by Ray Raphael
Both predictions were conjectural because no nation the size of the United States had yet demonstrated whether a purely republican government could endure. Historically, though, the framers prevailed and the Constitution was ratified. The experiment with a national republic was under way, and it was grounded on the assumption that government and liberty did not have to work at cross-purposes.
The framers did not totally abandon Whig principles, which had been formulated to check magisterial rule, but they adjusted them to suit a republic. Government was still suspect but, following Montesquieu, they created mechanisms within government that would keep liberty secure. They did not think at the outset, “Let’s see how we can restrain government,” but rather, “Let’s see how we can create a strong government with some set of internal checks, so it won’t tyrannize.”
Strengthening and restraining principles are woven throughout the Constitution’s text. The Preamble contains a forthright declaration of popular sovereignty: “We the people of the United States … do ordain and establish this Constitution.” Then, in broad strokes, it states the reasons for creating the Constitution: “in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” Article I, Section 8 lists eighteen federal powers to be used in achieving these goals. The first authorizes Congress to levy taxes to “provide for the common Defence and general Welfare of the United States,” and the last allows Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.”
Though textbooks rarely summarize these key provisions by a named principle, they should. We might call this the “government needs to be strong enough to do its job” principle, or, more economically, we could combine it with a commonly listed principle, turning the lopsided “limited government” into “strong government with defined powers,” but one way or another, we need to include in any catalogue of principles a positive assertion of federal constitutional power. The Constitution would not be the same if the framers hadn’t embraced the ideal of strong and effective government—in fact, it would not even exist.
The restraint principles embedded within the text also need rebranding. “Separation of powers” and “checks and balances” are not distinct principles, and if treated that way, they contradict each other. To check one another’s powers, the allegedly separate branches actually intermingle. The president, an executive officer, has the power to veto legislative acts of Congress; the vice president presides over the Senate; the Senate approves appointments made by the president, clearly an executive function. In fact, separation of powers and checks and balances aren’t exactly principles but strategies in service of a more general goal: diffusion of authority to prevent concentrations of power.5
Whatever we call these principles, they are generally considered restraints or limitations, although in fact they serve the opposite purpose. By distributing authority within the federal government, the framers were able to give that government greater powers than it dared grant to a single body. As protections grew, more powers could be added—that was the framers’ basic strategy and crowning achievement.
On the other hand, the strengthening of government in Article I was simultaneously a restraining principle. Yes, the federal government could commit citizens to the expenditure of blood and treasure through war and taxation, but first the people’s direct representatives had to approve, and if representatives approved but the people didn’t, the people could remove those representatives through free and frequent elections. In every case, the relationship between strength and restraint was complementary, not contradictory.
All principles embedded within the Constitution’s text must be treated in relation to one another and to the whole. When viewed in this broader context, each principle in itself becomes more complex, in some sense containing what appears to be its opposite. If at first this seems counterintuitive, consider how three cherished principles that appear on every list—limited powers, individual rights, and popular sovereignty—were treated within the Constitution. Whereas these are generally viewed as restraints on government, the full story is deeper and richer.
Limited Powers: Strict Versus Loose Construction
At first glance, the case for strictly limited powers seems so obvious. The purpose of a written constitution is to state what government is permitted to do and how it should go about doing it. Powers are to be listed, but the list would be meaningless if other powers, not listed, were also permitted. When the framers enumerated the powers of Congress in Article I, Section 8 of the United States Constitution, they intended their list to be exhaustive. Should there be any doubt, the Tenth Amendment cleared that up: “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.” Case closed.6
Yet this was not so obvious to George Washington, and the case was hardly closed. Early in 1791, less than two years into his first presidential term, Congress authorized the creation of a national bank, a public-private partnership that was the brainchild of Alexander Hamilton, Washington’s treasury secretary. Washington liked Hamilton’s scheme. The bank’s notes, backed by substantial private investors, would hold their value better than the government’s paper currency, and these notes would pump money into the sagging economy without endangering public credit. There was one problem, however. The United States Constitution did not specifically authorize the federal government to charter banks, a power that had been the province of the states, and it made no provision for granting one group of investors special status in United States law. These seeming gaps in constitutional authorization for the bank bill presented the president with a dilemma: should he sign the bill that Congress had sent him, which he believed would help the nation, or should he veto it because it exerted powers not explicitly authorized by the Constitution?
