Are national parks constitutional?

[Emsworth]

They are all important tasks.  And all of them are important enough to either be performed by the Federal government or with appropriate federal oversight.

The Constitution does not allow the federal government to oversee anything it deems important. It is the powers of the federal government which are limited, and the powers of the states which are plenary--not the other way around.

[A18]

So in other words, the federal government is allowed to establish public schools in your view. What a joke this "interpretation" is.

I suppose the post roads power was completely futile. As was the power to raise and support armies, and the power to provide and maintain a navy.

'General welfare' means more than having a national benefit, as has been explained. You simply reject it because you don't like the result, so I'll just quit arguing with entirely results-based posters.

What's amusing is that this alleged blank check, that would devoir every aspect of federalism, was copied from none other than the Articles of Confederation.

http://www.usconstitution.net/articles.html

Article VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

[angus]

wow, now that I've voted, I see that very few of us vote no, even though you made a better case for NO than anyone did for YES.  When this happens, I always have to wonder if people aren't just voting on impulse.  Ah, well, does it really matter?  I'm tired.  Good night.

People are not voting "on impulse", they are voting to preserve and protect our national treasures.  I believe that the vast majority of the American people would answer "yes".

Emsworth always makes a great case for everything he says regarding the Constitution, as Constitutional law is his interest and he is very skilled at it.  Those of us who are interested in graphic arts make better graphics.  People interested in cars make better mechanics.  That doesn't mean he is making the right argument that would do the most good for the country.  In fact, I belive his view of the world is down right terrifying.  Would you want your children to live in a world with no preservation of parks and wildlife, no protections for workers, and no protections for the rights of minorities?

Surely not.  And some day, I hope Emsworth will grow - just as America has -  to realize that.

Take it seriously, htmldon.  I too am of the opinion that some things are worth preserving, including national parks.  (I also see a role for federal funding of academic research, etc.)  But the question was, simply, is it constitutional?  I have been convinced by someone that it isn't.  Don't read into that that I don't support it.  (you and I both know the federal government does unconstitutional stuff all the time.  And it's good that the government has the balls to think in terms of the spirit, rather than strictly the letter, of the law from time to time.  forcing SC and others to remain as part of the US is probably the first and best example, for if the GOP hadn't the balls to persue that, the union would have fallen apart and this continent would have reverted to being an imperial european playground.  history, as you know it, would have been radically different, and we might now all be dodging German and Russian nuclear weapons in another scenario.  but there are many others.)  Anyway, the question didn't ask whether I liked them and think spending money on them is worthwhile.  That's an easy answer.  The question was abstract and of little practical use.  But it was thought-provoking and, in my opion, was argued better by those who say it isn't constitutional. 

[jimrtex]

"The only qualification of the generallity of the Phrase is this -- That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possiblity, throughout the Union, and not being confined to a particular spot." (Hamilton)

One cannot just concentrate on the former part of the sentence and ignore the latter. Hamilton makes it abundantly clear that the actual operation must extend throughout the Union. The operation of a park is, undoubtedly, "confined to a particular spot," and therefore not within the purview of the spending clause.

One can not just concentrate on a single paragraph of what Hamilton wrote.  You are looking at the word "operation" and assuming that he is referring to the operation of some facilility or governmental bureau, and then treating "object" as meaning that facility or bureau.

But Hamilton in the preceding paragraph gives some examples of "objects", such as "learning of Agriculture".  That is, the "object" is the ultimate purpose of the legislation.  The general well-being of the United States is enhanced by farmers using modern methods of agriculture which they learned through dissemination programs of the federal government.

The only restriction is that the object or ultimate goal of the program must be for the well-being of the United States in general, as opposed to specific states or localities.  The spending must operate to produce a general object.

And ultimately we have to look at the actual text of the Constitution.  general modifies welfare and not provides.  It is the ends that must be general (national) in nature, not the means to that ends.

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Hamilton gives an example of dissemination of information about agricultural methods, as qualifying as a provision of the general welfare.  You're not suggesting that a state is not qualified to disseminate information about agriculture within its own borders are you?  The general requirement is simply to keep the national government from playing favorites.

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It is the welfare that must be general, not the provision.

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The well-being of the entire country is enhanced by the preservation and protection of this site of great national importance.

U S v. Gettysburg Electric R. Co. 160 U.S. 668 (1896)
  "No narrow view of the character of this proposed use should be taken.
  Its national character and importance, we think, are plain."

