Title: The Commerce Clause and the concept of limited power [Video] Source:
liveleak.com URL Source:http://www.liveleak.com/view?i=94e_1282845672 Published:Aug 26, 2010 Author:Reason TV; posted by star53 Post Date:2011-06-21 15:38:02 by GreyLmist Keywords:Constitution, Commerce Clause, Originalism Views:51 Comments:3
The heart of this debate is whether we accept that the Constitution exists to limit the power of the federal government. It’s that basic.
I think we all accept and believe and hope that the Constitution exists to limit the power of the federal government, but it is not that basic at all. It appears that making wars for oil as with Iraq, Afghanistan and Libya, would fall under the Commerce clause, would it not?
The question remains though, as to whether the Commerce clause gives the POTUS the dictatorial power to declare war without the consent of congress.
The CC certainly wipes the 10th Amendment off the map, doesn't it?
It is vital to understand that there is no truth without discernment and no wisdom without the truth. What then is “faith” but an effort to confound truth and wisdom?
It appears that making wars for oil as with Iraq, Afghanistan and Libya, would fall under the Commerce clause, would it not?
I would say, No, it definitely would not. Congress is not empowered to regulate the Commerce of foreign nations by resource-war force, just management- regulations of their trade here by tariffs and such.
The question remains though, as to whether the Commerce clause gives the POTUS the dictatorial power to declare war without the consent of congress.
No, it doesn't do that. The POTUS has no real power at all to declare war, with or without the consent of Congress, and the Commerce Clause only pertains to Congress.
The CC certainly wipes the 10th Amendment off the map, doesn't it?
No, it doesn't do that either. The 10th Amendment, though, can and does override the Commerce Clause when Congress tries to define that clause to mean whatever they want it to mean beyond the scope of their enumerated powers. I'll look around for more sources to clarify this issue.
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"They're on our left, they're on our right, they're in front of us, they're behind us...they can't get away this time." -- Col. Puller, USMC
________________________________________________________________________________ I would say, No, it definitely would not. Congress is not empowered to regulate the Commerce of foreign nations by resource-war force, just management- regulations of their trade here by tariffs and such.
________________________________________________________________________________ I believe the Commerce Clause applies to State, Interstate, and International Commerce. If the U.S. perceived, rightly or wrongly, that Iraq, Afghanistan,or Libya were threatening the supply of oil to the U.S. due to Internal strife in those countries, it WOULD affect the Commerce of the U.S. and would justify going to war, for the oil, under the CC.
Yes, the POTUS does have the right to go to war without the consent of Congress. See www.justice.gov/olc/warpowers925.htm _________________________________________________________________________
No, it doesn't do that either. The 10th Amendment, though, can and does override the Commerce Clause when Congress tries to define that clause to mean whatever they want it to mean beyond the scope of their enumerated powers. I'll look around for more sources to clarify this issue.
In my surfing, though I can't quote a source at this point, I seem to remember that precedents have been established whereby, the Constitution CAN be interpreted to mean exactly to include whatever they want beyond the scope of their enumerated powers. Aha, I found it!
The same may be asserted also of all the nonenumerated powers included in the authority expressly given
"to make all laws which shall be necessary and proper for carrying into execution the specified powers vested in Congress, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof."
It is impossible to know what those nonenumerated powers are, and what is their nature and extent, without considering the purposes they were intended to subserve. Those purposes, it must be noted, reach beyond the mere execution of all powers definitely entrusted to Congress and mentioned in detail. They embrace the execution of all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. It certainly was intended to confer upon the government the power of self-preservation. Said Chief Justice Marshall in Cohens v. Bank of Virginia, [Footnote 6]
"America has chosen to be, in many respects and to many purposes, a nation, and for all these purposes her government is complete; for all these objects it is supreme. It can then, in effecting these objects, legitimately control all individuals or governments within the American territory."
He added, in the same case:
"A constitution is framed for ages to come, and is designed to approach immortality as near as mortality can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it is sure to encounter."
That would appear, then, to be a most unreasonable construction of the Constitution which denies to the government created by it the right to
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employ freely every means, not prohibited, necessary for its preservation and for the fulfillment of its acknowledged duties. Such a right, we hold, was given by the last clause of the eighth section of its first article. The means or instrumentalities referred to in that clause, and authorized, are not enumerated or defined. In the nature of things, enumeration and specification were impossible. But they were left to the discretion of Congress, subject only to the restrictions that they be not prohibited, and be necessary and proper for carrying into execution the enumerated powers given to Congress, and all other powers vested in the government of the United States or in any department or officer thereof.
And here, it is to be observed, it is not indispensable to the existence of any power claimed for the federal government that it can be found specified in the words of the Constitution, or clearly and directly traceable to someone of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and infer from them all that the power claimed has been conferred. Such a treatment of the Constitution is recognized by its own provisions. This is well illustrated in its language respecting the writ of habeas corpus. The power to suspend the privilege of that writ is not expressly given, nor can it be deduced from any one of the particularized grants of power. Yet it is provided that the privileges of the writ shall not be suspended except in certain defined contingencies. This is no express grant of power. It is a restriction. But it shows irresistibly that somewhere in the Constitution power to suspend the privilege of the writ was granted, either by someone or more of the specifications of power or by them all combined. And that important powers were understood by the people who adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in anyone of those enumerated, is shown by the amendments. The first ten of these were suggested in the conventions of
Page 79 U. S. 535
the states, and proposed at the first session of the first Congress, before any complaint was made of a disposition to assume doubtful powers. The preamble to the resolution submitting them for adoption recited that the
"conventions of a number of the states had, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added."
This was the origin of the amendments, and they are significant. They tend plainly to show that, in the judgment of those who adopted the Constitution, there were powers created by it, neither expressly specified nor deducible from anyone specified power, or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government, or out of the sovereignty instituted. Most of these amendments are denials of power which had not been expressly granted, and which cannot be said to have been necessary and proper for carrying into execution any other powers. Such, for example, is the prohibition of any laws respecting the establishment of religion, prohibiting the free exercise thereof, or abridging the freedom of speech or of the press.
And it is of importance to observe that Congress has often exercised, without question, powers that are not expressly given nor ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story in his Commentaries on the Constitution, resulting powers, arising from the aggregate powers of the government
It is vital to understand that there is no truth without discernment and no wisdom without the truth. What then is “faith” but an effort to confound truth and wisdom?