Limited government or national government

Robert Sheridan rs at
Sat Mar 31 08:18:39 PDT 2012

Perhaps, and I appreciate the kind response, but there go the Bank, internal improvements, the end of the Lochner Era's activist conservative Old Court, the NLRA, protections against massive abusive child labor, protection of men and women in the workplace, Social Security, and whatever I've left out.  I intentionally omit equal rights protections because, of course, we do have an amendment.

Seems to me that it's a bit too late to turn the clock back to pre-M'Culloch days simply because the losing argument in M'Culloch remains preferred by some...

Reminds me of the notion that  no bad idea ever completely goes away...



On Mar 31, 2012, at 7:17 AM, Jon Roland wrote:

> The answer is no branch, because the Constitution does not establish the proposition that Congress shall have general power to act on problems that are national in scope. Proponents of that mistaken notion often cite to "Resolution VI" in the Virginia Plan that federal power should be construed to reach all cases involving the “general interests of the Union,” those to which the “states separately are incompetent” and those affecting national “harmony.” However, like the rest of the Virginia Plan, and other such working proposals, it was not embodied in the final proposed Constitution and should not be invoked as an interpretative guide. For further discussion of this see Kurt T. Lash, 'Resolution VI': National Authority to Resolve Collective Action Problems Under Article 1, Section 8, Illinois Public Law Research Paper No. 10-40, July 25, 2011. 
> As for the Necessary and Proper clause, it should be kept in mind the further restrictive phrase, that such powers be for "carrying into execution the foregoing powers", and "carrying into execution" only meant the effort of performing official duties, not doing whatever might be thought conducive to getting some desired outcome. If the effort was not sufficient, there was no authority to proceed further.
> The only procedure that can expand federal power beyond what is contained in the Constitution, strictly construed as to powers, is the Article V amendment process. Court decisions are not constitutional amendments, and court doctrines are not laws that anyone has the duty to obey. Judicial decisions apply only to the parties to each case. For everyone else they might support expectations, but not obligations.
> On 03/31/2012 04:17 AM, Robert Sheridan wrote:
>> Which branch of government, and under what circumstances, has the power to declare that a problem is national in character, degree, or scope, and thus subject to federal creative and regulatory power, as opposed to strictly local, meaning state power?
> -- Jon
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