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Showing posts with the label The Constitution

The Importance of the Word "Expressly" in Constitutional Interpretation

The tenth amendment to the United States Constitution reads: "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." When this amendment was being drafted, the "states' rights" advocates kept putting the word "expressly" in before delegated. Madison kept taking it out. The reason he did so is that he thought the federal government should have the power to do what was not expressly delegated to it, but which was only implied in its expressly delegated powers. As a result, what passed was an ambiguous compromise: the states' rights people could say the amendment meant what they thought it should, and that "expressly" was implied. The "consolidationists" could interpret it their way, in which it meant the federal government could do anything that aided it in achieving the ends the Constitution explicitly set for it. ...

Madison on the "Necessary and Proper" Clause in the U.S. Constitution

Madison's commentary (reproduced below) is interesting. And it is underscored by the following fact: During the drafting of the Bill of Rights, people kept slipping "expressly" into the tenth amendment, and Madison kept taking it back out. Article I section 8 was deliberately vague, and Madison meant to keep it that way! The clause was meant to be understood as, "Do whatever you really have to do, but try to keep it within limits, OK?" Getting a constitution drafted was contentious and tricky business. Whenever an issue was particularly difficult to reach consensus upon, the preferred solution was, "Write it up in a vague manner, and leave it for others to sort out." In any case, here is Madison, from Federalist 44: 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 EXPRESS...

Liveblogging Madison and Jefferson: The Confederation Congress and the Constitution

As I've noted before , I've found the argument that the U.S. Constitution was illegal as it did not conform to the Articles of Confederation a little curious when put forward by fans of the Articles. After all, the Articles themselves were pretty darned illegal per the previous constitution under which the colonies existed. But what did the Confederation Congress make of this "illegal" constitution making activity? Let's see: "A heated debate took place in Congress before it was agreed that no amendments would be added to the text of the Constitution. Congress would remain neutral [as to the value of the 1787 constitution as presented to it]... and send the Constitution on to the states without directly endorsing it... the congressional resolution... expressed unanimous agreement to that procedure." -- Madison and Jefferson , p. 165 So, the Confederation Congress, the governing body of the Confederation under the Articles, was absolutely fine lett...