More On Constitutional Misconceptions

On Constitution Day we posted about some constitutional misconceptions.  We dealt with the “general Welfare” argument for allowing our federal government to usurp powers not enumerated in the Constitution.  We also reminded our readers that Article I, section 1 of the U.S. Constitution empowers only Congress to make law.  We referenced the Federalist Papers, the U.S. Constitution, and Websters Unabridged Dictionary (1828).  It is our hope that we clarified the following facts:

  1. The Legislative Branch (Congress) is the only branch of government, empowered to make law.  Therefore, Supreme Court decisions and Executive orders are not the law of the land but attempts at usurping the legislative authority of Congress.
  2. Article I, Section 8 of the Constitution includes a specific list of enumerated powers.  The Congress does not have the power to do whatever it thinks will promote the general welfare.  It has the powers listed.  Otherwise, why make a list of powers?  In fact, why have a constitution at all?

Many argue that the federal government has unlimited power, because of the necessary and proper clause.  They quote from the list of powers in Article I, section 8,  that Congress shall have power, “To make all Laws which shall be necessary and proper”.  The truth is that our founders gave us the Constitution to limit government.  Any interpretation of the Constitution that implies unlimited power is not in keeping with the intent of the founders.  In this case, the lie is revealed by simply quoting the entire sentence, “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.”  It is clear that the intent of the founders was to give Congress the power to make laws necessary and proper to carry out the duties of the federal government, listed in the Constitution.  Madison deals extensively with a possible usurpation of power, by this argument in federalist #44.  I urge you to read it for yourself.  He gives the following solution for dealing with elected officials who usurp authority using the “necessary and proper” excuse, “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, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and 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.” (emphasis added). If we want to maintain our freedom we must oppose elected officials who usurp authority and elect representatives who will support and defend the Constitution, as their oath of office requires.

There are other misconceptions about our Constitution and the powers of our federal government, which we will detail in future posts.  However, a good rule of thumb is, any interpretation  of the Constitution which implies unlimited power is not in keeping with the intent of our founders.  This can be seen by carefully reading the Constitution and the Federalist Papers.  Also, common sense tells us that our founders would not specifically list powers and separate them across three branches of government, only to give unlimited power to one or all branches of government, in some other part of the Constitution.

 

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