Post by Peter Franks Post by Josh Rosenbluth Post by Josh Rosenbluth Post by Josh Rosenbluth Post by Peter Franks Post by Josh Rosenbluth
Post by Josh Rosenbluth
Under your reading, there isn't a single law which the N&P
permits beyond that which was already permitted by the
foregoing powers. If that were the case, the N&P Clause is a
redundancy that can be stricken from the Constitution. That
can't be the case.
It is a redundancy. Glad you finally saw the light.
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.
Isn't 'powers reserved to the people' not a superfluous statement?
Superfluous with what?
superfluous: adj. Being beyond what is required or sufficient.
Superfluous with the fact that all power comes from the people.
The statement is not required to be part of the text of the
constitution, it adds nothing, ergo superfluous.
When I refer to a redundancy, I mean the text of the Constitution is
redundant with other text in the Constitution. The text should be
interpreted such that never occurs.
In your interpretation of a redundancy - the text is redundant with
the implied understanding of the Constitution - I think the text
stands as is since it clarifies that implied understanding.
It doesn't clarify the text, though. Instead of using as a
clarification, you (et alii) are using it as an expansion.
In short, you daisy-chain multiple clarifying causes to justify an
expansion of power that doesn't exist.
Your expansive interpretation of 'necessary and proper' is misapplied
to the 'general welfare' clause, which is also a clarifying
(non-expansive clause). This is improper.
I cannot parse any of your above statements.
General welfare is a limitation on the taxing power, it is not a
power in and of itself.
"To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers,..."
I agree again. But we still disagree because I believe there must be
at least one law authorized by the N&P Clause carrying into execution
a power that is not permitted by the power alone.
N&P enables the creation of an Air Force exclusively for the purposes of
providing for the common defense of the United States. That is an
example of the purpose and application of N&P. Sans N&P, it could
justifiably be argued that the creation of an Air Force would require a
Air travel wasn't known to the framers. The Air Force is authorized by
the power to create the Army and Navy (the entirety of the Armed Forces
at the time).
Post by Peter Franks Post by Josh Rosenbluth
The canonical example is a law that makes it illegal to steal the
mail. That law carries into execution the power to create Post
Offices, but is not authorized by the power to create Post Offices alone.
Your example is flawed, no such authority is delegated.
Post by Peter Franks
And here is
where you start to season your hat for your next meal.
8.5 To coin Money, regulate the Value thereof, and of foreign Coin, and
fix the Standard of Weights and Measures;
8.6 To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;
If we use your (flawed) rules of application, 8.6 is superfluous as
punishments would be implied by 8.5.
But we know that 8.6 isn't superfluous; rather it is the explicit
delegation of the authority to punish. 8.7 has no such delegation of
Chief Marshall considered this precise argument in McCulloch:
"The right to enforce the observance of law by punishing its infraction
might be denied with the more plausibility because it is expressly given
in some cases. Congress is empowered to provide for the punishment of
counterfeiting the securities and current coin of the United States
[...]. The several powers of Congress may exist in a very imperfect
State, to be sure, but they may exist and be carried into execution,
although no punishment should be inflicted, in cases where the right to
punish is not expressly given."
But then Marshall rejects the argument based on Congress's ability to
punish those who steal the mail. This ability is recognized by
consensus (hence my Amazing above).