Sunday, January 24, 2016

James Madison, "If it be, it may be exercised by Congress. If it be not. Congress cannot exercise it."

   "The argument, then, drawn from the common law, on the ground of its being adopted or recognised by the Constitution, being inapplicable to the sedition-act, the committee will proceed to examine the other arguments which have been founded on the Constitution.

   "They will waste but little time on the attempt to cover the act by the preamble to the Constitution; it being contrary to every acknowledged rule of construction, to set up this part of an instrument, in opposition to the plain meaning expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissible effect, of rendering nugatory or improper every part of the Constitution which succeeds the preamble.

   "The paragraph in Art. I. sect. 8, which contains the power to lay and collect taxes, duties, imposts, and excise; to pay the debts, and provide for the common defence and general welfare, having been already examined, will also require no particular attention in this place. It will have been seen that in its fair and consistent meaning, it cannot enlarge the enumerated powers vested in Congress.

   "The part of the Constitution which seems most to be recurred to, in defence of the “sedition-act,” is the last clause of the above section, empowering Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United Slates, or in any department or officer thereof.”

   "The plain import of this clause is, that Congress shall have all the incidental or instrumental powers necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.

   "Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not. Congress cannot exercise it."-–James Madison, Madison’s Report On The Virginia Resolutions, House of Delegates, Session 1799-1800. [Elliot’s Debates, Vol. IV, Pg. 567-68]

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