FACT - The federal govt CANNOT by itself amend the federal constitution

[Skylar]

Damn, a whole lot of words and you didn't even address my point. Can the States change the Constitution without the involvement of the feds, yes or no?

No.

An amendment can be sent to the states for ratification through two methods. First, proposal in congress and passage by two thirds of both houses before the States can vote on any amendment. Or second, at a convention called by congress where 2/3rds of the legislatures of the States apply for such a vote. And the States vote on such an amendment.

Meaning that congress either votes on proposing the amendment or Congress calls the convention where States vote on proposing an amendment.

Either way, congress' participation is integral.

 

[OKTexas]

The intent of the framers was to create a government with tremendous national powers as compared to the government they were replacing, and that meant size. Where is it found in the Constitution that the size of the national government is limited?

See the enumerated powers in Article 1, Section 8, the feds were limited to 18 specific functions the remainder have been granted unconstitutionally by the courts. That's why we need an Article 5 convention, to reign in all 3 branches.

Nonsense.

In McCulloch v. Maryland (1819), the Court reaffirmed the original intent of the Framers that the Federal government was to be supreme, that the Constitution affords Congress powers both enumerated and implied, and that the states have no authority to interfere with the National government:

The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land. There is nothing in the Constitution which excludes incidental or implied powers. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate and plainly adapted to that end, and which are not prohibited, may be employed to*carry*it into effect pursuant to the Necessary and Proper clause.
The power of establishing a corporation is not a distinct sovereign power or end of Government, but only the means ofcarrying*into effect other powers which are sovereign. It may be exercised whenever it becomes an appropriate means of exercising any of the powers granted to the federal government under the U.S. Constitution. If a certain means to*carry*into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.

The Bank of the United States has a right to establish its branches within any state. The States have no power, by*taxationor otherwise, to impede or in any manner control any of the constitutional means employed by the U.S. government to execute its powers under the Constitution. This principle does not extend to property taxes on the property of the Bank of the United States, nor to taxes on the proprietary interest which the citizens of that State may hold in this institution, in common with other property of the same description throughout the State.

McCulloch v. Maryland ? Case Brief Summary

“There is nothing in the Constitution which excludes incidental or implied powers.”

So I guess the 10th Amendment was an exercise in futility, RIGHT? It plainly states there are only enumerated powers.

 

[OKTexas]

Wrong, the federal government was not limited to the 17 powers in section 8, but the Congress was. In addition the Congress could legislate all the laws necessary and proper to carry into execution all the other powers not only in section 8, but all powers and vested in the Constitution. So what are all those other laws Congress was authorized to pass, and who decides they are necessary and proper?

Exactly what powers are you referring to, paying to establishing embassies, funding other executive functions and the federal courts. There are no powers vested in the federal government other than those specifically enumerated, if you doubt that see the 10th Amendment.

Kinda. There is no explicit mention of the authority to establish a national bank in the constitution. But the founders clearly recognized such authority was implied, as one of the very first acts of the very first congress was to establish the Bank of the United States.

As for the '17 powers', these are powers of congress. Other branches have other powers. For example, the federal judiciary has jurisdiction over all cases that arise under the constitution. There's no mention of this in the '17 powers'. Nor would there be.....as Article 1 doesn't enumerate the powers delegated to the judiciary.

Nor are those powers limited to Article 1. But sprinkled throughout the entire constitution.

So you don't think Clause 2 in Section 8 wouldn't allow congress to delegate the power to coin money and regulate it's value to a Central Bank, I disagree. Also Clause 9 gives congress they power to Constitute Tribunals inferior to the Supreme Court, they determine the make up, and I believe they could also define their responsibilities.

 

[OKTexas]

Damn, a whole lot of words and you didn't even address my point. Can the States change the Constitution without the involvement of the feds, yes or no?

No.

An amendment can be sent to the states for ratification through two methods. First, proposal in congress and passage by two thirds of both houses before the States can vote on any amendment. Or second, at a convention called by congress where 2/3rds of the legislatures of the States apply for such a vote. And the States vote on such an amendment.

Meaning that congress either votes on proposing the amendment or Congress calls the convention where States vote on proposing an amendment.

Either way, congress' participation is integral.

Wrong again, there is a third method, the States can convene their own convention without any action of congress and send proposed amendment to the other States for ratification. If 3/4th vote in their conventions to ratify a proposed amendment it becomes part of the Constitution.