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Creation of national parks at sites of significant historical, cultural, geological, biological, or scenic importance does not break down all the barriers between the states and the general government.  Monroe can rest in his grave.

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Is this the John Marshal who wrote in McCulloch v. Maryland?

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adequate to that end, which are not prohibited but consistent with the letter and spirit of the constitution, are constitutional."

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The actual operation in this case--dissemination of this information--extended throughout the Union. The actual operation of a park, on the other hand, does not.

Hamilton was proposing a hypothetical.  I want an example of a program that you feel would operate throughout the Union.  You are Congress - design your program.

[jimrtex]

What's amusing is that this alleged blank check, that would devoir every aspect of federalism, was copied from none other than the Articles of Confederation.

http://www.usconstitution.net/articles.html

Article VIII. All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The main failing of the Articles of Confederation was that Congress did not have the authority to raise money, but was dependent on the States.

Remember that first power granted to Congress was the "power to lay and collect taxes ... to provide for the common defense and general welfare."

[Emsworth]

One can not just concentrate on a single paragraph of what Hamilton wrote.  You are looking at the word "operation" and assuming that he is referring to the operation of some facilility or governmental bureau, and then treating "object" as meaning that facility or bureau.

On the contrary, "operation" need not refer to the operation of a specific facility, but rather to the operation of the whole program.

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It is insufficient that the "object" be for the national benefit. I think that Hamilton makes it clear that it must be for the national benefit, and that the operation extend throughout the union.

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Where does Hamilton speak of dissemination of information about agriculture?

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Nothing wrong there. But the end of establishing a national park is not "within the scope of the constitution."

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The interstate highway system.

[A18]

What, in your view, stops the federal government from establishing public schools, forming a military, or assuming provision of all roads under the 'General Welfare' and 'Common Defense' Clause?

If the answer is nothing, then your interpretation would not only (in my view) undermine federalism, but make several of the other enumerated powers useless.

The idea was that the states would supply the money. There was no way for the Congress to itself collect money, but that doesn't change the principle: surely no one would argue that the Congress under the Articles had all this theoretical power.

[Emsworth]

If the answer is nothing, then your interpretation would not only (in my view) undermine federalism, but make several of the other enumerated powers useless.

The fact that the Framers deemed it necessary to include a separate power to establish post offices and post roads speaks volumes. It is a principle of constitutional interpretation that there are no redundancies in the original Constitution. If something as remote as a park would be comprehended by the general welfare clause, then why did the framers specify a power to establish post offices (which is even more closely related to the general welfare)?

[jimrtex]

One can not just concentrate on a single paragraph of what Hamilton wrote.  You are looking at the word "operation" and assuming that he is referring to the operation of some facilility or governmental bureau, and then treating "object" as meaning that facility or bureau.

On the contrary, "operation" need not refer to the operation of a specific facility, but rather to the operation of the whole program.

No, you still aren't understanding.  Hamilton is saying that the welfare must be general, not local, that the welfare's operation extend throughout the Union.  The means need not be general, but the effect must be.

If there was a whole set of national parks operating throughout the Union would that be constitutional?

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It is insufficient that the "object" be for the national benefit. I think that Hamilton makes it clear that it must be for the national benefit, and that the operation extend throughout the union.[/quote]
No.  Hamilton is defining what it means for the welfare to be general. 

Hamilton's 1791 Report on Manufactures is primarily an argument for the development of industry in the United States, rather than agriculture.  In it he suggests a number of measures that Congress could take to encourage the development of industry.  He then argues that such measures would be constitutional (as opposed to those who argued that Congressional powers are only those in the enumerated list that followed), and concludes:

  "... there seems to be no room for a doubt that whatever concerns the general interests of learning, of agriculture, of manufacturing, and of commerce, are within the sphere of the National Councils, as far as regards an application of money."

I had missed a comma, and had interpreted this as meaning "learning of agriculture", etc.  Instead, he is saying that promotion of education, agriculture, manufacturing, and commerce are proper subjects of Congressional appropriation.   Hamilton's earlier discussion makes it quite clear that these subjects do not form an exhaustive list, but are more examples.

He thens add his caveat:

"The only qualification of the generality of the phrase in question, which which seems to admissible, is this: That the object to which an appropriation of money is to be made, be general, and not local; its operation extending, in fact or by possiblity throughout the Union, and not being confined to a particular spot."

