From: caress@thebe.ecn.purdue.edu (Peter N Caress)
Subject: Re: Freedom, Social Responsibility, Individual Responsibility
Summary: [very long... sorry!]
Organization: Purdue University Engineering Computer Network
Date: Wed, 16 Dec 1992 19:25:10 GMT

In article <1992Dec14.231331.10926@klic.rain.com> keithl@klic.rain.com (Keith Lofstrom) writes:

[snip]

>Yes, that is what the Constitution is for.  The founders designed a
>government to do those things, and described it in some detail.  They
>did NOT give this government carte blanche;  most of the Constitution
>describes RESTRAINTS on it's actions, such as the 10th amendment:
>
>    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.
>
>If the government had the power to do anything it wanted, then it would
>be awfully silly for the founders to include this clause, no?  What are
>the powers delegated to the Constitution?  Well, read section 8.  It's
>longer than I wish to quote directly, but in summary: the government can
>borrow and coin money, tax, run courts, a patent office, a post office,
>and a military, and declare war.   That's IT.  There is nothing in there
>about personal safety, charity, disaster relief, education, undeclared
>war, substance abuse, or the environment.  All these things were known
>about in 1789.  They were not included because there were not supposed
>to be there, as the copious writings of the founders attest. 
>

In addition to the powers listed above, there are three important clauses 
(all contained in Article 1, Section 8): 

1) The Commerce clause, listing Congress's power "To regulate Commerce
   with foreign Nations, and among the several States, and with the
   Indian tribes..." 

This gives Congress enormous power. Some civil rights bills (such as one
preventing hotels from not allowing blacks to check in) have been held 
Constitutional because of this clause. But in general, a modern industrialized 
economy between the states causes laws passed under the Commerce clause 
to have an enormous impact. 


2) The Necessary and Proper clause, giving Congress power to "make all
   Laws necessary and proper for carrying into Execution the foregoing 
   Powers [of Congress] and all other powers vested by this Constitution
   in the Government of the United States..." 

In McCullogh v. Maryland, Maryland argued that this clause only gave
Congress power to pass laws relating to its enumerated powers. But Chief 
Justice Marshall delivered the Court's opinion that the clause
gave broad powers which 
did not have to be specifically enumerated, so long as these powers were 
necessary for executing the listed powers. The Court thus ruled that the 
U.S. Bank (which Maryland argued was unconstitutional) was Constitutional, 
since a bank was a reasonable necessity of a government. 


3) The General Welfare clause: "The Congress shall have the power To lay
and collect taxes... to pay the Debts and provide for the common Defence 
and general Welfare of the United States;..." 

The $50 question is "What does providing for the general welfare mean?" 
The issue came up in United States v. Butler (1936), in which a New
Deal agricultural subsidy bill was challenged as unconstitutional. Justice 
Roberts, who wrote the Court's opinion, commented on the interpretation 
of the clause: 

"Madison asserted it amounted to no more than a reference to the other
powers enumerated in the subsequent clauses of the same section;... the 
power to tax and spend  for the general national welfare must be confined 
to the enumerated legislative fields committed to the Congress.... Hamilton, 
on the other hand, maintained the clause confers a power separate and 
distinct from those later enumerated, is not restricted in meaning by the
grant of them, and Congress consequently has a substantice power to tax 
and to appropriate, limited only by the requirement that it shall be 
exercised to provide for the general welfare of the United States. Each
contention has had the support of those whose views are entitled to weight." 

The Court opinion declines to "review the writings of public men and 
commentators or discuss the legislative practice," but concludes that 
the Hamiltonian view is correct: "It results that the power of Congress 
to authorize expenditure of public moneys for public purposes is not 
limited by the direct grants of legislative power found in the Constitution." 
But the court continues that the power to spend for the general welfare is 
not a completely general power. Nor does it give Congress power to spend 
for a local welfare, as distinguished from national welfare. (Incidentally, 
the Court never ruled if the subsidy violated this clause or not; instead it 
ruled that the subsidy was intended to regulate agriculture production and 
that this purpose was unconstitutional, and thus the subsidy was uncon-
stitutional). 

Anyway, I further recall reading in my casebook that the Court has 
consistently held that while the power to spend for the general welfare
is constitutional, the power to flat out pass laws for the "general 
welfare" is not among Congress's powers. 

Another case of note regarding the general welfare clause is City of
Cleveland v. United States (1945). In the Court opinion, Justice Roberts 
writes: 

"The appellant contended that the United States Housing Act of September 
1, 1937, is unconstitutional because Congress has no power under the 
Constitution to establish low-cost housing projects." He then summarizes 
the lower court's opinion that the act was constitutional since although 
bad housing is a problem of local origin, its effects are widespread and 
may eventually menace the general welfare. The court then summarily dismisses 
the challenge: "Challenge of the power of Congress to enact the Housing
Act must fail."

Many of the items listed by Keith Lofstrom above as being unconstituional 
(such as disaster relief and charity) probably _are_ constitutional 
given such broad interpretations of the general welfare clause and the
commerce clause. 

>If you want to give the government more powers, write some new amendments.
>The government is not entitled by the Constitution to grant itself more
>powers.  To take powers without jumping the Constitutional hurdles is
>at best lazy and at worst leads to totalitarianism.

Given the fact that the Supreme Court has decided that certain laws passed 
by Congress
are within the Constitutional bounds of the 3 clauses I listed above, 
I don't think any Constitutional hurdles have been jumped. I certainly 
don't think we're on the road to fascism. 

Mind you, I personally don't agree with these incredibly broad inter-
pretations. In particular, I favor the Madisonion interpretation of the general 
welfare clause a lot more than the Hamiltonion one. 

But I am trying to show that simply ticking off some of the enumerated powers
without mentioning the three clauses above and any associated case law, and
then using this to assert that the current government is operating unconsti-
tutionally, is intellectually sloppy. 

[a little more deleted from Keith's posting]
>Keith
>-- 
>Keith Lofstrom         keithl@klic.rain.com       Voice (503)-520-1993
>KLIC --- Keith Lofstrom Integrated Circuits --- "Your Ideas in Silicon"
>Design Contracting in Bipolar and CMOS - Analog, Digital, and Power ICs

-- Peter Caress


Xref: sparky alt.society.civil-liberty:7000 alt.politics.usa.misc:675 alt.politics.usa.constitution:1320 alt.activism:19729 soc.rights.human:4596