Article 5


The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate.

 

[Skylar]

Exactly what powers are you referring to, paying to establishing embassies, funding other executive functions and the federal courts. There are no powers vested in the federal government other than those specifically enumerated, if you doubt that see the 10th Amendment.

Kinda. There is no explicit mention of the authority to establish a national bank in the constitution. But the founders clearly recognized such authority was implied, as one of the very first acts of the very first congress was to establish the Bank of the United States.

As for the '17 powers', these are powers of congress. Other branches have other powers. For example, the federal judiciary has jurisdiction over all cases that arise under the constitution. There's no mention of this in the '17 powers'. Nor would there be.....as Article 1 doesn't enumerate the powers delegated to the judiciary.

Nor are those powers limited to Article 1. But sprinkled throughout the entire constitution.

So you don't think Clause 2 in Section 8 wouldn't allow congress to delegate the power to coin money and regulate it's value to a Central Bank, I disagree. Also Clause 9 gives congress they power to Constitute Tribunals inferior to the Supreme Court, they determine the make up, and I believe they could also define their responsibilities.

I've never spoken to the power to delegate the authority to coin. I'm directly addressing your claim that 'There are no powers vested in the federal government other than those specifically enumerated'.

Clearly, there are implied powers as well. As the founders demonstrated with their creation of the Bank of the United States. An entity that they have no 'specifically enumerated' power to create. But the founders recognized the federal government did have the power to create.

And the founders didn't delegate the power to coin money to the Bank of the United States. That power was delegated to the US mint.

 

[C_Clayton_Jones]

The intent of the framers was to create a government with tremendous national powers as compared to the government they were replacing, and that meant size. Where is it found in the Constitution that the size of the national government is limited?

See the enumerated powers in Article 1, Section 8, the feds were limited to 18 specific functions the remainder have been granted unconstitutionally by the courts. That's why we need an Article 5 convention, to reign in all 3 branches.

Wrong, the federal government was not limited to the 17 powers in section 8, but the Congress was. In addition the Congress could legislate all the laws necessary and proper to carry into execution all the other powers not only in section 8, but all powers and vested in the Constitution. So what are all those other laws Congress was authorized to pass, and who decides they are necessary and proper?

You're both wrong.

The Constitution affords Congress powers both expressed and implied:

In an opinion by Chief Justice John Marshall, the Supreme Court held that first, Congress had the authority to create the Bank of the United States. Second, the Bank of the United States had the right to establish branches within the states, and the states did not have the power to tax or otherwise interfere with any constitutional means by which the federal government exercised its authority. Although the Constitution did not specifically enumerate the authority of Congress to establish a federal bank, Congress nonetheless had the implied power to do so. Because the government had the powers of the sword and the purse, it must have ample means to execute those powers. The Necessary and Proper Clause of the Constitution (Article I, § 8) enabled Congress to pass all laws to effectively pursue its specified ends: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution….” Thus, Congress had wide discretion to make policy decisions so long as those decisions were plainly adapted to a constitutionally authorized end, and the Court would defer to Congress in these cases.

McCulloch v. Maryland (1819) | Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute

Consequently, the notion that Congress is 'limited' to a 'finite' number of powers is factually incorrect.

 

[Skylar]

Damn, a whole lot of words and you didn't even address my point. Can the States change the Constitution without the involvement of the feds, yes or no?

No.

An amendment can be sent to the states for ratification through two methods. First, proposal in congress and passage by two thirds of both houses before the States can vote on any amendment. Or second, at a convention called by congress where 2/3rds of the legislatures of the States apply for such a vote. And the States vote on such an amendment.

Meaning that congress either votes on proposing the amendment or Congress calls the convention where States vote on proposing an amendment.

Either way, congress' participation is integral.

Wrong again, there is a third method, the States can convene their own convention without any action of congress and send proposed amendment to the other States for ratification. If 3/4th vote in their conventions to ratify a proposed amendment it becomes part of the Constitution.


Article 5


The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate.

Incorrect. The passage you bolded spoke of the States voting at the convention. Not the States convening a convention. The convention is called by Congress, as decribed by Article 5. There is no mention anywhere in Article 5 of the States convening any convention for any purpose.

