congress as absolutely as it would be in a single
      government, having in its Constitution the same restrictions on the
      exercise of the power as are found in the Constitution of the United

      Note this contains a logical error. That all commerce involves
      transport, and perhaps navigation, it does not follow that all
      navigation is commerce. That is taking the word "is" meaning "is a
      subset of" to mean "is equivalent to". CJ Marshall did not live in an
      era when people knew about set theory, but as one self-educated in the
      law, he also did not benefit from some sense of set theory that more
      advanced legal scholars of his time would have enjoyed.

      This departure was only in dicta, which may be why Jeffersonians did not
      react by proposing amendments to overturn them. For a long time, further
      decisions were not based on the dicta, but eventually, pressure from
      statists to expand the power of government tempted them to seize on the
      dicta as authority. This led to the key decision of /Wickard v. Filburn/
      317 U.S. 111 (1942), and more recently, /U.S. v. Comstock/
      <http://supreme.justia.com/us/560/08-1224/>, No. 08-1224 (May 17, 2010).

      Many have demanded a rollback of this line of precedents, but most of
      the proposals are inadequate. Asserting the Tenth Amendment won't work
      unless we attack the notions that "necessary and proper" is to get a
      result and that the power to regulate is the power to do whatever it
      takes to get a result. See Draft Amendments

      -- Jon

      Constitution Society http://constitution.org
      2900 W Anderson Ln C-200-322 Austin, TX 78757
      512/299-5001 jon.roland@...

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