To conclude that the doctrine of “aggregate powers” is nothing but nonsense, one need merely consult the only provision in the Constitution which deals with implied powers: namely, the power of Congress “[t] o make all laws which shall be necessary and proper for carrying into execution the * * * [enumerated] Powers [of Congress], and all other Powers vested by th[e] Constitution in the Government of the United States, or in any Department or Officer thereof”. (footnote 1) This is an explicit power. The powers to which it refers are explicit powers, somewhere actually “vested by the Constitution”. And the authority it delegates to Congress is solely “[t]o make all laws which shall be necessary and proper for carrying into execution” such explicit, already “vested”, and therefore fully known “Powers”, not to create new and unheard-of “Powers” out of some arbitrary combination of the former “Powers”, in the manner in which Victor Frankenstein cobbled together his Monster from parts of cadavers. (footnote 2)
1.) U.S. Const. art. I, § 8, cl.18.
2.) See Rhode Island v. Massachusetts, 37 U.S. (12 Peters) 657, 723 (1838) (emphasis supplied): “That some degree of application must be given to words, is a proposition of universal adoption; implication is but another name for meaning and intention, apparent in the writing * * * ; ‘the evident consequence’ * * * ‘or some necessary consequence resulting from law’ * * * ; or the words of an instrument; in the construction of which, the words, the subject, the context, the intention of the person using them, are all to be taken into view. * * * Such is the sense in which the common expression is used in the books, ‘express words or necessary implication,’ such as arise on the words, taken in connection with other sources of construction; but not by conjecture, supposition or mere reasoning on the meaning or intention of the writing. All rules would be subverted if mere extraneous matter should have the effect of interpreting supreme law, differently from its obvious or necessarily to be implied sense * * * so apparent as to override the words used.” Also see By Tyranny Out of Necessity: The Bastardy of Martial Law, Bookmasters Inc., Ashland, Ohio (2014), by Dr. Edwin Vieira, Jr., page 282.
The dishonesty of the doctrine of “aggregate powers” becomes apparent upon consideration of the serpentine apologies that usually slither forth in its support. One is that the very existence of the Bill of Rights supposedly proves “that important powers were understood by the people who adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in any one of those [which were] enumerated”—“powers * * * neither expressly specified deducible from anyone specified power, or ancillary to it alone, but which gr[o]w out of the aggregate of powers conferred upon the [General G]overnment”. (footnote 1) this contention is pure pretense, because everyone conversant with the constitutional history is aware that the strongest proponents of an expansive construction of the original Constitution during the Founding Era, the Federalists, emphatically denied both:
(i) the legal necessity of the Bill of Rights, precisely because the Constitution contained no such powers as the doctrine of “aggregate powers” supposes; and
(ii) the political wisdom of such Amendments, precisely because their existence would provide aspiring usurpers with fast style, but false, arguments in support of supposedly unlimited grants of authority to the general government. For perhaps the best-known example, the arch-Federalist Alexander Hamilton warned the bills of rights not only were
unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than granted.* * * Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? * * * [S]uch a provision * * * would furnish, two men disposed to usurp, a plausible pretense for claiming that power. * * * This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of injudicious zeal for bills of rights. (footnote 2)
That Hamilton accurately predicted how “men disposed to usurp” would misuse the Bill of Rights as a “handle [ ]” is a tribute to his sagacity as well as to his personal experience in the swamp of criminal politics (four if any of the principal statesmen among the founding fathers was “disposed to usurp”, he was that man). That, notwithstanding Hamilton’s exposure of their purposes, the proponents of “aggregate powers” still desperately grasp that “handle [ ]” any way indicates the dearth of real authority they can muster in support of that doctrine.
Indeed, the very reliance on such an apology is self-defeating. For, as the preamble to the Bill of Rights itself pointed out, so as to ensure that public officials would always adhere to the correct construction of the original Constitution the Bill of Rights, consisting of “further declaratory and restrictive clauses”, was added to the Constitution “in order to prevent misconstruction or abuse of its [then existing] powers”. (footnote 3) So, were the thesis true that bevies of abusive “aggregate powers” lurked somewhere within the dark corners of the original Constitution, and the Bill of Rights was designed to negate those very recondite powers, then those powers were and remain negated by the Bill of Rights. That is, no supposed “aggregate power” which offends the Bill of Rights can be constitutional. And, just as obviously, every limitation of power specified within the original Constitution itself—from the definitions of particular powers to the inclusion of specific disabilities—opposes another level of negation any “aggregate powers” which purports to contradict those definitions or to circumvent those disabilities. (footnote 4)
1.) Knox v. Lee, 79 U.S. (12 Wallace) 457, 534-535 (1871).
2.) The Federalist No. 84 (emphasis supplied).
3.) RESOLUTION OF THE FIRST CONGRESS SUBMITTING TWELVE AMENDMENTS TO THE CONSTITUTION (4 March 1789), in Documents Illustrative of the Formation of the Union of the American States, House Document No. 938, 69th Congress, 1st Session (Washington D.C.: Government Printing Office, 1927), at 1063 (emphasis supplied).
5.) See By Tyranny Out of Necessity: The Bastardy of Martial Law, Bookmasters Inc., Ashland, Ohio (2014), by Dr. Edwin Vieira, Jr., page 283-284.
Another apology for “aggregate powers” liens upon the actual practices of rogue public officials from time to time: namely, that “Congress has often exercised, without question, powers that are not expressly given ancillary to any single enumerated power”. (footnote 1) Even if true if fact, this would prove nothing in law. That Congress (or any branch of the General Government) has in the past actually purported to exercise some other “powers * * * not expressly given nor ancillary to any single enumerated power” would not justify the conclusion that therefore it could properly exercise some different “aggregate power” today. Moreover, that Congress (or any other branch of the General Government) may have exercised any such other powers “without question” would leave even the constitutionality of those purported powers still open to doubt, not irrefutable. (footnote 2) For “neither the antiquity of practice nor * * * steadfast legislative and judicial inherence to it through the centuries insulates it from constitutional attack”. (footnote 3) “[N]o one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence”. (footnote 4) Not even the dubious theory that “it is emphatically the province and duty of the judicial department to say what the law is” (footnote 5) can salvage the doctrine of “aggregate powers” by an appeal to “precedents” judicial opinions— for, “[s]elf-evidently, no amount of repetition of * * * errors in judicial opinions can make the errors true”. (footnote 6)
1.) Knox v. Lee, 79 U.S. (12 Wallace) 457, 535 (1871).
2.) See, e.g., Myers v. United States, 272 U.S. 52, 170-173 (1926).
3.) Williams v. Illinois, 399 U.S. 235, 239 (1970).
4.) Walz v. Tax Commission, 379 U.S.644, 678 (1970).
5.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
6.) Wallace v. Jeffrey, 472 U.S.38, 107 (1985) (Rehnquist, C.J., dissenting).