I am of the firm opinion that the federal government should be a lot smaller, and that the federal government acts illegally every day when it does a lot of the "general welfare" things that the Tenth Amendment prohibits. People in favor of the status quo point to the "general welfare" clause of Article I, Section 8 of the Constitution, saying that this allows the federal government to do anything in regard to the general welfare. But that must be understood in light of the context, of the intent.
James Madison wrote in Federalist 45:
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
The operations of the Federal Government will be most extensive and important in times of war and danger; those of the State Governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State Governments will here enjoy another advantage over the Federal Government.
In the "articles of confederation," the phrases are used as follows, in Art. VIII. "All charges of war, and all other expenses that shall be incurred for the common defence and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land within each state, granted to, or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled shall from time to time direct and appoint."
In the existing Constitution, they make the following part of Sec. 8, "The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and to provide for the common defence and general welfare of the United States."
This similarity in the use of these phrases in the two great federal charters, might well be considered, as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said, that in the former they were ever understood to be either a general grant of power, or to authorize the requisition or application of money by the old Congress to the common defence and general welfare, except in the cases afterwards enumerated, which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present Constitution, it can never be supposed that when copied into this Constitution, a different meaning ought to be attached to them.
The total population of the United States when that was written was less than half the size of Los Angeles County is now. The Constitution was great, its authors were brilliant, forward-thinking men, astounding foresight, etc.
But anything has trouble scaling over 200 years. There was huge uproar and griping over Marbury v. Madison but it turned out to be necessary to balance powers. Income tax turned out to be necessary to stabilize the middle class and literally save millions of lives, without plunging the government into debt. Creation of corporations and extending rights like patent/copyright ownership to them, this was a huge departure from the Constitution in the 1880s but ended up fuelling economic expansion in the 20th century. (And causing big problems in the 21st but that's another story.)
The point is that it's a living document. "General welfare" administration is vital to, again, literally, save millions of lives in the 21st century. You don't like that, back when the entire country could fit into half of L.A., its authors had a different opinion about what the scope of that phrase should be? Tough.
Grow up and live in the country we have now. In scaling that document to cover 100 times as many people, sometimes we have to go by what the document says, and not the wishful thinking of the people who wrote it. Gee it'd be swell if we lived in your world or Madison's where we could have a nice happy society where a minority was literate and we lived off of slave-picked cotton and indentured servitude. But we don't, we live in a society where universal, compulsory education is necessary. That means stretching the meaning of "general welfare" beyond what Madison intended. It's all perfectly legal and Constitutional and the only disadvantage is that people like you whine about it.
If you don't like it, maybe on your next cross-country trip you should hold your own little protest by refusing to drive on federally-funded roads. Damn highway system, how dare those big-government bureaucrats in the 1950s build thousands of miles of high-speed freeways and justify it all as "general welfare"! It's outrageous I tell ya! Show us how much you love Madison by sticking to the roads funded exclusively by state and local governments. AAA can make you a map for that right?
This has been Reality Check, and I am through.
Re:Weepiness
pudge on 2003-05-15T17:20:47
Marbury v. Madison is hardly relevant here. What Marshall said is that Congress has implied powers: those powers that are necessary and proper to perform their expressed powers. That is not a blanket "do whatever is in the general welfare" interpretation.
The point is that it's a living document.
Feel free to amend the Constitution, if you can. Until then, it is law, and violating it is illegal. Being a "living document" does not mean you can modify the interpretation to fit what you think it SHOULD mean, it means you can amend it.
sometimes we have to go by what the document says
That is what I am arguing for. It is clear to any objective mind that the Constitution does not grant Congress blanket powers regardin the general welfare.
Grow up and live in the country we have now.
Grow up and follow what the law is, not what you think it should be.
Re:Weepiness
jamiemccarthy on 2003-05-15T21:06:15
I note for the record that your interpretation of the commerce clause to allow the government to build roads and bridges is found nowhere within the Federalist Papers. Read Nos. 12 and 22 for example. Or just look up the commerce clause in the index and read through every mention of it. Every single time, you will find what is discussed is taxes, duties, import taxes, evading import taxes, tariffs, import taxes vs. property taxes, taxes, taxes and taxes.It took over a hundred years for our Supreme Court to twist the words of the Constitution to mean what they wanted it to mean in order to allow much-needed work to get done. Regulating tariffs on commerce, it turns out, meant Congress could build roads to facilitate commerce. See the connection? Neither do I.
Note that this is exactly what you oppose: tortured interpretation of the Constitution for reasons of practicality. First they tried the "post roads" clause, and then when that got nowhere, they fell back on the commerce clause -- and it took fourteen years and two Supreme Courts, but finally they got that twisted meaning accepted as Constitutional:
http://www.tfhrc.gov/pubrds/marapr01/commongood.htm:
Dozens of road bills were introduced over the next 10 to 12 years [after 1905]. Many proposed construction of a national "interstate" highway system with the routes specified in the bills and, in some cases, given names. Some bills involved funding for a specific road. However, most bills proposed variations of Brownlow's federal-aid program, and all met the same fate.
