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Is the Necessary and Proper Clause either Necessary or Proper? May 30, 2013

Posted by Dr. Robert Owens in Politics.
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2 comments

I want to begin by saying that I believe the Preamble to the Declaration of Independence and the Constitution, with the Bill of Rights included, comprise the most enlightened, ennobling, and beneficial documents ever penned by the hand of man. I also believe that the Constitution afforded the United States the greatest level of freedom and opportunity ever experienced by humanity. This freedom and opportunity in turn released the talents and abilities of the American people to build the greatest nation ever to exist, rising from thirteen states exhausted and impoverished from years of war into a prosperous and powerful nation which by the end of the twentieth century stood upon the world stage as the uncontested sole superpower.

Simplicity is the essence of genius while over-simplification is the essence of fraud. In a picture perfect example of the truism “The victors write history” what we have been taught concerning the writing and ratification of the Constitution is actually a politically slanted version of the truth. This highly patrician account is also an example of over-simplification.

We are taught that the Articles of Confederation were an abject failure because they were too weak. Shay’s Rebellion scared the venerable leaders who had led and won the Revolution. George Washington and Co. came back from retirement to once again save the nation writing an “almost” divinely inspired document. There was only token dissent to the immediate acceptance of this tablet from the mount by some shadowy unknown people collectively called the “Anti-Federalists.” However after some well-written articles by future leaders called the Federalists, We the People overwhelmingly voted for ratification and the Constitution immediately ushered in the blessings of liberty and opportunity for all rescuing the United States from anarchy and stagnation. Amen.

This is a thumb-nail sketch of what our thumb-nail sketch type history education once delivered as gospel in American public schools. Today, those lucky enough to live in a school district that still includes American History are instead treated to the progressive’s litany of American crimes and debauchery. However, as our constitutionally limited government exceeds all previous limits, is either of these offerings good enough? Americans from all walks of life watch in stunned disbelief as the Federal Government on steroids swallows the economy, health care, the financial system, major manufacturing, the insurance industry, and anything else that doesn’t move fast enough to get out of the way. Can the States themselves be far behind?

How did this come about? How did a government born in the shackles provided by a written constitution designed to limit its power swell into the all-powerful OZ?

Quite simply it was through the deception of the Progressives evolving our Constitution from a rock-solid framework limited to what it actually said to a living document that is constantly being re-interpreted. Thus without amendment, without debate, without a vote our leaders have nudged us from land of liberty to the centrally-planned surveillance state which today sends the IRS after their enemies, leaves our borders open, our opportunities closed, and our sons and daughters manning hundreds of garrisons around the world.

One of the key tools in this century long quest to transform America has been the use of the so-called elastic clauses in the Constitution. One major clause used to accomplish this is found in Article I, Section 8, Clause 18 which states, “The Congress shall have 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 in any Department or Officer thereof.”

There are several ways to look at this clause and its meaning. First we need to look at what is called “Original Intent,” or what those who wrote the clause meant. Then we will look at what those who ratified the Constitution thought it meant. Finally we will look at how the Progressives interpret and re-interpret their favorite clause.

The necessary and proper clause was added to the Constitution by the Committee of Detail with no debate. Nor was it the subject of any debate during the remainder of the Convention. The reason why this clause was neither attacked nor defended during the Convention becomes clear from the statements of the Framers during the ratification process. James Wilson, one of the most eloquent defenders of the Constitution, a signer of the Constitution, and one of the first justices of the Supreme Court, said that this clause gave the federal government no more or other powers than those already enumerated in Section 8 of Article I and that “It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” The Framers felt as if the clause was merely saying that which had been delegated could be used.

During the ratification debates this clause was a hot topic. Brutus proclaimed that through the Necessary and Proper Clause “This government is to possess absolute and uncontrollable power, legislative and judicial, with respect to every object to which it extends…” the debate raged back and forth between the Federalists and the Anti-Federalists in newspapers, pamphlets, and on the floor of the ratification conventions. Eventually the Federalists won the day and the Constitution was ratified. The result? The interpretation of this clause that was generally accepted by the ratification conventions was that it added no new or expandable powers to the federal government.

Since the New Deal era, Progressives have argued that the Necessary and Proper Clause expands the powers of the federal government to any it deems necessary and proper. In other words the federal government has all the power necessary to do whatever they want about anything they want. The executive department has been using this clause to grab power since Hamilton used it to found the First bank of the United States in 1791. The Supreme Court has been stretching this clause since they ruled in Mcculloch v. Maryland, 17 U.S. 316 (1819) to give themselves the power of judicial review. This expansionist interpretation has been upheld by the Supreme Court on numerous occasions and is today the accepted opinion amongst the political-media-corporate establishment.

It is my belief that if we have a better understanding of where we came from and how we got here that we would have a better understanding of where we are. If we understand where we are perhaps we will see the way to get back to where we wanted to go when we started: back to a limited government of the people, by the people and for the people.

Knowing how a simple clause meant to say that what had been delegated could be used has evolved into near totalitarian power shows us that just as the present use of the Necessary and Proper Clause is neither necessary nor proper.  And thus a government of the people, for the people and by the people has been hijacked and become something else.

No matter what we have been taught, no matter even what the reality was the reality is that the Constitution replaced the Articles of Confederation as the supreme law of the land. The announced purpose of the Constitution’s writing and adoption was to provide a limited government which respected both the rights of the States and the people. Since this was the stated and accepted purpose of the Constitution after two centuries and several decades can We the People deny any longer that it has failed?

