This episode: the Necessary and Proper Clause versus the Tenth Amendment.

The Necessary and Proper Clause. Article One. Section Eight.

<blockquote>[Congress shall have the power...] 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 States, or in any Department or Officer thereof. </blockquote>

The Tenth Amendment. Amendments to the Constitution. Amendment Ten.

<blockquote>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. </blockquote>

Notes:

1. As always, given the very nature of written Constitutions and written law, a preamble states the intent of the document and is not meant to carry the force of law. Thus appeals to a literal "general welfare" are faulty.

2. The Necessary and Proper Clause refers to "foregoing" powers, meaning that the power of Congress referred to in the clause only operates in context to the powers already listed (mostly in Article One, Section Eight). These "necessary and proper" powers are tempered by numerous other restrains such as those on ex post facto, bills of attainder, and Article One, Section One, which prohibits Congressional delegation of its sole Constitutional authority. Due to this fact, there is no dispute with the Tenth Amendment.

3. The Tenth Amendment, which due to the textual and common "foregoing" explicit and implied in the Necessary and Proper Clause does not conflict with any other portion of the Constitution, explicitly makes extra-constitutional laws unconstitutional. It states that in order for Congress to make a law, there must be Constitutional grounds for that law; there must be text within the Constitution that supports the supposition that such law is within the natural purview of both a legislative assembly and this Congress. It goes further and states that what is not in the jurisdiction of the federal government (most matters not related to the national defense or of Great Import - in other words, most governmental matters) is to be in the jurisdiction of the several states or, a state failing to contain within its constitution empowerment to that effect, the people.

4. Let us suppose, as a paltry few Federalists (as opposed to Democratic-Republicans), most Progressives, and all progressives have since 1791, that there was an inherent contradiction between the Necessary and Proper Clause and the Tenth Amendment. Which one would be considered to supersede; which one would take precedent as the Supreme Law of the Land?

The very nature of Amendments, whether to statutes or Constitutions, is that they render previous contradictory text null and void. The Thirteenth and Seventeenth Amendments famously did such things. Why? Because they were included in the text of the Constitution at a time proceeding earlier text; they "amended" what was considered to be a less than beneficial arrangement (although, as in the case of the Seventeenth, we can see that not all amendments are salutary). The simple fact that the Tenth Amendment was an amendment, and that it was made law after Article One, Section Eight, means that in any potential disagreement the Tenth Amendment takes precedent. Thousands of years of legal practice, and metaphysical and universal Good Sense, make this so.

What does this mean? This means that, unless a particular program -let us use as an example, an old age pension - is a delegated power in the Constitution, then no law that Congress may make to effect such a program can possibly be necessary and proper. This means that, with "foregoing" included in the clause, in addition to the very nature of written constitutions being whole and without "living" powers, the Constitution, as far as the listed portions go, is in harmony.

And most importantly, no one can use the Necessary and Proper clause to hide from the fact that when Congress attempts to enact a program that does not have explicit Constitutional approval - whether this be securities law, drug prohibition, Social Security, or funding petting zoos for inner city school children - then Congress is acting outside of its legal mandate, and any products of such are unconstitutional, illegal, and, in a sane and moral world in which we do not live, ignorable.