AZKC wrote:
I agree that the powers in many cases are not absolutely specific, they are a framework after all, and that A1S8C18 is what gives the Congress the power to flesh out those powers by passing laws.

This isn't what happened with Social Security and Medicare. There was no enumerated power to "flesh out" to create Social Security and Medicare.


I don't think that's quite true.  Congress certainly has the power to levy a payroll tax.  Depending on how one sees the power to tax in Art. I Sec. 8, they have the power to establish a spending program.  That's the view the Court adopted, and which the American people have accepted for roughly 80 years now.

But my question still stands. If the Congress can legislate new powers into existence as long as they claim popular acceptance of those powers, and this is perfectly constitutional, what purpose does Article V have in the 21st century?
I don't think they can "legislate new powers into existence."  That's one of the reasons I opposed the individual mandate.  Congress's commerce argument was basically that they could daisy-chain acts as "necessary" to support some other initiative until there were effectively no limits on their power.  Thanks to Roberts, the Court rejected the daisy-chain, though it's worrying to think that there are four votes on the Court now who think that's hunky-dory. 

Understanding and applying the Constitution isn't a simple or easy task.  I think it can be done systematically, however, and should be, and the starting point should be what I call the common understanding at the time the text was adopted.  It shouldn't end there, but that's where it should start.

I say it shouldn't end there because we, today, are no less sovereign than those who ratified the Constitution and the amendments.  Due process, I think, best illustrates this.  To the Founding generation, what due process required the government to do was radically different than our understanding of that phrase today.  In an era when policing was less regimented and professional prosecution was a thing of the future, the requirement of Brady v. Maryland that the prosecution must turn over any exculpatory evidence to the defense was also a thing of the future.  In an era where arrests without a warrant were fairly rare, and searches and seizures without one even more rare, the exclusionary rule (which Amar opposes, BTW) was also a thing of the future.  But, given our current institutions and the institutional corruption inherent in them, ending the exclusionary rule as unsupported by original understanding (as Scalia, Amar, and many others think) would seriously erode the incentives against illegally obtaining evidence

“Nobody has a legitimate reason to fear a faithful interpretation of the Constitution, and nobody has any legitimate reason to fear effective and complete protection of civil rights." - Alan Gura