Federalist 33, The Elastic Clause and The Democrat Tenet – If Congress Does Nothing, The President Can

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).

Alexander Hamilton by Constantine  Brumidi

Alexander Hamilton by Constantine Brumidi

“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)

Independent Journal
Wednesday, January 2, 1788
[Alexander Hamilton]


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.

Linked at Old Glory Lighthouse Journal in Putin, Obama, Israel, Oscars – Lions and Tigers, Oh My! 

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  • Mustang

    Thank you for the mention, Maggie.

    –Semper Fi

  • Pingback: Putin, Obama, Israel, Oscars – Lions and Tigers, Oh My! « Old Glory Lighthouse Journal()

  • Maggie, it is no wonder that you haven’t won more awards than you do. I especially am impressed with your knowledge of the Constitution and glad you mentioned, which I often do in my articles, that the Federalist (and Anti-Federalist) papers are good to read because it shows how the discussion and concerns went on in creating the US Constitution. That document and its amendments did not occur over a matter of weeks or months, but carefully debated and considered. There have been important documents in human history, beginning with the Ten Commandments up to the Magna Carta … but the US Constitution, precluded by the Declaration of Independence, are documents that can withstand time – if it is adhered to in its original context and form.
    It is not surprising to me that the government-controlled, progressive controlled education students would come up with the double-talk and putting words and meanings in the Constitution that is not there because it was never intended. It is why lawyers should not be elected, because they are taught to find loopholes – unlike the lawyers that made up the Founders. They warned future generations that if the people become apathetic towards what goes on in their government, as Jefferson stated, those in the three branches “will become like wolves.” The commentary about the people getting involved certainly was correct – people find politics boring and also have a short memory span – and the tyrants and self-serving politicians on both sides of the political aisle know this.
    It is all so depressing, but my nature and upbringing cannot allow me to give in, especially when advocating true reform. Too much will be lost, more than already has. John Adams (and other founders) as well as Ronald Reagan said that once freedom is lost it can never be regained. And for those who think it can be recovered through open rebellion are delusional; for the event that began in 1776 can never be repeated as far as the outcome. So many Americans that are born here take so much for granted, and no longer have the fortitude or the character to ensure that those seeking power over the people do not win.
    Good job, Maggie. You are a credit to the citizen journalists on the cyber-highway!

    • Keith Allen Lehman, first, I want to thank you for the comment, and also for the very kind comment at the end. It made my day, but I must say, your first line was a bit deflating. I choose to take the whole thing as a compliment and chalk-it up to our thoughts getting ahead of our fingers on the keyboard. It happens to me all the time.

      I love your comment about not electing lawyers, but on second thought, having a couple of real constitutional scholars in the House and Senate would be a good thing. We have Cruz, but then we also had Senator Barack Obama.

      Again, thank you. Bloggers are nothing without readers (although it can be therapy if nothing else.)

      If you have a blog, please feel free to leave a link here and I’ll visit.

      • Maggie: I see what you mean about the first line – it could have been taken in the wrong context, and that reminds me how even honest politicians can say things that do not reflect true meaning. 🙂
        There were Founders that were not lawyers, and despite the intellect of George Washington he felt intimidated/shy when conversing with fellow Patriots at times. Indeed, Benjamin Franklin did not have the formal education of the likes of Jefferson, Adams, etc. I guess my point was more like one does not have to have a degree in political science, just be like Abraham Lincoln and read and read more; and with the wonderful world of cyberspace, one can truly be self-educated today. However, there is nothing more thrilling than entertaining discussion with a professor who encourages his students to not just learn and remember, but think.
        Beginning with the oldest blog, established in 1999 as “Keifer’s Korner” newsletter and one year later – Lighthouse Journal. …
        Thanks for your interest. To reiterate that first line in last comment: Maggie, you should have won more awards because I certainly appreciate you and your excellent patriotic work and respect your intellect. I am a 15-year veteran, formally a professional soldier, and you are proof that a citizen can be a patriot and protector of the Constitution without serving in military – there are other ways to serve. Thanks for your understanding about my first line. 🙂

        • Hi Keith, so nice to meet the Old Glory Lighthouse Journal personally. Great work going on there. Funny things happen online. A blogosphere friend calls me ‘Dame Maggie.’ He recently tweeted to ‘Damn Maggie.’ I got a good laugh out of it.

          Re: lawyers and the common man in Congress, I just recently learned that the Speaker of the House does not need to be a member of Congress. All have been, but doesn’t have to be. I plan to write about that.