For the welfare to be general, its effect must be national rather than local.  It may be true that for certain programs to have national effect, there must national application.  For example, a national system of education might require schools in every locality.  But there are other programs where the effect, the benefit, the well-being, the welfare can emit from a single location.

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Where does Hamilton speak of dissemination of information about agriculture?[/quote]
Previous paragraph of Hamilton's 1791 Report of Manufactures.  See Appendix of Annals of Congress, 2nd Session.

Annals of Congress

I had missed a comma.  It was actually activities in the interest of learning (comma) of agriculture, of manufacturing, of commerce, which Hamilton considered proper applications of the general welfare.

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Nothing wrong there. But the end of establishing a national park is not "within the scope of the constitution."[/quote]
Congress believed it was, and when challenged, the Supreme Court upheld their action.

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The interstate highway system.
[/quote]
How about an educational program about the Civil War?  This could contests on the recitation of Lincoln's Gettysburg Address, with the state winners brought to Gettysburg for the national final.  Booklets about the battle could be distributed.  And dioramas trucked about the country.  Historical research could be funded.  The actual battle site would have to be preserved and protected in the interest of accurate historical research.

The government has an implied power to maintain records of its activities.  Reports of its officers from the battle, as well as others would properly be gathered and maintained, as well as being made available to interested persons.  There is no reason that physical artifacts from the battle, including the site itself could not be kept and preserved.  Since it is physically impossible to place Gettysburg in a file cabinet, other methods of storage, preservation, and public access are required.  A national park is the method that the Congress has chosen.

[Emsworth]

No, you still aren't understanding.  Hamilton is saying that the welfare must be general, not local, that the welfare's operation extend throughout the Union.  The means need not be general, but the effect must be.

I'm disputing that very point that you make. If the means are not general, then (by definition) the welfare is not general, as distinguished from local.

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When Hamilton says "its operation," he is not referring to the object of the spending: he is referring to the operation of that object. In other words, although I construe "object" as the benefit, I construe "its operation" (i.e., "the object's operation") as meaning that the actual program must be general, not just the supposed benefit. Any benefit to any person can be arguably said to be general.

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While I do not attempt to sound arrogant, the Supreme Court has upheld all sorts of things that they shouldn't (see, for example, Gonzales v. Raich). In any event, the national park was not upheld under the general welfare clause, but under the supposed power of the federal government to acquire lands.

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There are no implied federal powers, only enumerated ones.

I have no doubt that the government has the power to maintain the property that it owns, such as the paper on which any law was written, under the elastic clause. But the government does not own Gettysburg.

In any event, how would you justify the fact that the Framers felt it necessary to mention a separate enumerated power to establish post offices and post roads? Surely, these are for the "national benefit." Yet, the fact that the Framers specifically mentioned it, combined with the principle that there are no redundancies in the original Constitution, means that the general welfare clause is not as broad as has been asserted.

[jimrtex]

The fact that the Framers deemed it necessary to include a separate power to establish post offices and post roads speaks volumes. It is a principle of constitutional interpretation that there are no redundancies in the original Constitution. If something as remote as a park would be comprehended by the general welfare clause, then why did the framers specify a power to establish post offices (which is even more closely related to the general welfare)?

The Post Office was established in 1775, almost a year prior to the Declaration of Independence.   The establishment of interstate post offices was an express power of Congress under the Articles of Confederation.  In 1789, the 1st Congress' first action with respect to the Post Office was to simply direct that it carry on as it had under the AoC.

The establishment of post roads and post offices is an exclusive authority of Congress by necessity due to its interstate operation.  Authority under the general welfare is shared with the states.  For example, that the United States could promote manufacturing generally, does not exclude the states from promoting manufacturing within their borders.

So we simply have a provision for a power that Congress had presumed even before the Declaration of Independence, and carried forward from the Articles of Confederation into the Constitution.  And by its nature, it is an exclusive power of Congress.  No one has suggested that the power to create national parks precludes the power of states to create state parks within their borders.

[jimrtex]

What, in your view, stops the federal government from establishing public schools, forming a military, or assuming provision of all roads under the 'General Welfare' and 'Common Defense' Clause?

I don't comprehend what you are suggesting about formation of a military.  The United States has had a military since 1775.

Nothing in the Constitution prevents the United States from establishing a national system of public schools or operating all the roads.

