Two articles caught my attention this week. The first was Christian Adams writing at PJ Media. Remember Christian, the DOJ attorney in the Civil Rights Department who resigned during the squalor of the New Black Panther Party’s absolution of the already-adjudged guilty, crime of voter intimidation at a Philadelphia polling place in the 2008 elections? Mr. Adams spoke at Emory University recently, and encountered a student who defended Obama’s power overreach under the “Elastic Clause,” and a female student — an officer of Campus Democrats — who cited the Constitution’s presidential authority to act when Congress doesn’t. (I hope you will read the last paragraph below, which is a comment from a blogger).
“It’s part of the Constitution that if the Congress doesn’t act, then the president can issue executive orders to fix something,” was her argument.
Even more frightening, the person saying this is an officer of the campus Democrats. A little totalitarian in training.
Naturally, this was all quite an eye opener. I’m no fool when it comes to the institutional left and their corrosion of the system. But to have a student debate me over a verifiably fictional constitutional provision, to have a student presume I was the one making things up when I said the Elastic Clause didn’t exist – that blazed new territory. Read more here – an excellent article talking about “the small ideas of totalitarianism”
The second attention-grabber is an article at The Federalist titled A Long Walk (Back) to Freedom (linked below), which also mentions the ‘Elastic Clause,’ and Federalist 33. I believe the authors, David Corbin and Matt Parks, are referring to the Constitution’s Necessary and Proper Clause, Article 1, Section 8, as what might be considered the ‘elasticity’ in judgement of what is ‘necessary’ and ‘proper.’ [If I’m wrong, my sincere apologies]. First, the text of Article I, Section 8 and then commentary from Corbin and Parks:
Necessary and Proper Clause, written by Alexander Hamilton:
Under Article I, Section 8 of the Constitution, Congress has the 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 any Department or Officer thereof”. Source: Cornell Law
Corbin and Parks:
Hamilton’s initial point is that every power granted to the national government is liable to abuse. Like Madison, Hamilton places little hope in the idea that “parchment barriers”–careful enumerations of (the limits of) government authority–will, by themselves, keep political leaders from expanding their powers beyond reasonable constitutional bounds.
What is needed, then, is not just a way to keep the “elastic clause” from stretching too far, but a comprehensive approach to resisting federal usurpations of individual and state authority…
As Hamilton argues later in the essay, laws that that go beyond the Constitution are “merely acts of usurpation, and will deserve to be treated as such.”…
That, according to Federalist 33, leaves the responsibility in the hands of the people…
But how do we find the best method of redressing the injury? Hamilton is wise enough to know that one approach isn’t suitable for all cases, but he does suggest two principles to guide us….Read those two principles here, or go to The Federalist for an explanation using a modern day example of overreach.
Reading the whole of Hamilton’s thoughts in Federalist 33, and understanding that the Federalist papers were essays designed to explain to ‘We the People’ the Founder’s intent in their constitutional design — how they envisioned the road to liberty through the Constitution — it is a ‘through-the-looking-glass’ view, showing that Hamilton could write alongside our most conservative thinkers today, and be understood, and his audience then, was more than a little like the audiences he would face today. The first is a look at who the critics were, and the pithy manner in which he described them, and the second is the line of reasoning to follow in the authority behind the Necessary and Proper Clause, specifically regarding taxation, but in general, the matter of “law,” so states Hamilton:
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.
Concerning the General Power of Taxation (continued)
Wednesday, January 2, 1788
To the People of the State of New York:
These two clauses [Article 8, Section 8 and Article 6, Clause 2] 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 proper means of executing such a power, but necessary and proper laws? Read the entire Federalist 33 essay here.
That last paragraph above is what Christian Adams “little totalitarian in training” should digest, but can we expect even the attempt, when Supreme Court Chief Justice, John Roberts said ObamaCare was a tax, when the administration actually argued in court that it was not a tax, it was a matter of ‘Commerce, and Roberts said, ‘no it isn’t a matter of Commerce, and never mind that only Congress can pass a tax, but didn’t?
In Hamilton’s discussion, he asks,”Who is to judge of the necessity and propriety to the laws? He gives an example of the federal government varying a state’s law on “descent,” which I understand to mean the same thing as ‘inheritance’ today. After saying that such an attempt “cannot easily be imagined,” he says”
would it not be evident that in making such an attempt it had exceeded its jurisdiction and infringed upon that of the State?
In another example: what if the federal government tried to abrogate (void or nullify) a land tax imposed by 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?…
Hamilton told us then how others would go about attempting to make the ‘necessary’ and the ‘proper’ neither, and it is exactly what we see today:
in the imprudent zeal of their animosity to the plan of the Convention, have laboured to invelope it in a cloud calculated to obscure the plainest and simplest truths.
Corbin and Parks note that the early “American patriots” labored for 25 years to bring about a sure path away from tyranny, and cites the TEA Party’s 5-year anniversary just last week with this conclusion:
Victory will require ten thousand leaders on the political front lines, supported by another million citizens making a compelling case to one hundred million more about what is necessary and proper. Determining how far we are from those marks and how to make up the difference ought to be front and center as we consider how and when to convene.
Abraham Lincoln later described America as a “government of the People, by the people, for the people, and further said, that the sacrifice of the people he led through the Civil War, both living and dead, “shall not perish from the earth,” and so here we are again without blood on a battlefield, trying to figure out how be “front and center and when to convene,” which brings me to this comment, left here at Maggie’s Notebook, by much-admired fellow blogger, Mustang at A Montpelier View:
We often bemoan the fact that our citizens are no longer engaged in the national dialogue. Well, guess what? They aren’t even engaged in local dialogue. Citizens shun attending school board meetings and city hall meetings because they are, quite frankly, boring.
Well, here’s a bit of news for you: school board superintendents and city parliamentarians design these meetings to be boring. If they are boring, people won’t attend. And, if people don’t attend, then the Police Department gets a new shipment of machine guns to use against Americans. And MRAPs, Light Assault Vehicles, UAVs (not yet armed with missiles, but don’t get too giddy just yet), and cameras to monitor what we Americans are really up to on the way to Wal-Mart.
No, we can’t expect Americans to take back the country if they are too lazy to even take back their cities.
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