Hey libs...what's the point of the enumerated powers?

[Liberty]

If the enumerated powers are intended to be the responsibilities of the federal congress (article 1 section 8), but the "general welfare clause" supersedes the enumerated powers (according to your doctrine) and allows the federal government to do whatever it deems necessary to preserve the "general welfare" (IE. do whatever it wants without constraint), then what, pray tell, is the purpose of enumerating congressional power at all?

If you have a somewhat decent answer, please back it up with documents/letters/federalist papers from the period.

 

[Dragon]

If the enumerated powers are intended to be the responsibilities of the federal congress (article 1 section 8), but the "general welfare clause" supersedes the enumerated powers (according to your doctrine)

It does not. There is no "general welfare clause" as such, rather that is a modifier on the power to tax and spend.

The language has a specific meaning that is bound up with the original idea of "United States" as a plural rather than singular noun phrase. (The complete language is "Congress shall have the Power to lay and collect taxes . . . to . . . provide for the general welfare of the United States." That means the welfare of the whole country rather than for one state in particular.

Congress does not have the power to do anything it pleases to provide for the general welfare, it is only empowered to levy taxes and spend money to do so. Further, any such spending must be for the whole country; a program available in one state must also be available in all states insofar as common sense allows (e.g., if it's about protection of coastal wetlands one would not realistically expect to see any federal money spent for that in Nebraska).

For powers other than taxing and spending, see the other enumerated powers, to which no "general welfare" modifier applies.

 

[Syphon]

If the enumerated powers are intended to be the responsibilities of the federal congress (article 1 section 8), but the "general welfare clause" supersedes the enumerated powers (according to your doctrine)

It does not. There is no "general welfare clause" as such, rather that is a modifier on the power to tax and spend.

The language has a specific meaning that is bound up with the original idea of "United States" as a plural rather than singular noun phrase. (The complete language is "Congress shall have the Power to lay and collect taxes . . . to . . . provide for the general welfare of the United States." That means the welfare of the whole country rather than for one state in particular.

Congress does not have the power to do anything it pleases to provide for the general welfare, it is only empowered to levy taxes and spend money to do so. Further, any such spending must be for the whole country; a program available in one state must also be available in all states insofar as common sense allows (e.g., if it's about protection of coastal wetlands one would not realistically expect to see any federal money spent for that in Nebraska).

For powers other than taxing and spending, see the other enumerated powers, to which no "general welfare" modifier applies.

interestingly enough, by your explanation, wouldnt this make earmarks illegal since they only benefit one state and not all the states as a whole?

 

[Liberty]

What say you about Madison's explanation of "general welfare" as simply a preamble and has no power in law when addressing the anti-federalists critique of the proposed constitution? Federalist 41:

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

The Federalist #41

It seems the author himself deems the preamble of article 1 section 8 to be nothing more than an introduction to the enumerated powers.

 

[Syphon]

What say you about Madison's explanation of "general welfare" as simply a preamble and has no power in law when addressing the anti-federalists critique of the proposed constitution? Federalist 41:

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

The Federalist #41

It seems the author himself deems the preamble of article 1 section 8 to be nothing more than an introduction to the enumerated powers.

whats your opinion of Federalist #10 then?

The Federalist #10

Federalist No. 10 is sometimes considered the most important of the essays. A strong national government, the Federalists argued, would prevent factions from taking control by forcing debate and compromise.

 

[Liberty]

What say you about Madison's explanation of "general welfare" as simply a preamble and has no power in law when addressing the anti-federalists critique of the proposed constitution? Federalist 41:

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

The Federalist #41

It seems the author himself deems the preamble of article 1 section 8 to be nothing more than an introduction to the enumerated powers.

whats your opinion of Federalist #10 then?

The Federalist #10

Federalist No. 10 is sometimes considered the most important of the essays. A strong national government, the Federalists argued, would prevent factions from taking control by forcing debate and compromise.

youre going to have to be more specific. To which part of the constitution does federalist 10 address that contradicts federalist 41?

 

[C_Clayton_Jones]

Case law?

That's all that matters, having nothing to do with "libs"

 

[Dragon]

What say you about Madison's explanation of "general welfare" as simply a preamble and has no power in law when addressing the anti-federalists critique of the proposed constitution?

I say that you need to take Madison's critique in context, and that you did not quote enough of the language of Federalist 41. here:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare.

"But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?

Madison is addressing here, not the idea that the Constitution gives Congress a general power to tax and spend for the general welfare, but rather the idea (quite mistaken) that it gives Congress the authorization to exercise all powers whatsoever for that purpose, or in his words, "an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare." Madison was right in saying that it does not, and that the power here extends only to raising taxes and (by implication) appropriating funds. Note the implication of these words: " though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

Madison's views at the time he co-wrote the Federalist Papers were essentially the same as mine. He did express a different and narrower concept later when he occupied the White House. I believe he was right when he wrote the above, and wrong when he was President (although of course, the president may veto any bill for any reason, so he wasn't in the wrong to do that).

 

[Syphon]

Fed 10 has to with keeping more power within the Fed than with the States. Since the GOP always argues that things are a state issue, this applies directly to that argument.

 

[Liberty]

Fed 10 has to with keeping more power within the Fed than with the States. Since the GOP always argues that things are a state issue, this applies directly to that argument.

"things?" the 10th amendment has no purpose then?

 

[Syphon]

Fed 10 has to with keeping more power within the Fed than with the States. Since the GOP always argues that things are a state issue, this applies directly to that argument.

"things?" the 10th amendment has no purpose then?

the federalist papers were written to persuade the people of new york to back the Constitution. some people like yourself think they are meant to explain the reasoning behind the constitution. but the again the federalist papers were written by 3 men. Alexander Hamilton, James Madison and John Jay. So this could be in essence the opinions of these 3 men only, seeing as how 70 men actually signed the Constitution. Or it could truly be the building blocks of the Constitution. that is up for debate.

But there are ideals within the Federalist papers that conflict with modern day thinking. Such as Fed 10. which advocates for a stronger federal government, than state government. the GOP currently always wants to send things back to the states. education, medicare, social security, etc etc. Fed argues against that. "The Federalists argued, [a strong central government] would prevent factions from taking control by forcing debate and compromise." now could those factions be political parties? could they be special interest groups? could they be lobbyists? could they be the states themselves? that is up for interpretation.

this comes down to what holds more weight? the federalist papers as a document to interpret the constitution, or the actual wording of the constitution itself? a situation such as Fed 10 conflicts a bit with the 10th Amendment does it not?

 

[Liberty]

i dont get your argument. Education, for example is not in the enumerated powers...thus the 10th amendment kicks in. That's original intent. If you want the federal government to regulate education, then a constitutional amendment is the appropriate avenue for such powers.

 

[Dragon]

i dont get your argument. Education, for example is not in the enumerated powers

That depends on what the government is doing w/r/t education. The government may commit funding for education; that's contained in the tax/spend clause. The government may also issue guidelines for education as long as it does not try to legislate binding standards. (Guidelines that impact availability of federal funding are a gray area and one must refer to court cases.) Beyond that, the federal government is given no authority and so this function devolves upon the states.