The idea was that the states would supply the money. There was no way for the Congress to itself collect money, but that doesn't change the principle: surely no one would argue that the Congress under the Articles had all this theoretical power.
[/quote]
At the time of the Articles of Confederation, the states did not operate roads or have public schools.

[jimrtex]

No, you still aren't understanding.  Hamilton is saying that the welfare must be general, not local, that the welfare's operation extend throughout the Union.  The means need not be general, but the effect must be.

I'm disputing that very point that you make. If the means are not general, then (by definition) the welfare is not general, as distinguished from local.

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When Hamilton says "its operation," he is not referring to the object of the spending: he is referring to the operation of that object. In other words, although I construe "object" as the benefit, I construe "its operation" (i.e., "the object's operation") as meaning that the actual program must be general, not just the supposed benefit. Any benefit to any person can be arguably said to be general.

[/quote]
Assuming your construal is correct, what in Hamilton's argument makes the condition necessary, rather than merely sufficient?  If Congress were to operate schools throughout the Union, it would be for the purpose of educating its citizens.  Education of citizens improves the welfare or well-being of the United States.  But what you seem to be arguing is that the important thing is that the program provides jobs for teachers and other school workers throughout the country generally, and not that it provides education generally.  Of course, if the program operates nationally, the benefit is also likely to be national.

But there may well be other programs that project their benefits, well-being, and welfare far beyond their locality.  Surely, the power to operate the Smithsonian Institution on more than the fact that the US owns the buildings.

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While I do not attempt to sound arrogant, the Supreme Court has upheld all sorts of things that they shouldn't (see, for example, Gonzales v. Raich). In any event, the national park was not upheld under the general welfare clause, but under the supposed power of the federal government to acquire lands.[/quote]
It was that the spending of funds (provision) includes the power to acquire land through condemnation - the provisioning is still restricted to specific objects such as the general welfare.

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There are no implied federal powers, only enumerated ones.
[/quote]
Record-keeping is inherent to all governmental operations.

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They bought the site.

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See my other note.  The Continental Congress had been operating a post office for almost a year before the Declaration of Independence.  It was an enumerated power under the Articles of Confederation, and the 1st Congress in 1789 continued the operation of the post office as established under the Continental Congress and Articles of Confederation.  It would be more remarkable if they had removed the power to operate the post office, than essentially transcribing from one document to the next.

[Emsworth]

The establishment of post roads and post offices is an exclusive authority of Congress by necessity due to its interstate operation.

I see nothing in the Constitution to indicate that a state could not establish its own post offices, just like private companies can.

If Congress were to operate schools throughout the Union, it would be for the purpose of educating its citizens.  Education of citizens improves the welfare or well-being of the United States.  But what you seem to be arguing is that the important thing is that the program provides jobs for teachers and other school workers throughout the country generally, and not that it provides education generally.

That is not what I am arguing, because a national education system would be unconstitutional. The welfare would not be general, as distinguished from local. In the words of James Madison:

"If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress... Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America."

To argue that the general welfare clause authorizes the establishment of schools or parks or all roads by Congress would ignore the original understanding of that clause.

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The Smithsonian Institution in the District of Columbia, isn't it? Congress has complete jurisdiction over that district; it need not rely on the general welfare clause for power.

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Clause 17 only authorizes the purchase of lands for "the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." The original purchase was unconstitutional.

[jimrtex]

If Congress were to operate schools throughout the Union, it would be for the purpose of educating its citizens.  Education of citizens improves the welfare or well-being of the United States.  But what you seem to be arguing is that the important thing is that the program provides jobs for teachers and other school workers throughout the country generally, and not that it provides education generally.

That is not what I am arguing, because a national education system would be unconstitutional. The welfare would not be general,

So Hamilton was wrong?  In one paragraph, he states that the interest of learning is a proper object of Congressional spending; but he qualifies that by saying that the operation of the program must be national, rather than local.

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Where did Madison say this?  May the United States take care of religion within the District of Columbia?

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Hamilton said that it would be impossible to anticipate or enumerate the activities that would fall under the general welfare.  Remember that public schools, parks, and roads did not exist in the modern sense in 1789.

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The Smithsonian Institution in the District of Columbia, isn't it? Congress has complete jurisdiction over that district; it need not rely on the general welfare clause for power.[/quote]
The Air&Space Museum is in Virginia.  May the Smithsonian Institution acquire objects for display (ie. expend funds) outside the District of Columbia.  May it store such materials temporarily or permanently outside D.C.?  May it lease or purchase building for storage?  May it take active steps to preserve the materials?