          I look at blogging the same way you do. It is what I can do. I live in a very Conservative area, Tulsa, and while there are things to be actively doing here, as Mustang said, visiting City Council and School Board meetings (done lots of SB in the past), with my schedule, which includes my 92 year-old mother, this is my most productive forum.

          I was dumbfounded when I learned that Tulsa was the only city in Oklahoma that Agenda 21 in the works. I wasn’t paying attention. That has been undone now, but at the time, it was eye-opening.

          I appreciate your taking time to say such encouraging things. We all need encouragement.

  • One of my readers passed this written by a 14-year old boy (allegedly) and I have failed to find the source …

    Our generation will be known for nothing.
    Never will anybody say,
    We were the peak of mankind.
    That is wrong, the truth is Our generation was a failure.
    Thinking that We actually succeeded Is a waste. And we know
    Living only for money and power Is the way to go.
    Being loving, respectful, and kind Is a dumb thing to do.
    Forgetting about that time, Will not be easy, but we will try.
    Changing our world for the better Is something we never did.
    Giving up Was how we handled our problems.
    Working hard Was a joke.
    We knew that People thought we couldn’t come back
    That might be true,
    Unless we turn things around

  • Sandra Carson

    Install a ‘print’ button, please.

    • Sandra Carson, I will see if I can do that. Thanks for the suggestion.

    • Sandra Carson, I have installed new share buttons at the bottom of each post. At this moment, you have to click the green “options” button on the far right, and then choose “print friendly,'(which is in the middle column in my browser). There is a way I can get the specific button to show automatically, but I haven’t figured it out yet.

  • Rick Lakehomer

    There is a reason I tread here, Maggie and it is discourse such as this and with what you post. I read a lot and seldom comment. I do know a bit about the Constitution and the Federalist papers. I just have little time anymore and pain does take it toll. It is amazing what does go on under under the sheets of city, school board etc. meetings. They will bore you to tears and death but as mentioned, this is intentional. Have a good friend who WAS president of the local school board. He is pretty liberal, for which I forgive him for but he quit because he could not longer stand the subversive intentions to stonewall the meetings into absolute boredom and then have the unions pull their garbage while no one was in attendance. Sound familiar? My friend quit in total disgust and he is a lifelong educator who still teaches part time and does it old school. Our local LE think and act like they are Navy Seal units. They have some nice toys to harass us locals with and yep, just sorta sneaked them in. Been to some meetings myself over the years.

    Taking back our cities? How, when so many are texting while driving on their free gov’t phones. Kill me now, please, just kill me now and allow me to take out as many stooges as possible on my way ‘home’.

    • Rick Lakehomer, very interesting account of your friend. At the time my son was in school and I was involved in PTA and attending SB meetings, I didn’t have a clue about Unions. Today, if parents are paying attention, they can see the subversion in what their children are studying and hear the stories online, and today, teachers are much more alarming in the classroom. I hope you will soon feel better Rick. Thanks for coming by.

      • Rick Lakehomer

        What is being force fed to our kids is disgusting and I wish I did not know about unions, Maggie. Some of what I learned was via a club and brass knuckles a long time ago courtesy of the Teamsters. I was just a young kid and wanted to work, go to work so I could eventually go back to school and finish college. Thank the Lord when I was in College I had outstanding, fair and open minded professors, many who were retired military, three who fled from East Germany and Poland. Communism, socialism etc was taught as evil and bad, period.

        Thanks for your thoughts and after 3 spinal fusions and 9 shoulder surgeries, it is what it is. In severe constant pain 24/7 but it could be much much worse. Many are worse off than I am.

  • Qball

    Great article. The necessary and proper clause is often called the elastic clause for a good reason. Pick out ten random Supreme Court decisions to read, and you’ll find that the clause is used in at least six of them to justify passage of legislation. I do have to disagree on one point, however. The Federal government did spend some time arguing that Obamacare was, in fact, a tax. Of course, they also argued that it wasn’t a tax on other days. Chief Justice Roberts was correct in pointing out that legislation is the right of Congress alone and, therefore, the court should let legislation stand whenever possible. However, nowhere in his decision (and I read the whole thing) does he address the obvious contradiction in the government’s two arguments. Perhaps the President can explain the High Court’s acceptance of the contradiction, Constitutional scholar that he is. (heavy on the sarcasm) Of course, when addressing the media, the Administration still looks us in the eye and tell us it’s not a tax.

    • Qball, thanks for commenting here. Are you saying that with Roberts saying legislation should stand, that there was taxing legislation? It’s my understanding that the ACA did not include taxing language. I was uanaware that it was argued both ways, but believed that the taxing legislation is to be found only in John Roberts head.