Washington asked his attorney general, Edmund Randolph, for a legal opinion, and Randolph gave a decisive answer: Congress did not possess a constitutional authority to incorporate the Bank of the United States. There was no specific clause empowering it to do so, he said, and the final clause of Article I, Section 8, which allowed it to “make all laws that shall be necessary and proper for carrying into execution the foregoing powers,” might be subject to dangerous abuse. If that clause were given too much “latitude,” wouldn’t it “terminate in an unlimited power in Congress”?7
Washington then consulted Thomas Jefferson, his secretary of state, and Jefferson agreed with Randolph. He understood the practical reasons for preferring bank notes to paper money, but that did not justify bypassing the Constitution. “Perhaps indeed bank bills may be a more convenient vehicle than treasury orders,” Jefferson said, “but a little difference in the degree of convenience, cannot constitute the necessity which the constitution makes the ground for assuming any non-enumerated power.”8
Next, Washington asked his close friend and political confidant James Madison, who had opposed the bill in the House of Representatives, to draft a veto message. Madison’s draft stated point-blank: “I object to the Bill because it is an essential principle of the Government that powers not delegated by the Constitution cannot be rightfully exercised; because the power proposed by the bill to be received is not expressly delegated; and because I cannot satisfy myself that it results from any express power by fair and safe rules of implication.”9
Finally, before delivering that message, Washington asked Hamilton to respond to the arguments proffered by the bank’s opponents. Working quickly, Hamilton drafted a lengthy and powerful defense of his measure. “Every power vested in a government,” he proclaimed, “includes … a right to employ all the means requisite, and fairly applicable to the attainment of the ends of such power, and which ar
e not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the ends of political society.” Here, Hamilton reversed the burden of proof: the exceptions, not the precise powers, needed to be specified. This was exactly the all-encompassing interpretation Randolph warned against, but Hamilton argued that Randolph, Jefferson, and Madison, in their narrow interpretation of “necessary and proper,” would “beget endless uncertainty and embarrassment” and cripple the legitimate functioning of government. Were “light houses, beacons, buoys & public piers” absolutely necessary to governmental operations? No, a country could exist without them—and the United States would have to do without them, if his opponents had their way, because the construction of these public works was not included in the eighteen powers relegated to Congress in Article I, Section 8 of the Constitution. Wouldn’t it be foolhardy to deem a government-supported lighthouse unconstitutional? Weren’t such powers implied by “general Welfare,” which does lie within the province of the Constitution?10
Hamilton also applied his broad construction of “necessary and proper” to national security concerns:
A nation is threatened with a war, large sums are wanted on a sudden to make the requisite preparations. Taxes are laid for the purpose, but it requires time to obtain the benefit of them. Anticipation is indispensable. If there be a bank the supply can at once be had. If there be none, loans from individuals must be sought. The progress of these is often too slow for the exigency; in some situations they are not practicable at all. Frequently when they are, it is of great consequence to be able to anticipate the product of them by advance from a bank.
If Washington vetoed the bank bill, Hamilton concluded, he would be undermining the overarching goal of the framers: “To suppose, then, that the government is precluded from the employment of so usual and so important an instrument for the administration of its finances as that of a bank, is to suppose what does not coincide with the general tenor and complexion of the constitution.”11
In the end, the president sided with Hamilton. Washington had been pushing for a strong, efficient national government for years, and a veto based on a limited interpretation of the “necessary and proper” powers of Congress would have ceded much of the ground he and his fellow nationalists had gained by framing, ratifying, and implementing the Constitution. It was a truly momentous decision. Had Washington declared for the other side, the entire trajectory of the federal government would likely have been altered.12
In truth, both sides of the debate were partly right. The principle of enumerated powers is indispensable to the Constitution, but so too is the principle of implied powers, embodied in the “necessary and proper” clause of Article I, Section 8. At the Federal Convention, when the Committee of Detail originally proposed a list of congressional powers, delegates debated most of these, altered a few, and occasionally proposed new ones. They wanted to grant the federal government immense powers it lacked under the Articles of Confederation, but they listed them very carefully so as to preclude avenues for abuse. Even though the last of the powers the committee suggested was singularly different and admittedly sweeping—“to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the government of the United States, or in any department or officer thereof”—it caused no stir, discussion, or debate. The framers viewed this clause as an essential complement to the rest. Without it, administration of all the other powers might be compromised.
