Implied Powers? Clearly Implied Limitations!

April 2013 Feature--Truth Based Logic

Few, if any, implied powers provided to the Federal Government under the Constitution. Very clearly implied limitations on explicitly granted powers.

We would suggest that it is impossible to read the United States' Constitution through, fully in context, and not see that any major implications beyond the clear specifics set down, clearly favor a limitation on, rather than an extension of, the specific functions ("powers") granted to the Federal Government. While this may be counter to what many of you have been taught by theorists in contemporary American education--or promoted by a partisan & unobjective media--we will demonstrate our point with specific reference to Article I, Sections 8, where most of the actual functions entrusted to Congress, are set forth; Section 9, where explicit restrictions on Congress in exercising those functions are set forth, & Section 10, where relevant restrictions on the States, coupled with additional functional delegations to Congress, are delineated.

In addition, please note that the drafters left not the slightest doubt as to the role of Congress with respect to any Federal law. Article I, Section 1, could not be more explicit: All legislative Powers herein granted shall be vested in a Congress of the United States, . . .

For your easy reference, the other Sections referred to, follow in full:

SECTION 8. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

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.

* * * * *

SECTION 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

* * * * *

SECTION 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Functional Symmetry, Not Implied Functions

There is a precision & functional symmetry in the Constitution, which should be apparent even in an inquiry limited to the above three sections. What there is not, is any broad-brush grant of power. Some have claimed such from the "To make all Laws which shall be necessary & proper for carrying into Execution the foregoing Powers," in the last sentence of Section 8; others from the collecting taxes to "provide for . . . the general Welfare," in the first sentence. But the breakdown of grants in the balance of the Section is far too functionally specific to render any suggestion of a general empowerment to meddle in social concerns, via distinct, but unmentioned, functions, anything other than ridiculous. Certainly, with regard to any effort to solve the social or economic problems of distinct groups--the particular, not general, Welfare of special interests;--the implications would be restrictive, not enhancing.

Moreover, consider the implications of the uniform tax provision, in the first sentence of Section 8, in the context of the fourth sentence of Section 9-- which forbids any direct tax but one on a per capita basis, rendering any use of taxation to solve particular individual problems, or level circumstances, impossible--and with that of the sixth sentence in Section 9--intended to prevent efforts to alter the relative economics between the States, via unwanted preferences in exercising certain granted functions. Surely the implication is limitation, rather than expansion, of granted powers. We will address the functional effect of the Sixteenth Amendment, which did authorize taxation based upon income & means from 1913, under the next sub-heading.

The point is equally obvious with respect to a closer look at the implications of the entire Section, in regard to what was intended or implied by the "necessary & proper clause." Consider the precision, with respect to the actual functions granted. If the framers intended "necessary & proper" to be broadly (or liberally), rather than narrowly (or strictly) interpreted, would they have felt any conceivable need to separately delegate the power to establish both Post Offices & post roads? If the Commerce power was intended to permit efforts to reorder aspects of the social order, would they have so carefully defined it in terms of "Commerce with foreign nations, and among the several States, and with the Indian Tribes?" Would anything but a strict (limiting) construction, be suggested by the need to separately grant the power to punish counterfeiting the current coin, after having already granted the powers to coin money & regulate the value thereof?

Note the precise functions intended are spelled out in how Congress may promote progress in science & useful arts; the precision in dealing with the military. It was not seen as adequate, because they expected strict construction, merely to provide for armies & a navy. It was necessary to separately spell out functions for making rules for the government & regulation of the military forces. Obviously this would not have been necessary if the "necessary & proper" clause were intended to be liberally construed. And note how clearly thought out were the functions granted: Army appropriations were limited to two years--a protection against a large standing army;--while there was no such limitation on the Navy, where an extensive & ongoing ship building program would be required. Every word had deliberated purpose.

Clearly Implied Limitations On Federal Functions

While a careful examination of the specific functions granted to Congress--the only body given any role in making Federal Law--will not support a liberal interpretation of the "necessary & proper clause"; a comparison of the language of the three Sections reproduced above, in full context, will clearly support a very restrictive one. Consider, again, the monetary function given to Congress (5th sentence of Section 8) in the clear light of the first paragraph of Section 10, which inter alia forbids States from making anything but gold & silver coin a tender in payment of debts. While this is an explicit limitation on the States, it is an implicit restriction on the Congressional monetary function; one admittedly not being observed since 1933--greatly to the disadvantage of frugal Americans.

Note the fuller effect of Section 10, which spells out limitations on the States. Read it carefully in relation to Section 8. Where Congress is given a function that the States are denied, the Federal Government may correctly be said to preempt the field. There are other limitations on State authority, which can be waived by consent of Congress (Paragraphs 2 & 3), where it is clear that Congress may at its discretion, by refusing consent, preempt a field. (Yet note, also, the escape clause recognized in the last three clauses; very relevant in the face of an invasion over our Southern borders.) Our point is this: If Congress had a general right to preempt any functional field, at its discretion under the "necessary & proper" clause, it would not have been necessary to construct the carefully differentiated language of Section 10.

Now consider, again, Section 9, which consists of various explicit limitations on the functions granted to Congress in Section 8. Note that the restriction on the power to tax, which forbade any direct tax on the people, other than one in proportion to the census--that is a tax precisely equal--per capita--on every one subject to it, was repealed by the Sixteenth Amendment, which permits taxation on incomes & has been interpreted, in effect, to authorize a tax on wealth itself. But the Sixteenth Amendment does not actually touch the clear, additional, implication of the passage in Section 9; that is the obvious reason for the original passage, which is that it is not an acceptable function for the Federal Government to redistribute wealth; to "rob Peter to pay Paul"; to interfere in the relative level of success of different individuals. Congress can now tax, where they could not tax before; but there is still no functional grant to remake society. (And note, also again, the prohibition on preferences between the ports of the different States, in the exercise of previously granted functions--another restriction on the misuse of power.)

This is not offered as a definitive argument for the strict construction that the framers of our written Constitution intended. There are other provisions that we could cite, as well as other relevant documents. Yet, while short, we may perhaps have suggested some arguments you will find useful in the ongoing effort to restore Republics, once considered the birthright of every American.

William Flax

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