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Clause 17 only authorizes the purchase of lands for "the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." The original purchase was unconstitutional.
[/quote]
Other needful buildings.

[Emsworth]

So Hamilton was wrong?

Hamilton's interpretation was at one extreme, Madison's at another. I suggest that the appropriate construction of the clause lies in between, closer to Hamilton's. Anything that is within the sphere of the states does not fall under the general welfare clause.

Otherwise, many of the other enumerated powers would be redundant.

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Before the ratification of the First Amendment, it could have done so.

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Roads certainly existed, and the Framers specifically refused to give Congress power over all roads.

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If the Smithsonian is set up as a private trust, yes. Otherwise, it may not, as there is no plenary federal power to expend outside D.C. (However, there is a plenary state power, so Virginia may fund it.)

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A park is not a needful building. "Forests, parks, ranges, wild life sanctuaries ... are not covered by Clause 17." (Collins v. Yosemite Park)

[jimrtex]

So Hamilton was wrong?

Hamilton's interpretation was at one extreme, Madison's at another. I suggest that the appropriate construction of the clause lies in between, closer to Hamilton's. Anything that is within the sphere of the states does not fall under the general welfare clause.

Hamilton was arguing for the constitutionality of manufacturing subsidies (so long as they were general).  It was not within the state authority to subsidize manufacturing within its borders?

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Aren't several of the enumerated powers redundant with "common defense"? 

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Before the ratification of the First Amendment, it could have done so.[/quote]
So the religion clause of the 1st Amendment was to prevent Congress from establishing a religion in a hypothetical capital district?   Or was it to prevent Congress from establishing a religion under the general welfare clause?

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Roads certainly existed, and the Framers specifically refused to give Congress power over all roads.[/quote]
In the modern sense?  Weren't roads, dirt tracks along easements?  Other than not including regulation of stages under the post road authority, how did the framers specifically refuse to give Congress power over all roads? 

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If the Smithsonian is set up as a private trust, yes. Otherwise, it may not, as there is no plenary federal power to expend outside D.C. (However, there is a plenary state power, so Virginia may fund it.)[/quote]
Could the United States government expend fund to transport a buffalo from its property in the West to the National Zoo?

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A park is not a needful building. "Forests, parks, ranges, wild life sanctuaries ... are not covered by Clause 17." (Collins v. Yosemite Park)[/quote]
The battle site at Gettysburg is none of those things.  It is part of the historical records of United States government operations.  It is not fundamentally different than paper documents such as the Constitution.

BTW, wasn't the point of Collins v Yosemite Park that the park fell under the general welfare power and so United States sovereignty was not absolute as it would have been had it been covered by Clause 17?

[Emsworth]

Aren't several of the enumerated powers redundant with "common defense"?

No, they are not. The common defense power, like the general welfare power, is only a spending power. Clause 11 dpes not overlap it, because it covers declaring war, granting letters of marque and reprisal, and making rules--all of which do not fall under spending. Similarly, clauses 12 and 13 authorize the actual raising of armies and navies (which implies the power to regulate them, to provide for the appointment of officers, make rules regarding enlistment, and all manner of other things which do not constitute spending).

On the other hand, if we accept your interpretation that the general welfare clause entails power over all roads, the post offices and post roads power becomes redundant.

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I never said that the sole effect of the First Amendment was to prevent an establishment of religion in a capital district. I only said that in the absence of the First Amendment, nothing would have prevented Congress from establishing a religion in that district.

With regard to the states, the establishment clause was strictly speaking unnecessary, as no power to establish religion had been granted. This is certainly what Madison thought.

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A specific prohibition is not necessary; under the Tenth Amendment, the lack of specific permission is sufficient.

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The necessary and proper clause seems to permit such an action, given that the zoo is in D.C.

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It is not a building.  

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Unlike a paper document, the land is a part of a sovereign state. There is no constitutional  power to buy land except in certain circumstances.

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No, the point of Collins (if I recall correctly) was that the U.S. possessed plenary power to buy land from the states (a power allegedly inherent in the government, not provided for by the Constitution). Needless to say, I do not believe that there are any inherent powers.

[A18]

He makes a good point about the words 'Common Defense.' Clearly, the power "To ... maintain a Navy" is a spending power.

