FEDERALISTS v ANTI-FEDERALISTS PART TWO: Broad And General Constitutional Powers Debated

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Several especially broadly worded purposes and powers listed in the U.S. Constitution worried the Anti-Federalists.

For instance, Article One, Section Eight of the Constitution grants the Federal Government the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

There’s also the long list of broad purposes of Government listed in the document’s Preamble, where it states that the Government of these United States is established “in order to form a more perfect Union, establish Justice, ensure Domestic Tranquility, provide for the Common Defense, promote the General Welfare.”

The Anti-Federalist who wrote under the nom de plume of “Brutus” warned in his essay “Number Six” (27 Dec 1787) that “to provide for the General Welfare is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed.”

Brutus was also concerned about the proposed Central Government’s power to directly tax the citizens of the States. This power, he said, taken together with the “necessary and proper” clause would create a Frankensteinian monster of government. Imagine, he wrote, the simple and seemingly benign case of a Federal tax on bottles of whisky… “It would be necessary, in order to collect such an excise, to regulate the manufacture of these, that the quantity made might be ascertained.” Thus, “every brewery must then be licensed, and officers appointed to take account of its product, and to secure the payment of the duty.”

In “Number Twelve Part I” (7 Feb 1788), Brutus imagined the newly created Federal Courts applying the “necessary and proper” clause “to any and every of the other clauses granting power.”

In his “Number Six” essay, Brutus questioned the indefinite nature of the phrase “to provide for the common defense,” maintaining that it could easily be applied to cover a dangerously broad array of activities.

For his part, Anti-Federalist Patrick Henry wasn’t very excited to hear that the Federal Government would take it upon itself the general aim of guaranteeing a Republican form of government in each State. Not that Henry was against Republics, but that he detested the idea that the Central Government would be the one deciding if a policy of a State was Republican enough.

“When the people of Virginia at a future day shall wish to alter their government,” spoke Henry on 7 June 1788, “though they should be unanimous in this desire, yet they may be prevented therefrom by a despicable minority at the extremity of the United States.”

— — — — —

The Anti-Federalists saw from the very beginning, then, that the broadly stated powers contained in the Constitution, such as the “necessary and proper” clause, the stated “general welfare” goal, and the stated purpose “to provide for the common defense,” were all frightening phrases. History has proven that the Anti-Federalists were correct that these phrases would be interpreted by the Courts for the purpose of expanding Federal power in both kind and degree.

James Madison, responding to the concerns of the Anti-Federalists in Federalist #41, contended that the granting of these broad powers and purposes were obviously not intended to be a blank check, as the Constitution goes on to describe the particular powers to be allowed the proposed Federal Government. “For what purpose could the enumeration of particular powers be inserted if these and all others were meant to be included in the preceding general power?”

The legislature of the Commonwealth of Virginia disagreed. On 27 June 1788, it approved a proposed list of amendments to be immediately incorporated into the Constitution upon its adoption. The 17th of these clarifies… “that those clauses which declare that Congress shall NOT exercise certain powers, be not interpreted, in any manner whatsoever, to extend the powers of Congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution.”

The amendments proposed by the Massachusetts Convention (approved on 7 February 1788) included the instruction… “FIRST, that it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.”

As with the other rights demanded by the Anti-Federalists, the Congress ultimately agreed to the calls for direct Constitutional statements limiting the power and scope of the new Central Government, and offered to the States for ratification, the Ninth and Tenth Amendments to the Constitution…

Amendment Nine: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the People.”

Amendment Ten: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.”

— — —

Hamilton defended the broad powers given to the Federal Government in the Constitution. In Federalist #59, he contended that “every Government ought to contain in itself the means of its own preservation.” Hamilton believed that if a Government were NOT given the powers it needed to guide a country safely through emergencies, that it would simply operate AS IF it had such powers in order to safeguard the nation. But each time it had to do this, the laws of the land would become a little less respected, and the restrictions the People had placed upon the Government, thinking such restrictions bulwarks for their safety, would become more and more easily oversteppable.

In Federalist #26, Hamilton maintained that “a power equal to every possible contingency must exist somewhere in the government.” In Federalist #23 he asserted the general principle that “the means ought to be proportioned to the end,” and that not to give a Government “a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety.”

Madison completely agreed, writing in Federalist #44 that “no axiom is more clearly established in law or in reason than that wherever the end is required the means are authorized.” and that, wherever a general power to do a thing is given, every particular power necessary for doing it is included.”

In fact, all this worry about a Government being “too” powerful obviously exasperated the pragmatic Hamilton. Sure, he said, we could create a weak Government. But a weak, badly made Government would be worse than strong, wisely made one. In Federalist #23 Hamilton observed that “a government, the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the national interests.”

Hamilton understood that a Government must be fashioned, not for the moment, but for the Ages. “Constitutions of civil Government are not to be framed upon a calculation of existing exigencies,” he explained in Federalist #34, “but upon a combination of these with the probably exigencies of ages, according to the natural and tried course of human affairs.”

According to Hamilton, all the fuss over the clauses of General Purposes And Powers of Government was silly. “The Constitutional operation of the intended government would be precisely the same if these clauses were entirely obliterated,” he declared in Federalist #33. The phrase necessary and proper, “though it may be chargeable with tautology or redundancy, is a least perfectly harmless.”

Madison concurred. Writing in Federalist #44 of the “necessary and proper” clause, he held that “without the substance of this power, the whole Constitution would be a dead letter.”

Madison, perhaps the pre-eminent government-theorist of his generation, examined the consequences of the alternatives to granting the Government “necessary and proper” powers. He claimed there were four…

1) There could have been attempted a “positive enumeration” of the specific powers GRANTED to the Government.

2) Or, conversely, a “negative enumeration” of the powers FORBIDDEN to Government.

3) Or… the Framers could have “prohibited the exercise of any power not EXPRESSLY delegated.”

4) Or, lastly, the Framers “might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.”

In Madison’s view, none of these four options would prove better than the course chosen at the Constitutional Convention– which was to limit the Government’s powers to those “necessary and power” to fulfilling its purposes.

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