There's no method of passing an amendment that doesn't include the federal government. And there are only two method available, as Article 5 makes clear with its reference to 'one or the other mode of ratification'.

'One or the other' is not three. Its two.

 

[OKTexas]

Kinda. There is no explicit mention of the authority to establish a national bank in the constitution. But the founders clearly recognized such authority was implied, as one of the very first acts of the very first congress was to establish the Bank of the United States.

As for the '17 powers', these are powers of congress. Other branches have other powers. For example, the federal judiciary has jurisdiction over all cases that arise under the constitution. There's no mention of this in the '17 powers'. Nor would there be.....as Article 1 doesn't enumerate the powers delegated to the judiciary.

Nor are those powers limited to Article 1. But sprinkled throughout the entire constitution.

So you don't think Clause 2 in Section 8 wouldn't allow congress to delegate the power to coin money and regulate it's value to a Central Bank, I disagree. Also Clause 9 gives congress they power to Constitute Tribunals inferior to the Supreme Court, they determine the make up, and I believe they could also define their responsibilities.

I've never spoken to the power to delegate the authority to coin. I'm directly addressing your claim that 'There are no powers vested in the federal government other than those specifically enumerated'.

Clearly, there are implied powers as well. As the founders demonstrated with their creation of the Bank of the United States. An entity that they have no 'specifically enumerated' power to create. But the founders recognized the federal government did have the power to create.

And the founders didn't delegate the power to coin money to the Bank of the United States. That power was delegated to the US mint.

Yep, there are implied powers within the scope of the enumerated powers, like deciding where to place a postal road or a post office, you play semantics all night. But the government is limited to the power delegated to them by the Constitution, not shit invented by the courts.

 

[Skylar]

Consequently, the notion that Congress is 'limited' to a 'finite' number of powers is factually incorrect.

Again, kinda. The powers that are implied are those necessary to fulfill the duties it possesses. In the case of a federal bank, it necessary for the federal government to conduct financial transactions in the furtherance of its duties. The creation of an entity to conduct such transactions is thus an implied power, as it is necessary for the furtherance of an express power.

The federal government's implied powers are limited to those necessary for the exercise of its express powers. And thus finite, as those express powers are finite.

 

[Skylar]

Yep, there are implied powers within the scope of the enumerated powers, like deciding where to place a postal road or a post office, you play semantics all night. But the government is limited to the power delegated to them by the Constitution, not shit invented by the courts.

If the federal government has powers that are not enumerated, as you now admit, then your claim that the federal government has no power save those expressly enumerated is false.

And the creation of a federal bank isn't 'semantics'. Its an exercise of a power that the federal government possesses....but is mentioned no where in the constitution.

As for powers 'created by the courts', the courts are the authoritative arbiters of all cases that arise under the constitution. It is their job to determine what the constitution means. As Alexander Hamilton makes ridiculously clear in Federalist Paper 78:

[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Federalist Paper 78

If the federal judiciary adjudicates a case arising under the constitution and find that the constitution implies or allows a particular power by the federal government, that is a judgment within their authority to make. And that's merely the hypothetical 'constitution as legal philosophy' aspect.

If we talk about practical legal precedent, then the federal judiciary's authority to recognize both rights and powers has been long established. Rendering your claims of what the courts 'can't do' as inferior to what history has long demonstrated the courts can do.

 

[OKTexas]

Yep, there are implied powers within the scope of the enumerated powers, like deciding where to place a postal road or a post office, you play semantics all night. But the government is limited to the power delegated to them by the Constitution, not shit invented by the courts.

If the federal government has powers that are not enumerated, as you now admit, then your claim that the federal government has no power save those expressly enumerated is false.

And the creation of a federal bank isn't 'semantics'. Its an exercise of a power that the federal government possesses....but is mentioned no where in the constitution.

As for powers 'created by the courts', the courts are the authoritative arbiters of all cases that arise under the constitution. It is their job to determine what the constitution means. As Alexander Hamilton makes ridiculously clear in Federalist Paper 78:

[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Federalist Paper 78

If the federal judiciary adjudicates a case arising under the constitution and find that the constitution implies or allows a particular power by the federal government, that is a judgment within their authority to make. And that's merely the hypothetical 'constitution as legal philosophy' aspect.

