Con Law - Lesson 1 "The Preamble"

[Flash]

I am curious if you have ever actually read the US Constitution because the federal government was clearly given the power to provide for the general welfare. While one could argue that one can promote the general welfare without providing for it, it's rather hard to provide for it without promoting it.

Yes, I read it. Have you read the parts I included that put limits on federal powers? While Congress has the power to provide for the general welfare that does not mean it can do whatever it wants under that provision that it does not have the delegated (or implied) power to do.

And, the courts have never interpreted that provision to give Congress unlimited powers--it is basically tied to the power to tax and spend and allows Congress to spend for items not specifically delegated but not control those functions. That primarily applies to powers reserved to the states such as education. Congress can give money to the states for educational purposes but it cannot carry out that function.

President Trump believed it was in the general welfare to prohibit travel from Muslim countries. In your interpretation he would have the unlimited power to make that decision. But, the courts ruled it was unconstitutional.

 

[Jarod]

Much of what is in the preamble is included in the later document.

We the People of the United States, - defined in Art IV section 2
in Order to form a more perfect Union, - Art IV, Art VII
establish Justice, Art III
insure domestic Tranquility, Art IV section 4
provide for the common defense, Art I, Art II, Art IV
promote the general Welfare, Art I Section 8 Paragraph 1 It is specifically mentioned as a power of Congress

and secure the Blessings of Liberty to ourselves and our Posterity, - a wishful outcome for all of the above but the ability to unsecure anything is in Art V
do ordain and establish this Constitution for the United States of America." Art VII

Yes… I plan on getting there with future posts but I agree it’s almost all mentioned again with specific grants of power. The preamble however explains why and what the Fed and States are going to share power.

 

[Flash]

I just wondered if with a little education some might see the errors of their ways.

It is not clear what you are trying to say. Is the power of Congress unlimited if they are acting for the general welfare? I'm not sure how your description applies in practice.

 

[Jarod]

It is not clear what you are trying to say. Is the power of Congress unlimited if they are acting for the general welfare? I'm not sure how your description applies in practice.

I do not think Congress ever has unlimited power. We have to get to the meat and the Bill of Rights to see some of the limits, but it’s clear at the get go the Federal government has the power to act in an effort to provide for the general welfare of The people.

 

[Flash]

Why include a meaningless sentence? The Courts have said you are wrong. There is significant meaning in the preamble, its a roadmap for how to read the remainder. I agree it does not carry force of law, but it is significant to show the intent of the founders. I do not believe any word in the Constitution is meaningless.

The intent of the framers varied considerably. Hamilton would favor almost unlimited government power allowing federal power control over the states and choose a monarch for life. Madison, the "father of the Constitution" who wrote most of the document (and Bill of Rights) would limit federal power to those delegated in the Constitution and sought to prevent majority rule.

 

[Flash]

Why include a meaningless sentence? The Courts have said you are wrong. There is significant meaning in the preamble, its a roadmap for how to read the remainder. I agree it does not carry force of law, but it is significant to show the intent of the founders. I do not believe any word in the Constitution is meaningless.

The courts have struck down many laws of Congress and executive actions. None have ever interpreted the general welfare clause as giving unlimited powers to Congress.

 

[Poor Richard Saunders]

Of course there are limits. See Article II, Section 9.

The ONLY limits are the ones listed in Art II Section 9. If it is not denied Congress specifically in Section 9 then anything to do with general Welfare is allowed. What specifically about general welfare do you think is denied in section 9?

There are also clearly limits on federal taxation: "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken" which resulted in the income tax being declared unconstitutional because it was not apportioned.

Limits on the types of taxation is not the same thing as limits on the level of taxation. Congress was free to impose a 10,000% tax on all imported goods in 1797. It would have been legal but political suicide. All income taxes were not declared unconstitutional in Pollock v Farmers. It was a very narrow ruling that income taxes on income from real estate and property was a direct tax since it taxed the property. Wages could still be subject to income tax. The 16th amendment made this distinction moot.

--it was Hamilton who argued there were no limits.

"Madison argued that Congress had no independent power to tax and spend in pursuit of its conception of the general welfare; rather, Madison contended, the constitutional meaning of the phrase “general Welfare” is defined and limited by the specific grants of authority in the rest of Section 8."

If you are going to quote from another author you should at least give them credit. The rest of the paragraph pretty much destroys your argument.

https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/751

Madison argued that Congress had no independent power to tax and spend in pursuit of its conception of the general welfare; rather, Madison contended, the constitutional meaning of the phrase “general Welfare” is defined and limited by the specific grants of authority in the rest of Section 8. The Supreme Court did not weigh in on this longstanding debate over the scope of the federal taxing and spending powers until 1936, in United States v. Butler (1936), when it sided with Hamilton. Ever since, the law has been that Congress can use the Taxing Clause without tying such use to another of its constitutional powers.

The reality is that the Supreme Court agreed with my interpretation and said yours is not the correct reading of the document.

 

[Flash]

I do not think Congress ever has unlimited power. We have to get to the meat and the Bill of Rights to see some of the limits, but it’s clear at the get go the Federal government has the power to act in an effort to provide for the general welfare of The people.