Outside the closed doors of the Pennsylvania State House, however, once the Constitution was before the American people, many saw this matter differently. During the ratification debates, skeptics worried that the “necessary and proper” clause, as well as the supremacy clause and the two mentions of “general Welfare,” might open the door to federal powers not specifically enumerated in Article I, Section 8. To forestall this possibility, they proposed an amendment to the proposed Constitution that would explicitly confine federal authority to the listed powers. Massachusetts was the first state whose ratifying convention proposed amendments (see chapter 7), and here is its first proposal: “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.” The Articles of Confederation had declared that each state retain powers “not by this confederation expressly delegated to the United States, in Congress assembled,” and citizens of Massachusetts wanted a similar security in the new Constitution. Other state conventions proposed identical or similar amendments.13
“Expressly” was the vital word in the minds of the Constitution’s detractors. Saying that powers not delegated to the federal government were reserved to the states was not enough; adding expressly eliminated wiggle room, with all its attendant hazards. In retrospect, their worries were not unfounded. Without that definitive limitation, proponents of a strong federal government could argue (and later did argue) that even questionable powers can be implied, though not explicitly stated.
The Constitution was ratified without any of the amendments opponents proposed at the state ratification conventions. The push for a forthright limitation of federal power did not end there, however. In the First Federal Congress, when James Madison proposed constitutional amendments that would later evolve into the Bill of Rights (see chapter 7), he included a clear statement of the principle of enumerated powers: “The powers not delegated by this constitution, nor prohibited by it to the States, are reserved to the States respectively.” That statement, though, was not clear enough for South Carolina representative Thomas Tudor Tucker, who moved to insert the key word “expressly” before “delegated.” That would keep any so-called implied powers from ever sneaking in.14
Madison opposed the explicit limitation. “It was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia.” Tucker’s motion was “negatived” by a voice vote. Three days later, Elbridge Gerry, a Massachusetts representative who had helped write the Constitution but then refused to sign it, reintroduced Tucker’s motion, this time demanding a roll-call vote. Once more the motion failed, seventeen to thirty-two by the official count. All federal powers did not need to be “expressly” stipulated, the First Federal Congress expressly decided.15
Madison’s proposal, slightly modified, turned into the Tenth Amendment: “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.” Although some treat this provision as a definitive declaration of limited government, the Tenth Amendment was in fact a compromise. Federalists, although accepting the principle of enumerated powers, would have preferred to keep that principle implicit, while critics of the Constitution had wanted a stronger statement. Both sides bent, but both also won. This is not the way it has been used politically. For over two centuries, states’ rights advocates have treated the Tenth Amendment as if it did contain the word “expressly,” even though the amendment’s authors, Madison and the First Federal Congress, had made certain it would not. Purposely, the wiggle room remained. The government should not be too closely confined, Madison argued, and his view prevailed. “Powers by implication,” as he called them, should be allowed.16
Today, we still quarrel over “strict” versus “broad” constructions of the Constitution, much as Americans did in the 1790s. We do so because the Constitution signals mixed messages, and that is neither an accident nor a mistake. The framers refused to declare unfalteringly for “strict” or for “broad” because either choice, unmodified, would have been untenable. Without enumerating powers, the Constitution would permit the indefinite expansion of federal authority, yet without the flexibility inherent in implied powers, Congress could allocate no funds to help build dikes, dams, or airports; monitor weather to warn peopl
e of tornadoes; finance research for the eradication of smallpox (one of the great scourges of the founding generation); operate the Library of Congress and the Smithsonian Institution; or stage celebrations on the centennial and bicentennial anniversaries of the framing and ratification of the Constitution. Admittedly, all would not be lost. Even now, under Article I, Section 8, Clauses 10 and 11, Congress would still possess the authority to “punish Piracies” and “grant Letters of Marque and Reprisal.”
Individual Rights and the Common Good
The framers inserted a handful of individual guarantees in the Constitution, such as a writ of habeas corpus, but they did not assert the basic principle of individual rights. Because the new government did not take rights away, veterans of the Federal Convention explained, all rights still resided with the people, without question. Out-of-doors, however, the people were not convinced. Many of their state constitutions had assured them of their rights in written declarations, and in this time of momentous constitutional change they were on their guard. The clamor for rights continued until ratification in 1791 of the first ten amendments to the Constitution (see chapter 7).
The framers’ neglect was not incidental if seen in the context of those times. Most believed that rights were more threatened by the absence of strong government than by its presence. They observed the Regulators’ rebellion in Massachusetts and moves by state legislatures to abrogate contracts and print paper money with grave misgivings. Neither people nor property was safe. Should such trends continue, anarchy would reign and liberty would be lost. Without the rule of law, minorities would be subject to the tyranny of the majority. One key reason to create a new and stronger federal government was to “secure the Blessings of Liberty to ourselves and our Posterity.” Government was the solution.