Are national parks constitutional?
Emsworth:
Quote from: jimrtex on October 08, 2005, 01:42:40 AM
So Hamilton was wrong?
Hamilton's interpretation was at one extreme, Madison's at another. I suggest that the appropriate construction of the clause lies in between, closer to Hamilton's. Anything that is within the sphere of the states does not fall under the general welfare clause.
Otherwise, many of the other enumerated powers would be redundant.
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Before the ratification of the First Amendment, it could have done so.
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Roads certainly existed, and the Framers specifically refused to give Congress power over all roads.
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If the Smithsonian is set up as a private trust, yes. Otherwise, it may not, as there is no plenary federal power to expend outside D.C. (However, there is a plenary state power, so Virginia may fund it.)
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A park is not a needful building. "Forests, parks, ranges, wild life sanctuaries ... are not covered by Clause 17." (Collins v. Yosemite Park)
jimrtex:
Quote from: Emsworth on October 08, 2005, 07:23:17 AM
Quote from: jimrtex on October 08, 2005, 01:42:40 AM
So Hamilton was wrong?
Hamilton's interpretation was at one extreme, Madison's at another. I suggest that the appropriate construction of the clause lies in between, closer to Hamilton's. Anything that is within the sphere of the states does not fall under the general welfare clause.
Hamilton was arguing for the constitutionality of manufacturing subsidies (so long as they were general). It was not within the state authority to subsidize manufacturing within its borders?
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Aren't several of the enumerated powers redundant with "common defense"?
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Before the ratification of the First Amendment, it could have done so.[/quote]
So the religion clause of the 1st Amendment was to prevent Congress from establishing a religion in a hypothetical capital district? Or was it to prevent Congress from establishing a religion under the general welfare clause?
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Roads certainly existed, and the Framers specifically refused to give Congress power over all roads.[/quote]
In the modern sense? Weren't roads, dirt tracks along easements? Other than not including regulation of stages under the post road authority, how did the framers specifically refuse to give Congress power over all roads?
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If the Smithsonian is set up as a private trust, yes. Otherwise, it may not, as there is no plenary federal power to expend outside D.C. (However, there is a plenary state power, so Virginia may fund it.)[/quote]
Could the United States government expend fund to transport a buffalo from its property in the West to the National Zoo?
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A park is not a needful building. "Forests, parks, ranges, wild life sanctuaries ... are not covered by Clause 17." (Collins v. Yosemite Park)[/quote]
The battle site at Gettysburg is none of those things. It is part of the historical records of United States government operations. It is not fundamentally different than paper documents such as the Constitution.
BTW, wasn't the point of Collins v Yosemite Park that the park fell under the general welfare power and so United States sovereignty was not absolute as it would have been had it been covered by Clause 17?
Emsworth:
Quote from: jimrtex on October 09, 2005, 06:50:23 PM
Aren't several of the enumerated powers redundant with "common defense"?
No, they are not. The common defense power, like the general welfare power, is only a spending power. Clause 11 dpes not overlap it, because it covers declaring war, granting letters of marque and reprisal, and making rules--all of which do not fall under spending. Similarly, clauses 12 and 13 authorize the actual raising of armies and navies (which implies the power to regulate them, to provide for the appointment of officers, make rules regarding enlistment, and all manner of other things which do not constitute spending).
On the other hand, if we accept your interpretation that the general welfare clause entails power over all roads, the post offices and post roads power becomes redundant.
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I never said that the sole effect of the First Amendment was to prevent an establishment of religion in a capital district. I only said that in the absence of the First Amendment, nothing would have prevented Congress from establishing a religion in that district.
With regard to the states, the establishment clause was strictly speaking unnecessary, as no power to establish religion had been granted. This is certainly what Madison thought.
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A specific prohibition is not necessary; under the Tenth Amendment, the lack of specific permission is sufficient.
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The necessary and proper clause seems to permit such an action, given that the zoo is in D.C.
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It is not a building.
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Unlike a paper document, the land is a part of a sovereign state. There is no constitutional power to buy land except in certain circumstances.
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No, the point of Collins (if I recall correctly) was that the U.S. possessed plenary power to buy land from the states (a power allegedly inherent in the government, not provided for by the Constitution). Needless to say, I do not believe that there are any inherent powers.
A18:
He makes a good point about the words 'Common Defense.' Clearly, the power "To ... maintain a Navy" is a spending power.
Perhaps the most probable theory concerning the words 'General Welfare' and 'Common Defense' is that they were just a convenient way of referring to the other powers, as in the Articles of Confederation from which they were copied.
Emsworth:
Quote from: A18 on October 09, 2005, 07:19:21 PM
He makes a good point about the words 'Common Defense.' Clearly, the power "To ... maintain a Navy" is a spending power.
Maintaining a navy probably involves more than just expenditure. It may entail providing for the appointment, removal, or discipline of officers and enlisted personnel, the power to direct how ships may be used, and the like.
Powers may certainly overlap; I do not deny that suggestion. However, I do deny that any power is completely redundant, as the post offices and post roads power would be under the interpretation proposed. Indeed, the common defense power itself would become redundant if we accept jimrtex's interpretation of the general welfare clause; the common defense is clearly to the "national benefit."
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As this debate proceeds, I am becoming more and more convinced that this theory might be correct. One important point I failed to note earlier was that Madison's interpretation would not necessarily result in a redundancy. If the spending clause were interpreted as a source of spending power, then Madison's interpretation would certainly be redundant. But if we interpret the spending clause as a limitation on the taxing power, then no redundancy would arise. Indeed, if the spending clause is regarded as a limitation, then Hamilton's interpretation would be incorrect.
At this stage, however, I don't think that I have enough historical evidence to completely discard Hamilton's position (which is backed by the weight of precedent). I'll have to read a bit more before coming to a conclusion...
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