reply to post by endisnighe
It has been suggested a few times by other posters in this thread, and of course countless other threads, to read the Federalist
to have a better understanding what was meant and intended by any phrase in the Constitution including the two
referenced in the previous post. Beyond reading these two seminal works one should also familiarize themselves with Thomas Paine's Common
and even further recommended reading would be The Law
by Frederic Bastiat.
The Law by Bastiat is a common sense approach to law and its purpose and any one presumed to know the law, (that would would be all of us), should
take the time to read this simple document. Of course, Paine's Common
Sense is a must read for anyone advocating modern revolution and why it is necessary, but it should be understood that Paine himself had no idea that
his brilliant pamphlet would lead to the movement it stirred and the violent revolution that followed. I am not a fan of violence and while force is
sometimes a necessary tool to secure freedom, revolutions by definition need not be violent. Change can happen without the use of violence.
For any serious student of the Constitution, both the Federalist and Anti-Federalist are must reads. As to the two Clauses mentioned in my previous
post, the authors of the Anti-Federalist Papers were vehemently opposed to Section 8 Clause 18 and just as strongly opposed to Clause 3. Many of
their writings eerily predict an out of control Congress that would gain an ever increasing power by relying upon these clauses. While Alexander
Hamilton of the Federalist Papers was most famous for his ardent advocacy of a strong federal government, it is perhaps James Madison in Federalist 44
that makes the strongest and most sound arguments for these clauses.
Madison addresses directly the objection to this clause with a valid question:
Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more
completely invulnerable. Without substance of this power, the whole Constitution would be a dead letter.Those who object to the article,
therefore, as a part of the Constitution, can only mean that the form of the provision is improper. But have they considered whether a better form
could have been substituted?
~Federalist Paper #44-James Madison~
Madison answers this question by suggesting there were four possible methods by which to address the concerns. Those four methods were:
1.) Duplicating the all ready existing clause of the Articles of Confederation that would have prohibited the powers not expressly delegated.
2.) Attempting a positive enumeration of the powers comprehended under the terms "necessary and proper".
3.) Attempting a negative enumeration of the powers, specifying expressly what powers are prohibited, or;
4.) Remained entirely silent on the matter leaving these necessary and proper powers to construction and inference.
As Madison points out, the first method could have either left them in the same position they were already in where the term "expressly" was debated
to either be construed so vigorously as to render the government useless, or construed so liberally as render all restriction useless. Madison
further points out, that when it comes to the power of Congress that their power can not be effectively used without adopting the doctrine of
construction or implication. This doctrine is an important one for all of us who are presumed to know the law.
As to the second method, Madison correctly pointed out that a positive enumeration would have demanded a Constitutional construction so dense and
loaded with verbiage, (much as current legislation tends to be) as to render the Constitution an overwhelming text not readily accessible to the
common person for who it is intended to be understood. Not to mention the inevitable variance of possibilities when it comes to legislation and its
As to the third method, Madison again points out the "chimerical" nature of such enumeration while also pointing out that every power not prohibited
could easily be construed as a positive grant of power. As to the fourth method, had they Framers remained silent on the issue it would be inevitable
that such silence would have only led to an inference of such power anyway. As Madison himself said:
No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general
power to do a thing is given, every particular power for doing it is included.
~Federalist Papers #44 - James Madison
I leave the reader to read Federalist #44 in its entirety to better understand what Madison is addressing and how he attempts to answer the concerns
of usurpation of government. I have taken the time to speak to these Clauses and Madison's attempt to justify them in my own attempt to illustrate
just how difficult it can be to "reinstate the Constitution" as the O.P. has recommended. It can be argued and indeed is being argued, not just in
this thread or in this site but by Congress and the other two branches of government that what is happening today is within the bounds of the
The question remains is this true? Has Congress remained within its Constitutional boundaries and only acted within their own scope of jurisdiction?
The O.P. has simplified this question somewhat, (and by simplified I don't mean to imply over simplified), by asserting that "any and all statutes
that restrict or go against the given rights of the States or the Citizens are instantly abolished." As a few posters have pointed out, such a task
is easier said than done. I would also clarify that it is not citizens who have rights but all people.
I have further taken the time to frame my posts within the context of these two Clauses of Section 8 from Article I and Madison's attempt to justify
them because they seem to speak to a common concern from posters on both the conservative and liberal side of the spectrum, such as statutory
construction and the verbiage used to construct it, as well as the subject matter jurisdiction authorized by such statutes, codes, or other forms of
[edit on 3-1-2
[edit on 3-1-2010 by Jean Paul Zodeaux]