If we talk about practical legal precedent, then the federal judiciary's authority to recognize both rights and powers has been long established. Rendering your claims of what the courts 'can't do' as inferior to what history has long demonstrated the courts can do.

The court only has that power if it is in compliance with the letter and intent of the Constitution. The invention of the powers in the "General Welfare" clause was a huge violation of that concept. Two words do not make a clause, they were part of the taxing and spending clause just like common defense, it is not an independent power, it is defined in the remainder of Section 8.

 

[Skylar]

he court only has that power if it is in compliance with the letter and intent of the Constitution.

The letter and intent of the constitution.....according to who? This is where things get a little muddy.

As the constitution contains quite a bit of ambiguity and room for interpretation. For example, what is 'probable' cause? What are 'arms' per the constitution? What does 'regulate' mean? What is 'unreasonable' search and seizures? What is 'natural born'?

And that's not even taking into account the implied powers that the federal government possesses, but that the constitution makes no mention of.

And of course, when you're dealing with rights, more than one person has them. So you often have competing rights. My right to free speech in screaming 'fire!' in a crowded theater vs. your right to life and my immediate endangerment of it. The degree of regulation of say, arms. Are they only muskets, as existed in the founders era? Do they include only commonly held arms by the public today. Or do they encompass all weaponry, granting individual citizens a protected right to own and use nuclear weapons, land mines and 50 caliber machine guns?

The courts are the body delegated the authority to make these judgment calls. That you may disagree with their judgment doesn't make it any less authoritative. Nor does the court lose its power because you decide that their judgment wasn't with the 'letter and intent of the constitution'. Or if I do.

Though if enough of us disagree, we can override the courts through the nomination process over the long term......or via amendment in the shorter term. Though neither is particularly easy. Nor should be. The beauty of our system is the difficulty of the consolidation of power.

The invention of the powers in the "General Welfare" clause was a huge violation of that concept.

Its the recognition of implied powers....which you have already acknowledge exists. The issue is then that of degree. Where you believe that the courts have acknowledged too many implied powers. Not that implied powers don't exist. Nor that the federal government has no power save those expressly enumerated.

And on issues of degree, I may be inclined to agree with depending on what we're talking about.

 

[Contumacious]

he court only has that power if it is in compliance with the letter and intent of the Constitution.

The letter and intent of the constitution.....according to who? This is where things get a little muddy.

.

Only if you are a federal bureaucrat determined to usurp powers.

.

 

[Skylar]

he court only has that power if it is in compliance with the letter and intent of the Constitution.

The letter and intent of the constitution.....according to who? This is where things get a little muddy.

.

Only if you are a federal bureaucrat determined to usurp powers.

.

Or if you've ever actually read the constitution....and noted the ambiguity and room for interpretation.

For example: implied federal powers. If the federal government only has the express powers cited explicitly in the constitution, by what authority did the Founders create the Bank of the United States?

Its an institution mentioned no where in the constitution, using a power expressed no where in the constitution. Where the founders 'federal bureaucrats determined to usurp power'....

......or is there far more room for interpretation in the constitution than you are willing to admit?

 

[Peach]

The letter and intent of the constitution.....according to who? This is where things get a little muddy.

.

Only if you are a federal bureaucrat determined to usurp powers.

.

Or if you've ever actually read the constitution....and noted the ambiguity and room for interpretation.

For example: implied federal powers. If the federal government only has the express powers cited explicitly in the constitution, by what authority did the Founders create the Bank of the United States?

Its an institution mentioned no where in the constitution, using a power expressed no where in the constitution. Where the founders 'federal bureaucrats determined to usurp power'....

......or is there far more room for interpretation in the constitution than you are willing to admit?

The Federalist Papers along with correspondence betwen Jefferson & Adams are readily available sources concerning intent.

 

[OKTexas]

he court only has that power if it is in compliance with the letter and intent of the Constitution.

The letter and intent of the constitution.....according to who? This is where things get a little muddy.

As the constitution contains quite a bit of ambiguity and room for interpretation. For example, what is 'probable' cause? What are 'arms' per the constitution? What does 'regulate' mean? What is 'unreasonable' search and seizures? What is 'natural born'?

And that's not even taking into account the implied powers that the federal government possesses, but that the constitution makes no mention of.

