The absence of a black-and-white, judicially defined, "limiting principle" does not imply that a Constitutional power is "unlimited". It just means that there may be no reason to have a black-and-white, judicially defined, "limiting principle".
Much of the Constitution's language is contestable, and it might even change over time. Congress can do anything necessary and proper to execute it's powers. What is considered necessary and proper may indeed change. It doesn't mean the power is unlimited. In any time what is improper and unnecessary is not allowed to the Congress.
Sorry if that doesn't always fit into a nice tidy judicial test.
Similarly, a lot of the penal practices of the eighteenth century would probably be considered "cruel and unusual" today. That term is contestable too. That's life. Nailing that down in a "test" is doomed to failure.
Who says limits on the state have to come in the form of a judicial test? Sounds like something a lawyer would come up with. I see no grounds for that claim, though.
Not only is the constitution contested at present: the very people who wrote it had different ideas about what the language they agreed to meant. Representatives of different leanings deliberately chose ambiguous wordings that they could still interpret so as to go back to their base and say, "we got what we wanted!" And some, like Madison, were opportunistic about interpreting it: in the 1790s he said that the national bank was unconstitutional; but when he found as president that he needed a national bank, he was happy to found one himself.
ReplyDelete