The Conservative Constitution, part II, the meat, potatoes, and side of veg.
Article I, Section 8 defines the specific powers and authority of the Congress, in far more depth than the general principles lain down by sections one through seven. This section is the basis of the Enumerated Powers doctrine embraced by many conservatives: they argue, had the Founders wanted Congress or the people, or any faction within the Republic for that matter, to have more power or authority than the specific ones defined in Section 8, they would have said so.
The primary power of the Congress is to tax and to spend, "for the common Defense and general Welfare of the United States." Liberals in their well-meaning naivete, broaden this power to include spending for the general good of the Citizens as well, but nothing could be further from the truth, as seen by conservatives. The States are the intended beneficiaries of taxation, and it is for their welfare and common defense that the Congress was empowered to act, until well into the 20th century, when the 14th Amendment and a radical new government entered its misconstrual of federalism into a requirement of law.
The Congress is given the power to borrow money and to regulate commerce between the States and with foreign nations, including the Native American nations.
The power to regulate immigration, and to provide common rules for bankruptcies (in addition to the more general power to regulate commerce) is granted.
The power to coin Money, to regulate its value both with respect to commerce within and among the united States and with foreign countries and currencies, and to fix standard weights and measures (pounds, liters, temperatures, kilometers, and so on) are specified, all under the general power of regulating commerce.
The power to grant patents and copyrights, in order "to Promote the progress of Science and useful Arts," is granted to the Congress, preserving the House of Patents which had existed prior to the Continental Congress' assembly, and leaving open to the Congress to determine which Arts are useful and which are not.
The power to establish post offices and post roads, is granted generally, though the specific power to establish a postal Service is not. We will talk about the necessity and propriety of a postal Service near the end, when I comment on the "necessary and proper" clause.
The power to establish (and by implication, disestablish) "Tribunals inferior to the supreme Court," which is itself established by Article III, is granted to the Congress, a necessary check on the power of the Executive and the Judiciary, which might otherwise be tempted to establish or disestablish Courts of their own design, and for their own purposes. We will discuss the Military Tribunals the previous Executive designed and attempted to establish when I comment on Article III.
The Congress is given the power to define and punish "Piracies and Felonies committed on the high seas, and offenses against the Law of Nations." This is the third separate power of Congress to form an united foreign policy, the first being the power to regulate international commerce, and the second being Congress' power to regulate immigration. As it happens, this is the first time the Law of Nations was specifically mentioned in writing, in delegating powers to a government, and it is significant that the whole power was granted to Congress, instead of to the President, who it will be seen, is given most of the powers necessary to treat with foreign nations, and to execute the Law of Nations. It is also significant that the first power to enforce laws is granted to the Congress, in the case of the Law of Nations.
The power to declare War, to grant letters of Marque and Reprisal (i.e., to hire pirates for the service of the Nation) and to make Rules (not distinct in this instance, from regulations) concerning Captures on Land and Water, and the power to raise an Army and a Navy. The power to raise an Army is specifically limited by requiring that no appropriation for an Army be longer in term than two years. No such limitation is placed on raising a Navy; indeed, the power to maintain a Navy is granted without limitation, indicative that the Army was to be raised in time of war or emergency, but that the Navy should be established and maintained for an indefinite term. The power to make rules and regulations for the government of the land and naval forces follows from these powers, but is also specified to the Congress.
The power "for calling forth the Militia [we now know the militia as the National Guard] 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," is granted to the Congress. This grant reserves to the States the power to regulate, arm, and discipline those parts which are not in service of the united States, i.e., those parts which contemporarily serve each of the States, and the power to appoint Officers for their respective militias. This section also includes the requirement for the States to train militia members uniformly, under the regulations set forth by Congress, granting the Congress the power to regulate the conduct of State governments directly in this specific manner.
