So, in 1787, Alexander Hamilton, James Madison and John Jay are sitting around a tavern writing what has become known as the Federalist Papers, a long series of articles intended to explain the new Constitution to the public and persuade the 13 new states to ratify it.
Hamilton, who had been there a while longer than the other two and was therefore a tad over-served, nods off but comes to his senses during a lull in the conversation.
“I’ve got an idea,” he says.
“Don’t you always?” Madison retorts.
“No, seriously,” Hamilton replies, “it’s something new we haven’t thought of, and I think we ought to talk about it.”
“Well, OK, what?” asks Jay.
Chamber Pots and Chimneys
Hamilton says, “On my way over here, it seemed like people were emptying their chamber pots out of every other window, stinking up the sidewalk and ruining my linen socks.
“The wind was blowing the smoke from the chimneys right down into the street, making my eyes water to the point where I couldn’t see where I was going, which made the chamber pot problem that much worse, if you catch my drift.
“So, I thought, as long as we are inventing this federal government thing, why don’t we create a national department of chamber pots and chimneys to deal with this sort of problem?”
Madison explodes, spitting ale all over Jay. “You mean, we create some national department to control people tossing the contents of their chamber pots and having smoky chimneys in New York?” Madison explodes, spitting ale all over Jay. “How’s that supposed to work?”
“No, not just in New York,” Hamilton says excitedly. “I mean everywhere. This department would make up rules about when and where you empty your chamber pot and what you burn in your fireplace and when you can burn it.
“And if somebody breaks the rules, the department could fine them or confiscate their chamber pots or brick up their fireplaces, or maybe put them in jail… something like that.”
“Wait a minute,” says Madison. “I asked you how that’s supposed to work. There’s nothing in this Constitution that gives the federal government the power to do anything like that. It spells out those powers in no uncertain terms, and power over peoples’ chamber pots and chimneys ain’t one of them!”
“Keep your wig on,” Hamilton replies. “Don’t you think I know that? But see, we could say that it is one of those implied power thingamabobs that sort of magically belongs to one of the three branches of government to go along with the powers actually spelled out in the Constitution.”
Not a Task for Congress
“Well, it sure can’t be Congress,” says Jay, continuing to discreetly dry his pants where Madison’s spray landed. “Those guys couldn’t hit the Hudson River if they fell out of a boat, so you certainly can’t depend on them to hit the chamber pot, much less tell people what to do with one.
“Looks like I’m well on my way to becoming the first Chief Justice of the United States, and I can guarantee you the courts have bigger fish to fry than what’s in some guy’s chamber pot in Philadelphia and what he does with it. You’re going to have to hang this on the Executive Branch.”
“The Executive Branch?” asks Madison incredulously. “Are you kidding? You, Hamilton, can just hike on down to Virginia and run that one by the General yourself. I promise you it will hit him like another icebox at Valley Forge.”
“No, see,” Hamilton says, “we explain that this is a department with endless possibilities. You start out with chamber pots and chimneys, but after awhile it could be just about anything, since the Executive Branch can pretty well make things up as it goes along.
“I mean, we could outlaw just about anything we don’t like whenever we like, then enforce it against whoever we want. And if anyone objects, we’ll make them fill out paperwork for years. This way the federal government can pretty much control everything!”
An Outrageous Suggestion
“Settle down, King George,” Jay responds. “Not going to happen. First off, these quality-of-life issues are not the province of the federal government, at least not the one created by this Constitution, and the power to address them is reserved for states or the people.
“Second, who gets to make these rules? Do people get to vote on them, or does your brother-in-law get to pull them out of his wig? This will never pass muster in the courts, unless my successors are crooks or idiots.”
“I agree with Jay,” says Madison, slamming his drink on the table but deftly holding his saliva in his mouth as Jay takes cover. “This idea is a non-starter. Frankly, I think you’ve had a little too much to drink. These notions are just wrong on so many levels.”
I am a little snockered, thinks Hamilton. Do I really want to make a big deal over this and try to distort this beautifully crafted and brilliantly conceived Constitution to accommodate what I realize now is a pretty repulsive idea for this…this…Environmental Protection Agency? Nah.