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Common Sense Too
........... Part1 ............
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Common Sense Too
........... Part2 ............
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Common Sense Too
........... Part3 ............
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Common Sense Too
........... Part4 ............
Gun Rights
Protect Life
Tea Party

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Common Sense Too: Part 2
Unnecessary and Unproper:

The phrase “General Welfare” is combined with the power of congress to make “all laws necessary and proper” at the end of section 8 of the constitution to justify unlimited sovereignty of the congress. This clause in the constitution is cited as the reason why the congress’s foray into social programs, such as education and social security, is legal under our constitution. This interpretation turns the concept of a constitution on its head.

A constitution should set the design of a government. The United States constitution is designed to allow several sovereign states to be self governing while at the same time cooperating in self defense, common currency, and interstate commerce. The constitution needs to include a generic clause to allow for the creation of laws. If this clause were not included in the constitution then all laws would have to be included in the text of the constitution as congress would otherwise have no constitutional power to create laws. For the constitutional design to have any meaning, the power to create laws by this generic clause must be interpreted to only allow the making of laws specifically relating to specific powers enumerated in the constitution.

Our constitution was designed to allow separate neighboring state to co-exist independently, controlling their own governance and social design while supporting each other in commerce and defense. Yet today our federal government is involved in all manor of social design thought to be reserved to the states. The constitution can not protect the states from this intrusion by the federal government when congress is given the power to make all laws which shall be necessary and proper, and this phrase is left to the interpretation of Supreme Court justices (the rule of man) instead of being limited to the specific design as spelled out in the constitution. Without a generic clause all laws would have to be included in the constitution. With a generic clause the congress can take any power that it sees fit through liberal interpretation, contrary to the constitution’s design. Either way the constitutional rule of law becomes unworkable.

In Article 1, Section 8 of the constitution the eighteenth paragraph grants congress the power to make laws:

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.

Wikipedia Article on Necessary and Proper Clause

This clause was tested early on in the life of the constitution as the formation of a National Bank was proposed in 1791 and opened on December 12. At that time George Washington was President; Alexander Hamilton was Secretary of the Treasury; Thomas Jefferson was Secretary of State. There were questions of whether the formation of a National Bank was constitutional under the necessary and proper clause listed above. President Washington asked for the opinions of Hamilton and Jefferson to give him guidance on the issue.

Thomas Jefferson was of the opinion that a National Bank was unconstitutional and wrote a letter to Washington explaining his position. Jefferson believed that “necessary AND proper” limited the making of laws to those functions directly related to clause 2 through 17 in Article1 Section 8 of the constitution. He believed the power listed in these 16 clauses could still be maintained without a National Bank. Therefore he felt that a National Bank was not NECESSARY and was thus unconstitutional. Below is an excerpt from Jefferson’s letter to George Washington:

1. "To lay taxes to provide for the general welfare of the United Stares;" that is to say, "to lay taxes for the purpose of providing for the general welfare." For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.

It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.

2. The second general phrase is, "to make all laws necessary and proper for carrying into execution the enumerated powers." But they can all be carried into execution without a bank. A bank, therefore, is not necessary, and consequently not authorized by this phrase.

It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are "necessary," not those which are merely "convenient" for affecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one; for there is not one which ingenuity may not torture into a convenience, in some way or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of the power would be nugatory.

Jefferson Letter to Washington on National Bank

Alexander Hamilton was the one who proposed the National Bank and he felt that a National Bank was required to support the duties of congress as listed in Article 1 Section 8 of the constitution. He argued that a bank had an obvious relation to the power to borrow money and to regulate commerce. His definition of NECESSARY was different than Jefferson’s definition. He believed that any law that did not infringe on the rights of the states or individuals, and improved the government’s ability to dispense with its duties was considered necessary. Below is an excerpt from Hamilton’s letter to George Washington in response to Jefferson‘s letter:

It leaves, therefore, a criterion of what is constitutional, and of what is not so. This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion, which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State or of any individual? If it does not, there is a strong presumption in favor of its constitutionality, and slighter relations to any declared object of the Constitution may be permitted to turn the scale.

Hamilton's Letter to Washington in support of a National Bank

President Washington eventually sided with Alexander Hamilton as he was his Secretary of the Treasury and as such should have been more knowledgably in these matters.

This debate shows the flaws in the constitution when only four years after its adoption there was a major debate on the powers of congress. Also note that President George Washington made the final decision on the National Bank, not the Supreme Court. Supreme Court powers increased later under the now famous Marbury versus Madison case of 1803.

Marbury vs Madison Case of 1803

Take notice that the National Bank controversy involved a power that arguably was related to congress’s powers. The fourth clause of Article 1 Section 8 of the constitution gives congress the power to regulate commerce among the several states. A National Bank, it can be argued, is necessary to help facilitate that delegated power of Congress.

Jefferson, as seen above, was worried that if powers were taken by congress, that were not absolutely necessary, then congress would find ways to justify further expansion of their powers through misinterpretation. Hamilton believed that congress could pass laws that supported their constitutional responsibilities even when not specifically enumerated in the constitution. But neither of these stands included congress taking powers to support generic programs that need tortured analysis to be linked to the clauses listed in Article 1 Section 8. Read this section of the Constitution and ask yourself how Social Security or Education or Welfare is related to any of the clauses listed below:

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the Supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

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.

Constitution of The United States of America