One of the chief objections was constitutional - an issue that had been debated in the early years of the republic without clear resolution until the spread of railroads beginning in the 1830s rendered the issue moot. As the call for better roads grew in the 20th century, many members of Congress still believed the Constitution prohibited a federal role. To get around this objection, sponsors of the "good roads" bills typically linked aid to the delivery of the U.S. mail. This stratagem resulted from Article I, Section 8, of the Constitution, which granted to Congress the power to "establish Post Offices and post Roads." The reference to this authority, it was hoped, would answer any constitutional objections to federal road funding.
Although the "post roads" provision was a convenient reference, the U.S. Supreme Court had previously supported federal involvement in road improvements by citing a different provision of Article I, Section 8: "To regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes." In an 1893 decision, Justice David Brewer noted that "the power to regulate commerce carries with it power over all the means and instrumentalities by which commerce is carried on" (Monongahela Navigation Company v. United States). This ruling and a similar Supreme Court ruling in 1907 effectively ended the debate over constitutionality for all but the most diehard members of Congress.
Note that, if you really think all Supreme Courts are to be distrusted and only the meanings of the original authors are authoritative, you must reject this reasoning and accept that funding our interstate highway system is not a power given to Congress by our Constitution. (You would be in agreement with many members of Congress before 1900, and some after.)
On the other hand, if you think our Supreme Courts are qualified to interpret the Constitution, even though their interpretations may extend Congressional power far beyond what the founders apparently intended, then everything is just fine with our interstates. And every other big federal spending project that the courts haven't nixed.
Take your pick, but be consistent!
:) Re:Weepiness
pudge on 2003-05-15T21:49:26
I note for the record that your interpretation of the commerce clause to allow the government to build roads and bridges is found nowhere within the Federalist Papers.
You say that as though it has some relevance to your point, or mine. Mine is that things like Medicare are not in any way related to, and therefore not implied by, any of the expressed/enumerated powers granted to Congress, but that the interstate highway system is.
That Madison never mentioned it has no bearing, because Madison, to my knowledge, never attempted to limit the scope of the power of interstate commerce regulation. It is therefore not against anything Madison said.
Regulating tariffs on commerce, it turns out, meant Congress could build roads to facilitate commerce.
Since "regulating tariffs" is never mentioned in the Constitution, I don't understand your point. What I do know is that in 1824 (hardly over a hundred years), Justice Marshall asserted that Congress could do more than regulate tarriffs when he said Congress could grant a ferry license to Thomas Gibbons in Gibbons v. Ogden. Yes, the 1893 case established roads fell under the Constitutional power, but there were other Congressional actions and, like the 1824 case, judicial decisions that expanded the power beyond what Madison discussed.
Note that this is exactly what you oppose: tortured interpretation of the Constitution for reasons of practicality.
I see nothing tortured about it, and I've seen no reasonable argument yet that says it is so. Your best argument is "Madison didn't mention it," and that is hardly convincing, for reasons already mentioned.
On the other hand, if you think our Supreme Courts are qualified to interpret the Constitution, even though their interpretations may extend Congressional power far beyond what the founders apparently intended, then everything is just fine with our interstates.
You misunderstand. My concern is not so much with extending beyond intent, but extending contrary to intent. I have been very consistent on this.
My view on this is simple: I believe an interstate highway system is essential to reasonable interstate commerce. This is certainly more true now than it was in 1824. And that only one body is authorized to regulate interstate commerce, therefore only one body is authorized to control these highways.
Interstate highways are necessary and proper for interstate commerce (expressed power), and therefore the federal government may create and maintain and regulate those roads (implied power). I would rather they regulated it as little as possible (such as lifting the speed limit restrictings some years ago), but it has the power to regulate, nontheless.
I feel confident that if Justice Marshall had been around with the advent of the car and truck, he would have agreed. I can't see how it could be said that, in today's age, an interstate highway system is not a necessary and preoper implied power of the expressed power granted in the commerce clause.
I just don't see how one could twist it to say it can't mean that, unless you are going to say the intent of the commerce clause was limited (and you've given no evidence of that), or that the highway system is not "necessary and proper" in a similar manner to Gibbons' ferry license.
Re:Weepiness
jdavidb on 2003-05-15T17:27:31
But anything has trouble scaling over 200 years.
Liberty scales indefinitely.
Re:Constipation
pudge on 2003-05-15T22:54:10
We got rid of your slaves with Amendment 13, and thankfully, the electoral college is still in place. We still reserve SOME power for the states, at least.Re:Constipation
TorgoX on 2003-05-16T01:46:03
The South shall raaahs again! STATES' RIGHTS WHOOOO!Re:Constipation
pudge on 2003-05-16T03:26:42
Right, because it isn't like the Constitution was designed on the basis of broad rights for the states. You just keep thinking that.
Re:interesting quote
TorgoX on 2003-05-16T06:49:45
if you even *made patriotic noises* people looked at you as if you had lost your mind. Needless to say, these people sadden me enough to make me physically sick to my stomachWell, you'll just have to make your patriotic stomach noises LOUDER next time!