Failing and failure are two different things. Everyone who has ever succeeded has failed. It is falling forward from that failure which ultimately brings success. If the Constitution has failed what do we do now? Where’s the reset button.

Dr. Owens teaches History, Political Science, and Religion.  He is the Historian of the Future @ http://drrobertowens.com © 2013 Robert R. Owens drrobertowens@hotmail.com  Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens / Edited by Dr. Rosalie Owens

 

 

The Great Civil Debate February 4, 2011

Posted by Dr. Robert Owens in Uncategorized.
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4 comments

It is admitted by all except the liberal media and left-wing ideologues jockeying for political and partisan advantage, neither the tenor nor the content of our public discourse had any bearing upon the tragedy in Tucson.  Nevertheless there have been calls for a return to civility in our speech.  I heartily second that motion, believing as I do that civility should always be the hallmark of discussion among ladies and gentleman.  However, that is not the topic of this discourse.

I seek to call my fellow Americans not to a more civil debate but to The Great Civil Debate.  This is the debate we need if we’re to move beyond the gridlock of right versus left, the vitriol of Democrat versus Republican, and the hysteria of a coming conservative authoritarianism or a looming socialist one.  The debate I’m calling for is not an innovation in American History.  Instead it’s a re-play of a previous event and the sequel to our preliminary event: the debate over the ratification of the Constitution.  What we need now is a debate over the relevance of the Constitution with regard to the actions of the Federal Government.

From the day the Constitution was signed, September 17, 1787 to the day it was ratified June 21, 1788, this country rang with the impassioned speeches and stirring essays of both the opponents and the proponents of this our founding document.  Today is the day and now is the time for the debate to once again stir the hearts of the nation, will we have a limited government, personal liberty and free enterprise or are we going to have something else?  There’s no greater admirer of the United States Constitution then the author of this article.  None can be found who gives more veneration to the Framers or who pays more attention to its words.

However, after 222 years there’s no one more convinced that we’ve reached an historical impasse.  The Constitution is still in force.  It has been amended twenty seven times, but it has not been supplanted.  Yet, it’s all but ignored by the Federal Government.  Our continually expanding federal bureaucracy tips its hat to the commerce clause or uses the elastic necessary and proper clause as a political fig leaf to do whatever they want.  This being the current situation this article is in fact an intervention.  It’s well known that until a problem is recognized there’s no hope for a solution.  Therefore, since every other commentator I’m aware of dances around the 800 pound gorilla in the middle of the room, I’ll acknowledge the obvious and take the afore-mentioned primate as my dancing partner and say what must be said: the Constitution has failed.

This is not to say that it is a flawed document, a vehicle for ulterior motives, or that it has always been a failure.  This is not to say that I’m offering or advocating for a replacement.  As I mentioned earlier, there is no greater admirer of the United States Constitution then the author of this article.  What I do mean to say is that this great document which birthed and sustained a limited government for more than two hundred years has now become effectively irrelevant.

The proof for this sad statement can be seen in the unguarded rhetoric of the movers and shakers of our now unlimited government.  When asked where in the Constitution a warrant for mandated health care could be found one congressman answers, “I don’t worry about the Constitution.”  Another congressman says, “There’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do. It means what we say it means.”  When asked a question about the constitutionality of health care legislation former Speaker of the House Nancy Pelosi’s response is, “Are you serious?”

And we have a President who writes that the Constitution is not “…static but rather a living document, and must be read in the context of an ever-changing world.”  No wonder a liberal pundit finds it odd that a candidate for Congress would promise to consider the constitutionality of legislation saying, “that certainly isn’t the job of Congress. They should just pass whatever they want and let the courts worry about it later.”  These examples are joined by volumes of others, which show that not only is the Constitution irrelevant to these leaders it has become so accepted as irrelevant that they no longer even have to pay lip service to the integrity of the document they’ve sworn to uphold and defend.

We need a reset button.  We need to return to limited government.  But how do we get there from here?  The Tenth Amendment which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” has been emasculated through court rulings.  The legal system has moved from original intent to precedent.  From what the words mean to what can we say the words mean.  This tsunami of change is led by the Progressives who believe that we need to evolve past the ideas and procedures devised and set down by the Framers and create a New America. A transformed America founded not on the equality of opportunity but on the equality of outcome.  These big government leaders in both parties seek not mere equal justice for all but social justice, not free enterprise but central planning.

This intervention sadly begins with the assessment based upon the current reality that the Constitution has failed.  However, it ends on a note of hope.  We’re the descendants of the Pioneers, the offspring of the Framers, and we can do this.  We can find a way within the legal framework of the Constitution itself to press that reset button.  We can solve this problem, because we’re Americans and we’re a can-do, get-it-done people.  But if we refuse to admit there’s a problem we’ll be doomed to suffer silently in the shadows as our beloved city on the hill becomes a lost dream in the twilight of freedom.  Instead let’s start The Great Civil Debate. How can we restore limited government, ensure liberty and revitalize free enterprise?  How can we get there from here?  Keep the faith.  Keep the peace.  We shall overcome.

Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College. He is the author of the History of the Future @ http://drrobertowens.com View the trailer for Dr. Owens’ latest book @ http://www.youtube.com/watch?v=_ypkoS0gGn8 © 2011 Robert R. Owens dr.owens@comcast.net Follow Dr. Robert Owens on Facebook.

 

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