Why Originalism Matters (Part VI)

Necessary and Proper Clause Example:

The meaning of “necessary” is incorrectly changed to “convenient” by both Alexander Hamilton (Bank argument) and Chief Justice John Marshall (McCulloch v. Maryland, 1819). Madison argued that by doing so would yield the federal government with limitless and boundless power that would come at the expense of the people and states. Ultimately, he was right. Marshall defended his decision by saying in no terms does the McCulloch decision yield the federal government unlimited power and Hamilton, of course, argued his stance of limited (enumerated) Federal Government powers quite differently in the Federalist Papers. Hamilton and Marshall wrongly accepted the idea a minor change to the current or interpreted definition of “necessary” would result in any federal power grab. However, the Necessary and Proper Clause has been used in conjunction with the Commerce Clause to allow the largest single power grab in our history to cover anything that is economic including a backyard garden, crime, banks, insurance, and civil rights (instead of using the Fourteenth Amendment). By moving away from textual originalism, the Constitution is worthless (meaningless) because it places no limits on federal government enumerated powers.

Are the departments of Agriculture and Education necessary? Our Founders did not think so because they were not enumerated powers. What about a department of Energy for modern times? Since these departments have been created agriculture, education, and energy costs have gone up higher than inflation (this violates the property rights of every citizen). In fact, education has gotten worse when compared to the rest of the World. Can the federal government handle these issues better than states? Apparently not. What about other departments that promote welfare such as Health and Human Services or Housing and Urban Development. Once again health and housing costs are going up faster than inflation. What about government sponsored healthcare such as ObamaCare, Medicaid, and Veterans Affairs? These programs are failing big time and their future liabilities are unsustainable. None of these departments are necessary and they are not enumerated powers and therefore should be controlled by the states.

What about the necessity of taxing people and companies to redistribute wealth to other citizens and companies? This is not allowed by the Constitution. The government may take property from private citizens (taxes, without just compensation is allowed through the Sixteenth Amendment), but the federal government is not allowed to redistribute wealth to other private persons. The federal government can only use taxes for public purposes such as those things enumerated in the Constitution: military, infrastructure (roads, bridges), etc. How “public” in the Constitution can also mean “private” illustrates why applying textual originalism is needed. Keep in mind, takings are usually enforced against poor citizens and given to wealthy citizens or companies. It is the opposite of welfare and liberals support both conflicting policies.

Remember, a law can be necessary but at the same time be “improper”. James Madison provides numerous examples of this type of law. Most Justices ignore the “proper” aspect of the necessary and proper clause when reviewing laws under this provision. For instance, in Schechter Poultry v. United States the Court ruled that because of the Great Depression code enforcement of some industries may be necessary, but it is not proper and therefore unconstitutional. A crisis does not provide the federal government additional constitutional grants of power (The Court would reverse course in just a few years after the Schechter decision). Our Founders were smart and anticipated the need for extra-constitutional authority in the Tenth Amendment: “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.” The uniqueness of the Constitution from other world governments was the separation of powers between the State and Federal Government known as federalism. This was the most important check and balance in our system to prevent tyranny and to keep the rights of the people unfettered. However, because of the expansion of the Necessary and Proper and the Commerce Clauses the Tenth Amendment has basically become moot. Most judicial scholars only view the Tenth Amendment as a truism with no other enforcement value. Of course, under this theory, the entire Bill of Rights can be considered a truism. The Bill of Rights consists of Rights that no one would contest (a truism), but they must be enforceable! Because of these bogus theories the States do not have much power while the Federal Government is continually expanding and growing in size. This is opposite to what James Madison said in Federalist 45 where he states government powers are few and limited but state powers are infinite.

Emergencies and Crisis:

Justices have used emergencies and crisis to warrant making unconstitutional measures constitutional. War and the Great Depression have led to some of the worst decisions in U.S. history. Unfortunately, the precedent from these emergencies and crisis are still good law today. The First Amendment’s “clear and present danger” doctrine is still used but we are no longer at war. All of the FDR Court’s economic decisions are still law but we are no longer in a Great Depression. The interment of the Asian race is still law (Korematsu) even though WWII has been over for 75 years. None of this would happen if Justices were consistent and interpreted laws using the original textual meaning regardless of the circumstances.