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'A Fitting Capstone to an Election'

1:09 PM, Dec 28, 2010 • By DANIEL HALPER
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According to an editorial in the New York Sun, the 112 Congress will begin with a reading of the Constitution. As the editorial says, "It will be a fitting capstone to an election in which the cry of constitutional conservatism was heard throughout the land." The Sun urges members of Congress to take particular note of Article One, Section Eight:

This is the part of the Constitution that enumerates the things Congress has the power to do. There are a few other places in the Constitution where powers are granted to Congress — for example, after the Civil War, Congress was granted the power to enforce the 13th Amendment, which ended slavery, by passing appropriate legislation. But Article One, Section Eight, is the main listing of Congress’s powers, some of which have proved, over the years, more important than others.

“Congress,” Section 8 begins, “shall have the Power To Lay and collect Taxes, Duties, Imposts and Excises, to pay for the Debts and provide for the Common Defence and general Welfare of the United States.” This granted Congress a power that the federal government lacked under the Articles of Confederation. Mark, however, that Congress is not granted the power to tax for any reason it wants but only to pay debts, defend the country, and attend to welfare that is general in nature.

One of the wordsmiths of the final draft of the Constitution, Gouverneur Morris, chafed at the restrictions implied by the grammar of this phrase. So he tried to change the comma after the word “Excises” to a semi-colon. That would have made the language that followed a general grant of power to spend, rather language designed to limit the taxing power.

His plot was discovered and the comma restored. One constitutional scholar, Philip Hamburger of Columbia Law School, has written: “Rarely has so much rested on so small a point.” It turns out on this small point may rest the future of Obamacare, which the government is arguing in court that its authority is based on, among other clauses, the taxing power.

Whole thing here.

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