Introducing The WSJ To James Madison

In an editorial yesterday extolling Judge Vinson's decision striking down the health bill, the Wall Street Journal wrote:

Judge Vinson introduces ObamaCare to Madison and Marshall.

[. . .] Federal Judge Roger Vinson opens his decision declaring ObamaCare unconstitutional with that citation from Federalist No. 51, written by James Madison in 1788. His exhaustive and erudite opinion is an important moment for American liberty, and yesterday may well stand as the moment the political branches were obliged to return to the government of limited and enumerated powers that the framers envisioned.

Perhaps the Wall Street Journal needs an introduction to James Madison. From Federalist 44:

The sixth and last class consists of the several powers and provisions by which efficacy is given to all the rest.

1. Of these the first is, the "power 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."

Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the substance of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the form of the provision is improper. But have they considered whether a better form could have been substituted?

There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms "necessary and proper"; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.

Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "expressly" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of construction or implication. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not expressly granted.

Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same.

(Emphasis supplied.) "First principles" indeed.

Speaking for me only

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    I'll have to look.... (5.00 / 2) (#1)
    by ruffian on Wed Feb 02, 2011 at 10:34:35 AM EST
    did the WSJ editorial page come out against TARP as a violation of the "limited and enumerated powers that the framers envisioned" ?

    I just find it laughable for a mouthpiece of the business community to be for limited government. Even without the backstop of industry bailouts, Federal spending accounts for a huge part of business income. There are no bigger hypocrites on earth.

    Don't forget that the WSJ is (5.00 / 0) (#2)
    by inclusiveheart on Wed Feb 02, 2011 at 11:07:38 AM EST
    now a Murdoch paper.  Always, keep that in mind when you read it.  

    The WSJ Editorial Page (none / 0) (#4)
    by cal1942 on Wed Feb 02, 2011 at 11:40:49 AM EST
    was terrible before Murdoch.  But the stench of Murdoch alone makes it still worse.

    Yes, true. But I think that on (none / 0) (#5)
    by inclusiveheart on Wed Feb 02, 2011 at 11:51:04 AM EST
    the whole there was probably less intentional fabrication before they became a part of a conservative propaganda company.

    Integrity paging the WSJ, inegrity paging the WSJ (5.00 / 0) (#3)
    by Dadler on Wed Feb 02, 2011 at 11:19:01 AM EST
    Silence.  Infinite silence.

    Great post in this area as usual, BTD, always appreciated.

    The part of the 10th Amendment they (none / 0) (#6)
    by Radix on Wed Feb 02, 2011 at 12:08:42 PM EST
    always forget.

    "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."

    From my perspective, it's quite obvious the framers granted "the people" the ability to add to their lot via the legislation, either locally or nationally, as they saw fit.

    Legal question? (none / 0) (#7)
    by Radix on Wed Feb 02, 2011 at 12:14:21 PM EST
    Have the legal eagles here looked at the, Militia act of 1792 and Act for the Relief of Sick Disabled Seamen of 1798. From my non-legal perspective, it seems clear that the framers had no issue with requiring private citizens to purchase products from private sources, nor did they feel that taxing folks for the sole purpose of providing health care to them, was against the constitution.

    You are referring, I suppose (none / 0) (#12)
    by Peter G on Wed Feb 02, 2011 at 09:55:52 PM EST
    to the Act of May 8, 1792, section 1, requiring every able-bodied male to join the militia and in support of that role, "within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder"?  As for the suggested analogy to the 1798 Act, this comment is interesting.

    Excellent. Query: BTD, when (none / 0) (#8)
    by oculus on Wed Feb 02, 2011 at 01:20:16 PM EST
    did you first read any portion of the Federalist papers?  

    Contrasting the Constitution with the Articles (none / 0) (#10)
    by BobTinKY on Wed Feb 02, 2011 at 03:15:08 PM EST
    of Confederation on the issue of power of COngress to act is essential to understanding the necessary & proper clause.  Many of those at the Constitutional Covention had taken part in authoring the Articles and they knew of the shortcomings of that form of federal government. That they then included other language in the COnstitution demonstrates pretty convincingly the extent to which they were seeking to empower the new federal government.

    That said, I put nothing past the current Supreme Court lineup, they have a demonstrated proclivity to ignore precedent and answer questions that are not even present in the case before them. When HCR comes to the Court for review anything could happen.