Perhaps the most probable theory concerning the words 'General Welfare' and 'Common Defense' is that they were just a convenient way of referring to the other powers, as in the Articles of Confederation from which they were copied.

[Emsworth]

He makes a good point about the words 'Common Defense.' Clearly, the power "To ... maintain a Navy" is a spending power.

Maintaining a navy probably involves more than just expenditure. It may entail providing for the appointment, removal, or discipline of officers and enlisted personnel, the power to direct how ships may be used, and the like.

Powers may certainly overlap; I do not deny that suggestion. However, I do deny that any power is completely redundant, as the post offices and post roads power would be under the interpretation proposed. Indeed, the common defense power itself would become redundant if we accept jimrtex's interpretation of the general welfare clause; the common defense is clearly to the "national benefit."

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As this debate proceeds, I am becoming more and more convinced that this theory might be correct. One important point I failed to note earlier was that Madison's interpretation would not necessarily result in a redundancy. If the spending clause were interpreted as a source of spending power, then Madison's interpretation would certainly be redundant. But if we interpret the spending clause as a limitation on the taxing power, then no redundancy would arise. Indeed, if the spending clause is regarded as a limitation, then Hamilton's interpretation would be incorrect.

At this stage, however, I don't think that I have enough historical evidence to completely discard Hamilton's position (which is backed by the weight of precedent). I'll have to read a bit more before coming to a conclusion...

[jimrtex]

Aren't several of the enumerated powers redundant with "common defense"?

No, they are not. The common defense power, like the general welfare power, is only a spending power. Clause 11 dpes not overlap it, because it covers declaring war, granting letters of marque and reprisal, and making rules--all of which do not fall under spending. Similarly, clauses 12 and 13 authorize the actual raising of armies and navies (which implies the power to regulate them, to provide for the appointment of officers, make rules regarding enlistment, and all manner of other things which do not constitute spending).

On the other hand, if we accept your interpretation that the general welfare clause entails power over all roads, the post offices and post roads power becomes redundant.

Is the post-office clause a spending power?

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I never said that the sole effect of the First Amendment was to prevent an establishment of religion in a capital district. I only said that in the absence of the First Amendment, nothing would have prevented Congress from establishing a religion in that district.

With regard to the states, the establishment clause was strictly speaking unnecessary, as no power to establish religion had been granted. This is certainly what Madison thought. [/quote]
But he was the primary author of the 1st Amendment.

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A specific prohibition is not necessary; under the Tenth Amendment, the lack of specific permission is sufficient.[/quote]
The 10th amendment merely says that the powers not delegated to the United States, etc.  If the general welfare power delegated to the Congress the authority to operate all roads, then the 10th Amendment is irrelevant to that authority.

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It is not a building. [/quote]
Fences and other such facilities at the battle site would be building necessary to preserve the public record.

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Unlike a paper document, the land is a part of a sovereign state. There is no constitutional  power to buy land except in certain circumstances.[/quote]
The land is within the borders of a sovereign state, just as a paper document might be.  Could the United States purchase a salt cavern for use in storing paper records?

[Emsworth]

Is the post-office clause a spending power?

Of course it is.

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But he still thought that it was superfluous.

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A fence is not a building either, I think. The government cannot do an end-run around the Constitution.

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There is a difference between land and paper. The land--real property--is actually part of the state. The paper--personal property--is not, but is merely within its borders.

[jimrtex]

Is the post-office clause a spending power?

Of course it is.

You said that the enumerated powers that are related to the military were not spending powers, and that is why they were distinct from providing from the common defense.  Is there a different relationship between enumerated powers in other areas, and providing for the general welfare?

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A fence is not a building either, I think. The government cannot do an end-run around the Constitution.[/quote]
The United States government can't build a fence around a federal courthouse?  What about outside a federal prison?

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There is a difference between land and paper. The land--real property--is actually part of the state. The paper--personal property--is not, but is merely within its borders.
[/quote]
The difference is that a piece of paper can be moved to a secure place for preservation and protection.  The land can not easily be moved with current technology.  Therefore the protection and preservation must occur at Gettysburg.

[Emsworth]

The United States government can't build a fence around a federal courthouse?  What about outside a federal prison?

There is a power to build a courthouse or a prison in the first place; the necessary and proper clause takes care of the fence.

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I disagree completely. The common law has always regarded real property (land) and personal property (goods) as completely different things. The land is part of a state: it is the land which defines the state. Paper does not.