James Madison’s Constitution Two-Step
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James Madison’s Constitution Two-Step


How do you determine if something is constitutional? James Madison gave us a 2-step process. Writing in his famous Report of 1800, James Madison argued that the Alien and Sedition Acts clearly violated the Constitution. Why, because they failed a basic two-question test First, Madison said “whenever a question arises concerning the constitutionality of a particular power; the first question is whether the power is expressed in the constitution. If it be, the question is decided.” But that doesn’t settle the issue in every situation. We also have to consider the necessary and proper clause. Madison said if a power to take a given action isn’t explicitly in the constitution’s text, “the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution.” In other words, if the action is absolutely necessary to carry out the power that is clearly spelled out in the constitution, and it is a proper or customary way of doing so, then, as Madison put it, “it may be exercised by Congress. If it be not; Congress cannot exercise it.” And that sums up James Madison’s simple two-step process for deciding if a federal action is constitutional.

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