Misunderstanding Necessary and Proper

In this video, you’ll see an example of a pretty common “rebuttal” to those of us who argue that the federal government is authorized to exercise only those powers which have been delegated to it.

This gentleman builds his position mostly off this statement, near the beginning of the video:

“the 10th Amendment prohibits the federal government from doing anything that isn’t specifically spelled out in the Constitution – end of argument”

He couldn’t be more wrong.

The 10th Amendment doesn’t prohibit the feds from doing anything that “isn’t specifically spelled out in the Constitution” as this person claims, or as he’s saying other people claim. The 10th prevents the feds from exercising any power that hasn’t been delegated to it by We the People.”

While it may seem like an academic distinction, it certainly is not.  The Founders debated this issue in depth and wanted to make sure that the federal government wasn’t hamstrung, and unable to deal with changes the future would obviously bring.  So they called upon the Common Law doctrine of “principals and incidents” to ensure that government could adapt.

This is found in Article 1, Section 8 of the Constitution, where Congress is empowered to make laws that are “necessary and proper” for carrying out the other listed powers of the Constitution.

What does this mean? It’s really quite simple.

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Stockholm Syndrome for States?

Russell D. Longcore wrote a a fantastic article at LewRockwell.com on how the 50 states often act like slaves to the federal government. Here’s an excerpt: According to Wikipedia, the “Stockholm Syndrome” is a psychological response sometimes seen in abducted hostages, in which the hostage shows signs of loyalty to the hostage-taker, regardless of the…

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Ohio to Consider National Health Care Nullification

Following the lead of Arizona, Florida, and Michigan, in recent weeks legislators from Louisiana and Georgia announced that they were planning on introducing resolutions for State Constitutional Amendments that would allow the people of those states to effectively opt-out of any future national health care plan. And now, Ohio joins them. According to our friends…

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Getting the Supremacy Clause Wrong

An article in today’s New York Times discusses the recent growth of state-level resistance to a future national health care plan. In 2010, voters in Arizona will have a chance to approve a state constitutional amendment that would effectively ban national health care in that state. Legislators in Florida and Michigan have already introduced similar…

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A Compromise on Health Care?

Writes Phyllis Tilson Piotrow: Let those states that oppose allowing their citizens to choose a public plan opt out of the public plan and rely on existing private or cooperative insurance plans. Let those states that want their citizens to have a non-federally subsidized public option cooperate with the relevant federal agency to participate in…

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Chronology Matters

Chronology is critical when it comes to interpreting the US Constitution.  Recently, I have heard attacks on the 10th movement claiming that Article I section 8 trumps the 10th amendment, because it provides for the ‘general welfare’ of the nation and so “of course the Federal health care program is constitutional”. I had a chance…

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