Given that the legitimate powers of the federal government are constrained only to specific areas described in the Enumerated Powers detailed in Article 1, Section 8 of the Constitution, it is not surprising that the violation of this limited authority is falsely justified by corruptions to various clauses within those Enumerated Powers.
The three clauses commonly corrupted and abused to falsely validate the overreach of federal authority within those Enumerated Powers are:
1) The General Welfare Clause, indicated in the preamble of the enumerated powers:
"The Congress shall have 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;..."
2) The Interstate Commerce Clause, within those enumerated powers.
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"
3) The Necessary and Proper Clause (Elastic Clause), the final enumerated power in Article 1, 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."
As a result of the deliberate abuse of these clauses, an accurate understanding of their true original intent must be established.
GENERAL WELFARE CLAUSE:
General Welfare is not itself a specifically enumerated power of the Constitution, but rather a general reference in the preamble to the enumerated powers that follow. The General Welfare clause does not grant Congress the power to legislate for the general welfare of the country, nor to expend whatever money it cares on any "general welfare" but rather has applicability as determined by the enumerated powers that follow. Unfortunately this clause has been so abused by Progressive ideology that we have a major breach of federal authority and drain on the economy from the "Welfare" state, specifically named to falsely this clause in the Constitution, and yet dedicated to individual welfare, not "general" at all.
The so-called "general Welfare" introductory preamble preceding the enumerated powers of Article 1, Section 8:
Each one of the enumerated powers that follow this introduction begin with the "To", indicating that this preceding introductory paragraph is entirely and exclusively applicable "TO" those subsequent specific powers, with the conclusion of the above paragraph being a semicolon to further indicate that general authority is linked to and contingent upon the enumerated powers.
Madison and Hamilton directly address the general Welfare clause, and specifically describe the claim that it is any sort of general plenary power as an "absurd" "misconstruction".
Madison, in Federalist #41, addressed the abuses of Article 1, Section 8 we now commonly see today, before ratification and describes this claims as "misconstruction":
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.
Madison even directly addresses that "semicolon" which I previously referenced, indicating:
The "general phrase", above, which is referring to the general Welfare clause, is the introduction of the powers, a "preamble" and entirely applicable to, and "qualifying" that general expression by those enumerated powers, or "particulars", which follow.
Without this being the case, those enumerated powers which follow would serve no valid purpose, being entirely superfluous, as all those powers, and more, would be assumed in a boundless field of power.
- Thomas Jefferson
Abuse of the Commerce Clause has been so severe that it was a major contributing factor to the Civil War, with Congress having violated over decades its federal obligation to to maintain a regular and unbiased commerce between the States, by instituting a series of trade embargoes and regulations preferential to the North, and debilitating to the South. Today we have been so habituated to the long-growing corruption of the Commerce Clause that we often forget it's intent was to remove animosities between the several states as a result of trade advantages allowing one state to benefit at the cost of other states, thereby creating a cause for warfare among the States. That purpose was not to give the federal government any authority within those States.
The original meaning of "regulate" in "regulate interstate commerce" was to "regularize", make regular, or make uniform. The first affirmation of the intent of the Commerce Clause is indicated the preamble to the enumerated powers which concludes with, " but all Duties, Imposts and Excises shall be uniform throughout the United States."
Further indication of the intent of the Commerce Clause is found in Article 1, Section 9, Prohibitions to Congress:
Here the obvious intent is to prohibit the federal government from legislation preferential to any one state, and thereby more harmful to others by relative comparison. The only legitimate application of "duties" would be on cargo entering the country, with the further application of duties from interstate traffic being prohibited.
This is further supported by Article 1, Section 10, "Limits on States" themselves:
This not only prohibits any states from any imposts or duties without the Consent of Congress, but also removes any profit incentive from the practice by having any proceeds from those that are necessary beig the property of the U.S. Treasury. Thus, there is further evidence that the ability to "regulate" commerce is intended to prohibit any imbalance between the states - again to "make regular".
