July 29, 2012

Review Corner

The Necessary and Proper Clause has been widely misunderstood. Some have called it the "elastic clause," and suggested that it granted Congress vast authority that Congress otherwise would not have. But leading Federalists, including Madison and Hamilton, asserted the contrary. Even John Marshall, the Ratifier who as Chief Justice was accused of taking an overly-broad view of the Necessary and Proper Clause, specifically affirmed that it was a mere statement of what the rule would have been if the Clause had been simply omitted.
Robert G. Natelson filed amicus curiae briefs on ObamaCare with Dr. Dave Kopel, who spoke on NFIB v Sibelius at Liberty on the Rocks. (If you have not watched the videos Ari Armstrong took, you are missing something.)

He is also the author of The Original Constitution, an all night house party for Constitutional Originalists. Natelson goes through the Constitution, clause by clause, and clarifies it based on the law books of the time in addition to secondary papers like Madison's notes, ratification documents and The Federalist Papers.

It was an entertaining read (you know who you are, it might not displace Harry Potter), and I look forward to hanging on to it for reference. It is a superb way to go "one step deeper" than just the original text. Natelson is a lover of liberty and brilliant legal scholar -- he is not imputing his beliefs on the text but rather expanding understanding based on originalist knowledge.

The Founders would have seen permanent federal land ownership for unenumerated purposes as subversive of the constitutional scheme. This was partly because the government was to enjoy only enumerated powers and partly because extensive federal land ownership would render many people dependent on the government.
[...]
The other six twentieth-century alterations, however, embodied ideals fundamentally at variance with those that had inspired the Founders. Their addition to the Constitution significantly changed the systemís design.

The Sixteenth Amendment of 1913 ended the apportionment rule for the income tax. While in theory this did not otherwise expand the power of the federal government, it helped to realize two of the Foundersí fears: that some groups would be able to use the tax system to plunder other groups, and that the central government could impose a "direct tax" on citizens of a state without regard to the population of their state. The Seventeenth Amendment, ratified the same year, provided that the people, rather than the state legislatures, henceforth would elect United States Senators. There were strong arguments for such a change, but there is little question that it impaired the constitutional balance by weakening the voice of state governments.

The Eighteenth Amendment (1919), which established national prohibition of alcoholic beverages, was repealed only a few years later by the Twenty-First (1933). During the time Prohibition was in effect, however, federal agents became involved in routine law enforcement in a way they never had before--and Americans became inured to the practice.


Five stars.

Review Corner SCOTUS Posted by John Kranz at July 29, 2012 10:39 AM

This comports with my longstanding belief that American constitutional rule ended at the beginning of the last century, not this one - and that the Sixteenth Amendment was the lynchpin.

What is less clear, however, is why it happened then? Why was the government content within its limitations, at least economically, for over a century before seeking to expand its power? The passing of the Founders and their memories is one explanation. Anything more concrete than that?

Posted by: johngalt at July 29, 2012 3:55 PM

I'm going with two clever parlimentarians: Speaker Thomas Brackett Reed made the house "efficient" and turned the reins over to TR; LBJ made the Senate work and took the reins himself.

These subverted Congress' avoidance of harm through inaction just in time for the Progressives.

Posted by: Jk at July 29, 2012 8:36 PM | What do you think? [2]