Founders / Framers Minute: Article I, Section 1
by Cornel Rasor
All legislative Powers herein granted shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representatives.
The courts have no power to make law nor can they establish it. Madison, in 1800 explained that the states who created the federal government have a say in determining if the compact they executed has been violated:
“The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the constitution; and consequently that the ultimate right of the parties to the constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.“
Further, Madison explained that the national government, intent on expanding its powers in 1800, embarked on a systematic reinterpretation of the general welfare clauses similar to what we see attempted today:
“The fourth resolution stands as follows:—
That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the Federal Government, to enlarge its powers by forced constructions of the Constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases, (which, having been copied from the very limited grant of powers in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present Republican system of the United States, into an absolute, or at best a mixed monarchy.”
Thus, there is no grant of power to the federal government to expand its powers by judicial precedent, nor by misconstruing general welfare phraseology. And there certainly is no grant to the courts to do so.
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