The Congress is also granted exclusive legislative power over whatever place the States agree to set aside as the national Capital (Washington, D.C.) and a limitation of 10 square miles was set upon the size of that grant. The Congress was also granted legislative authority over whatever other places should be set aside for purchase from the States, by their legislatures, for "needful buildings," such as post offices, ports, forts, magazines and arsenals, mints and patent-houses, and so on. The need for a national bank was not specified, nor was the power to purchase land from the States to build one granted specifically, but we will discuss the First and Second Banks of the United States, and the Federal Reserve system, under the "necessary and proper" clause.
Finally, the general power to make "all laws necessary and proper" to form and do the work of a united federal government, or "any Department or Officer thereof" is granted to the Congress. The fact that laws must be both necessary and proper requires of the Congress a great deal of diligence in specifying laws and regulations, that they be narrowly tailored to the specific power granted either to itself, or to the department or officer of the United States (say, the Presidency or the Secretary of State or Commerce) and not so general nor so specific that they are either redundant, or that they outstrip the powers granted to that department or officer.
Many argued that the formation of a national bank exceeded both necessity and propriety, even though the Congress is generally granted the power to regulate commerce and to collect and spend taxes, which monies generally speaking, need a place to go to and to come from. Many also argued that the power to tax ought to have been limited to collecting excises, imposts and duties on foreign trade, and on trade between the several States, but Publius argues in "the Federalist," that foreign trade will not necessarily keep pace with the population of the United States, "which must be the general measure of the public wants."
It is the public wants (requirements) that the power to provide for the "general welfare" all the way at the top, is delegated to give Congress the power to provide for. The necessity and propriety of collecting and spending money for individual citizens' requirements (such as establishing a national bank, or a national retirement or medical-care system, or a postal Service to be employed in the post offices) are not specified, and are left open to future politicians and future Congresses to determine, to establish or disestablish as they deem necessary and proper. Most conservatives agree, that the Founders never envisioned such grasping overreach by Congress, that it would extend necessity and propriety, and indeed the "general welfare," to giving money directly to citizens, by hiring a national postal Service, patent officers, or bankers, or even indirectly by means of a general retirement or medical-care system, and argue that without such a specific grant of power, such a law greatly exceeds and usurps the Federal mandate.
There are also specified limits on the power of Congress, which I will address in full in the essay on the Bill of Rights, as those first ten Amendments are rightly seen as limitations on the power of government generally, and the Congress specifically.
The primary power of the Congress is to tax and to spend, "for the common Defense and general Welfare of the United States." Liberals in their well-meaning naivete, broaden this power to include spending for the general good of the Citizens as well, but nothing could be further from the truth, as seen by conservatives. The States are the intended beneficiaries of taxation, and it is for their welfare and common defense that the Congress was empowered to act, until well into the 20th century, when the 14th Amendment and a radical new government entered its misconstrual of federalism into a requirement of law.
The Congress is given the power to borrow money and to regulate commerce between the States and with foreign nations, including the Native American nations.
The power to regulate immigration, and to provide common rules for bankruptcies (in addition to the more general power to regulate commerce) is granted.
The power to coin Money, to regulate its value both with respect to commerce within and among the united States and with foreign countries and currencies, and to fix standard weights and measures (pounds, liters, temperatures, kilometers, and so on) are specified, all under the general power of regulating commerce.
The power to grant patents and copyrights, in order "to Promote the progress of Science and useful Arts," is granted to the Congress, preserving the House of Patents which had existed prior to the Continental Congress' assembly, and leaving open to the Congress to determine which Arts are useful and which are not.
The power to establish post offices and post roads, is granted generally, though the specific power to establish a postal Service is not. We will talk about the necessity and propriety of a postal Service near the end, when I comment on the "necessary and proper" clause.
The power to establish (and by implication, disestablish) "Tribunals inferior to the supreme Court," which is itself established by Article III, is granted to the Congress, a necessary check on the power of the Executive and the Judiciary, which might otherwise be tempted to establish or disestablish Courts of their own design, and for their own purposes. We will discuss the Military Tribunals the previous Executive designed and attempted to establish when I comment on Article III.