And of course, when you're dealing with rights, more than one person has them. So you often have competing rights. My right to free speech in screaming 'fire!' in a crowded theater vs. your right to life and my immediate endangerment of it. The degree of regulation of say, arms. Are they only muskets, as existed in the founders era? Do they include only commonly held arms by the public today. Or do they encompass all weaponry, granting individual citizens a protected right to own and use nuclear weapons, land mines and 50 caliber machine guns?

The courts are the body delegated the authority to make these judgment calls. That you may disagree with their judgment doesn't make it any less authoritative. Nor does the court lose its power because you decide that their judgment wasn't with the 'letter and intent of the constitution'. Or if I do.

Though if enough of us disagree, we can override the courts through the nomination process over the long term......or via amendment in the shorter term. Though neither is particularly easy. Nor should be. The beauty of our system is the difficulty of the consolidation of power.

The invention of the powers in the "General Welfare" clause was a huge violation of that concept.

Its the recognition of implied powers....which you have already acknowledge exists. The issue is then that of degree. Where you believe that the courts have acknowledged too many implied powers. Not that implied powers don't exist. Nor that the federal government has no power save those expressly enumerated.

And on issues of degree, I may be inclined to agree with depending on what we're talking about.

Jefferson, Madison and others have said that the General Welfare mentioned in Clause 1 of Section 8, along with common defense were spending categories that were limited in scope by the remainder of Section 8. Pardon me if I take their word over that of a court more than 100 years later. How can you really trust a court that expands its own powers every time they expand the scope of government.

 

[Procrustes Stretched]

[MENTION=39653]OKTexas[/MENTION]

That is a fucking lie, the executive can only write rules to implement legislation, period.

Jesus, what are you drinking?

Article1: Section: 8

...

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.

Gawd, use a search engine before you embarrass the usmb community like this.

https://www.boundless.com/political...groups/regulating-executive-branch-lobbyists/

http://www.csun.edu/~rprovin/PDFs/Chap08Notes.pdf

with only one search and two links... [MENTION=39653]OKTexas[/MENTION]

Yep, that a congressional power, the executive can make no laws since legislation exclusively belongs to congress.

The post above is your reply to somebody who posted this: "The executive can write its own regulations and rules. which require no legislation from Congress."

 

[Skylar]

The Federalist Papers along with correspondence betwen Jefferson & Adams are readily available sources concerning intent.

Then using the Federalist Papers, you agree that it was the courts that the founders intended to determine the meaning of the constitution?

[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Alexander Hamilton
Federalist Paper 78

The Federalist Papers - THOMAS (Library of Congress)

This would be the same Hamilton who championed the creation of the Bank of the United States *and* the concept of implied powers of the federal government.

So would you accept that implied powers and the courts being the arbiters of the meaning of the constitution are what the 'founders intended'?

 

[OKTexas]

The letter and intent of the constitution.....according to who? This is where things get a little muddy.

.

Only if you are a federal bureaucrat determined to usurp powers.

.

Or if you've ever actually read the constitution....and noted the ambiguity and room for interpretation.

For example: implied federal powers. If the federal government only has the express powers cited explicitly in the constitution, by what authority did the Founders create the Bank of the United States?

Its an institution mentioned no where in the constitution, using a power expressed no where in the constitution. Where the founders 'federal bureaucrats determined to usurp power'....

......or is there far more room for interpretation in the constitution than you are willing to admit?

It's allot less ambiguous if you use the definitions at the time the document was written instead of trying to apply today's definitions. Like at the time regulate meant to keep regular, not micromanage every aspect.

 

[Skylar]

Jefferson, Madison and others have said that the General Welfare mentioned in Clause 1 of Section 8, along with common defense were spending categories that were limited in scope by the remainder of Section 8. Pardon me if I take their word over that of a court more than 100 years later. How can you really trust a court that expands its own powers every time they expand the scope of government.

Jefferson played virtually no role in the writing of the constitution. He wasn't even in the country. Worse, he was an anti-federalist...the faction that lost in the debate on what the consittution was supposed to mean.

Madison is a much better source, being a Federalist Paper author. Feel free to quote him backing your point. Directly.

Hamilton, one of the writers of the Federalist Papers and one of the leading proponents of implied powers and federalism in general overwhelmingly supported the idea of implied powers which go beyond the scope of express powers.

A position he backed with actual policy, becoming a fierce and vocal advocate for the Bank of the United States.