The historical record establishes that the word “commerce”, as used by the Founders during the framing and ratification process , as the exchange of goods between between point A and B. In effect Congress was solely given the power in question so as to to insure free trade among the States --- an uninhibited transportation of goods among the states and prevent one state from taxing another state’s goods as they passed through its borders.. or again "make the trade regular".
This is a far cry from how Congress now abuses the Commerce Clause in a way to inhibit or even prohibit trade commerce.
Gonzales v. Raich, 545 U.S. 1 (2005) hinted at the original intent of the Commerce Clause in its decision:
The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.
The real problem resides not just with the state legislation, but with the expansion of federal legislation, when it really had no authority to apply that legislation under the "interstate commerce" clause, and a falsely claimed authority beyond that, when in truth the federal government has no constitutional authority to apply legislation within the territory of the States themselves, not anywhere, under any terms.
Madison clarified the original intent of Interstate Commerce in Federalist #42:
“A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.”
Once again we see the intent of the Interstate Commerce clause being to "make regular" (or "uniform") the commerce between the states, so as to prohibit hostility between them, even preventing a cause for war. Most certainly the "Civil War" was indeed a "serious interruption of the public tranquility". However the federal government's actual actions leading up to the Civil War were quite contrary to the Founder's intent, with these grossly violating both Congress' constitutional limitations and obligations, and are still creating conflict within the country to this day, even now.
Prior to reaching the "first century" of U.S. history, Congress was already abusing its obligation to "make trade regular" between the states by introducing a series of tariffs and embargoes over more than 20 years that were prejudicial against the South's agriculture, and preferential to budding North's industry, particularly textiles, giving rise to the Civil War.
However the real abuse of the Interstate Commerce clause began after the Civil War opened the floodgates, with the Interstate Commerce Act (1887), and then gross abuse later under the Progressive's expansion with the New Deal (1936) under Roosevelt.
NECESSARY & PROPER CLAUSE (Elastic Clause)
The Necessary and Proper Clause, also known as the "Elastic Clause", is the last of the enumerated powers, and specifically indicates its applicability to only those "foregoing Powers", previously enumerated:
"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."
Given the clear and specific reference of applicability being to those "foregoing Powers", the Necessary and Proper clause can not be viewed as any sort of broad, plenary power legitimizing Congress to act on anything it deems to be both "necessary" and "proper" for the nation. . Many recognize the Necessary and Proper Clause as being the primary means by which the Executive and Legislative branches have validated their gross overreach of power, resulting in the restriction of rights.
The first test of the Necessary and Proper Clause came in 1791, with Alexander Hamilton's proposal of a national bank, as Secretary of the Treasury under Washington. Hamilton defended the bank's legitimacy under the Constitution, indicating that:
“If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.”
Notice that Hamilton is relying in this argument on the specific negative prohibitions (i.e. "forbidden) to the federal government, rather than the positive limit of the specifically enumerated powers. Hamilton is relying on the federal government's authority to collect taxes, and to expend those taxes in on necessary ends, results in the necessity of a national bank not relying on any private bank.
Thomas Jefferson, Edmund Randolph and James Madison were unified in opposition to a national bank both because they did not believe it would be beneficial and because it was not “necessary and proper.” Jefferson submitted an official cabinate paper to President Washington, at Washington's request:At President Washington’s request:
“I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition. The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution."
“[The Constitution authorizes Congress] to lay taxes to provide for the general welfare of the United States, that is to say, ‘to lay taxes for the purpose of providing for the general welfare.’ For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the union.”
“They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.”
“Certainly no such universal power was meant to be given them."
Today we suffer under the burden of Congress believing it is no longer limited by the enumerated powers, nowhere recognizing the limitations of those specific powers, instead doing whatever it deems to be "necessary and proper", essentially whatever evil they please, even resulting in the gross breach and denial of our freedoms.
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