The Congress is given the power to define and punish "Piracies and Felonies committed on the high seas, and offenses against the Law of Nations." This is the third separate power of Congress to form an united foreign policy, the first being the power to regulate international commerce, and the second being Congress' power to regulate immigration. As it happens, this is the first time the Law of Nations was specifically mentioned in writing, in delegating powers to a government, and it is significant that the whole power was granted to Congress, instead of to the President, who it will be seen, is given most of the powers necessary to treat with foreign nations, and to execute the Law of Nations. It is also significant that the first power to enforce laws is granted to the Congress, in the case of the Law of Nations.
The power to declare War, to grant letters of Marque and Reprisal (i.e., to hire pirates for the service of the Nation) and to make Rules (not distinct in this instance, from regulations) concerning Captures on Land and Water, and the power to raise an Army and a Navy. The power to raise an Army is specifically limited by requiring that no appropriation for an Army be longer in term than two years. No such limitation is placed on raising a Navy; indeed, the power to maintain a Navy is granted without limitation, indicative that the Army was to be raised in time of war or emergency, but that the Navy should be established and maintained for an indefinite term. The power to make rules and regulations for the government of the land and naval forces follows from these powers, but is also specified to the Congress.
The power "for calling forth the Militia [we now know the militia as the National Guard] 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," is granted to the Congress. This grant reserves to the States the power to regulate, arm, and discipline those parts which are not in service of the united States, i.e., those parts which contemporarily serve each of the States, and the power to appoint Officers for their respective militias. This section also includes the requirement for the States to train militia members uniformly, under the regulations set forth by Congress, granting the Congress the power to regulate the conduct of State governments directly in this specific manner.
The Congress is also granted exclusive legislative power over whatever place the States agree to set aside as the national Capital (Washington, D.C.) and a limitation of 10 square miles was set upon the size of that grant. The Congress was also granted legislative authority over whatever other places should be set aside for purchase from the States, by their legislatures, for "needful buildings," such as post offices, ports, forts, magazines and arsenals, mints and patent-houses, and so on. The need for a national bank was not specified, nor was the power to purchase land from the States to build one granted specifically, but we will discuss the First and Second Banks of the United States, and the Federal Reserve system, under the "necessary and proper" clause.
Finally, the general power to make "all laws necessary and proper" to form and do the work of a united federal government, or "any Department or Officer thereof" is granted to the Congress. The fact that laws must be both necessary and proper requires of the Congress a great deal of diligence in specifying laws and regulations, that they be narrowly tailored to the specific power granted either to itself, or to the department or officer of the United States (say, the Presidency or the Secretary of State or Commerce) and not so general nor so specific that they are either redundant, or that they outstrip the powers granted to that department or officer.
Many argued that the formation of a national bank exceeded both necessity and propriety, even though the Congress is generally granted the power to regulate commerce and to collect and spend taxes, which monies generally speaking, need a place to go to and to come from. Many also argued that the power to tax ought to have been limited to collecting excises, imposts and duties on foreign trade, and on trade between the several States, but Publius argues in "the Federalist," that foreign trade will not necessarily keep pace with the population of the United States, "which must be the general measure of the public wants."
It is the public wants (requirements) that the power to provide for the "general welfare" all the way at the top, is delegated to give Congress the power to provide for. The necessity and propriety of collecting and spending money for individual citizens' requirements (such as establishing a national bank, or a national retirement or medical-care system, or a postal Service to be employed in the post offices) are not specified, and are left open to future politicians and future Congresses to determine, to establish or disestablish as they deem necessary and proper. Most conservatives agree, that the Founders never envisioned such grasping overreach by Congress, that it would extend necessity and propriety, and indeed the "general welfare," to giving money directly to citizens, by hiring a national postal Service, patent officers, or bankers, or even indirectly by means of a general retirement or medical-care system, and argue that without such a specific grant of power, such a law greatly exceeds and usurps the Federal mandate.
There are also specified limits on the power of Congress, which I will address in full in the essay on the Bill of Rights, as those first ten Amendments are rightly seen as limitations on the power of government generally, and the Congress specifically.