The framers did not believe the Bill of Rights were needed because they did not think Congress had the power to abridge any of those rights; thus, believing in very limited powers.

Providing for the general welfare is very subjective. Could the courts every strike down congressional legislation designed to provide for the general welfare?

 

[evince]

It’s a Russian folks


It has no idea what it’s talking about


TAG


is a fake human

 

[Jarod]

The intent of the framers varied considerably. Hamilton would favor almost unlimited government power allowing federal power control over the states and choose a monarch for life. Madison, the "father of the Constitution" who wrote most of the document (and Bill of Rights) would limit federal power to those delegated in the Constitution and sought to prevent majority rule.

I agree about those who wrote the document, the whole Constitution was a compromise, but I’m also considering what the Founders agreed to and including the state legislatures that agreed to the document and what they understood they were agreeing to.

 

[Jarod]

The courts have struck down many laws of Congress and executive actions. None have ever interpreted the general welfare clause as giving unlimited powers to Congress.

I agree

 

[Flash]

If you are going to quote from another author you should at least give them credit. The rest of the paragraph pretty much destroys your argument.

https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/751

The reality is that the Supreme Court agreed with my interpretation and said yours is not the correct reading of the document.

It did not destroy "my" argument but Madison's view. It sided with Hamilton. However, since the courts have struck down many congressional laws and executive acts they have never accepted the unlimited powers of the general welfare clause making your reading of the Constitution in incorrect. How can there be unconstitutional laws if Congress has unlimited power?

Why does the Constitution enumerate all the powers of Congress if it has unlimited powers to do whatever it wants?

Has Congress ever passed an unconstitutional law it thought was in the general welfare; or, is that an impossibility since it has unlimited powers?

 

[Jarod]

The framers did not believe the Bill of Rights were needed because they did not think Congress had the power to abridge any of those rights; thus, believing in very limited powers.

Providing for the general welfare is very subjective. Could the courts every strike down congressional legislation designed to provide for the general welfare?

Any basis for your claim about “the framers”?

Yes, I think the Courts COULD strike down any legislation.

 

[Flash]

I agree

Then I am missing the point of your OP. If the general welfare clause does not give Congress unlimited power and the Constitution still imposes many limitations on Congress, what are you saying about the general welfare clause as it applies to real situations?

 

[Dutch Uncle]

Get some professional help dude. Your TDS is at insane levels.

Says the oath-breaker supporting a tyrant overthrowing the Constitution of the United States of America.

Now go into your usual bending-the-truth-like-a-pretzel routine.

Two years from now, if Trump is convicted of his multiple crimes, will you still be defending White America to save it from "the Mud People", Chief?

Will you still be defending a pedophile who tried to overthrow our nation by force?

 

[Dutch Uncle]

Then I am missing the point of your OP. If the general welfare clause does not give Congress unlimited power and the Constitution still imposes many limitations on Congress, what are you saying about the general welfare clause as it applies to real situations?

Not a lawyer. What has SCOTUS said about the General Welfare clause? The Promote the Common Defense clause?

The Declaration of Independence isn't law either. How many authoritarian assholes want to ignore that too?

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

 

[Poor Richard Saunders]

The courts have struck down many laws of Congress and executive actions. None have ever interpreted the general welfare clause as giving unlimited powers to Congress.

And no court has ever ruled that Congress has no power to provide for the general welfare. So basically we are just arguing about the limits of that power.

I think we have concluded it is restricted to not violating restrictions under the rest of the Constitution and it can only provide for the general welfare using tax/spend policies. That leaves us with a rather broad range of what Congress can do.

 

[Jarod]

Then I am missing the point of your OP. If the general welfare clause does not give Congress unlimited power and the Constitution still imposes many limitations on Congress, what are you saying about the general welfare clause as it applies to real situations?

I’m saying that they have some, but not unlimited power with regards to the general welfare clause.

 

[Poor Richard Saunders]

It did not destroy "my" argument but Madison's view. It sided with Hamilton. However, since the courts have struck down many congressional laws and executive acts they have never accepted the unlimited powers of the general welfare clause making your reading of the Constitution in incorrect. How can there be unconstitutional laws if Congress has unlimited power?

Why does the Constitution enumerate all the powers of Congress if it has unlimited powers to do whatever it wants?

Has Congress ever passed an unconstitutional law it thought was in the general welfare; or, is that an impossibility since it has unlimited powers?

I never said they had unlimited power. Many laws don't deal with general welfare so would have nothing to do with the general welfare clause.
You are free to have your opinion, you are not free to argue that it is somehow the prevailing legal argument.

 

[Flash]

Any basis for your claim about “the framers”?

Yes, I think the Courts COULD strike down any legislation.

Sure, the history of the Bill of Rights was that the Anti-Federalists did not favor the new Constitution because there was nothing guaranteeing certain basic rights. As a compromise, the founders agreed to write some amendments protecting those rights in return for supporting the ratification.

That resulted in 12 amendments and ten of those were ratified between 1789 and 1791. One of the original Bill of Rights was not ratified until 1992 (which is essentially moot).