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.
The Constitution specially mentions that the Congress is authorized, for example, to build post offices. But, there’s nothing in the Constitution that specifically mentions buying land for those buildings, or hiring labor to build them. And, there’s nothing in there that specifically mentions hiring mail carriers, or buying trucks to deliver the mail either.
The doctrine of incidental powers allows the government, under the necessary and proper clause, to deal with these and other issues. Without this clause, the government would be stuck trying to build post offices without being able to hire labor. “Necessary and proper” also includes things such building barracks for the army, buying or making ships for the Navy, and the like.
Two main conditions are required for something to be “necessary and proper.” The law or power must be 1) directly applicable to the main, enumerated power (some would say that without it, the enumeratd power would be impossible to exercise in current, common understanding). 2) lesser than the main power.
This was done to ensure that 1) government powers could adapt to modern times, and 2) new government powers would always be restricted to carrying out the enumerated functions.
Because the commentator in this video has absolutely no understanding of this basic constitutional principle, he feels the need to make a sarcastic attack on the Constitution itself.
But, when you start out with an absurd, or just plain ignorant, assumption on the nature of Constitutionally-delegated powers (like the person in this video does), you’ll likely end up with a warped and idiotic rebuttal to limits on federal power.
Latest posts by Michael Boldin (see all)
- Getting it Wrong: James Madison’s 1830 Letter on Nullification - October 18, 2017
- A One-Track Mind: Most Lawyers on Nullification - October 14, 2017
- “Few and Defined,” not “Anything and Everything.” - October 9, 2017