FReeper Book Club: The Debate over the Constitution, Federalist #22

Like a surgeon, Hamilton takes a scalpel to the Articles of Confederation in a very long paper that covers a lot of territory. At the end, he plants a mine that will detonate only a few decades after the deaths of the last Framers.

² In addition to the defects already enumerated in the existing federal system, there are others of not less importance which concur in rendering it altogether unfit for the administration of the affairs of the Union.

³ The want of a power to regulate commerce is by all parties allowed to be of the number.

⁴ The utility of such a power has been anticipated under the first head of our inquiries, and for this reason, as well as from the universal conviction entertained upon the subject, little need be added in this place.

⁵ It is indeed evident on the most superficial view that there is no object, either as it respects the interests of trade or finance, that more strongly demands a federal superintendence.

⁶ The want of it has already operated as a bar to the formation of beneficial treaties with foreign powers and has given occasions of dissatisfaction between the states.

⁷ No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets without granting us any return but such as their momentary convenience might suggest.

⁸ It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency.¹

⁹ Several states have endeavored, by separate prohibitions, restrictions and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the state, has hitherto frustrated every experiment of the kind and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist.

¹⁰ The interfering and un-neighborly regulations of some states, contrary to the true spirit of the Union, have in different instances given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy.

¹¹ “The commerce of the German Empire² is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.”

¹² Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect from the gradual conflicts of state regulations that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.

¹³ The power of raising armies, by the most obvious construction of the Articles of the Confederation, is merely a power of making requisitions upon the states for quotas of men.

¹⁴ This practice in the course of the late war was found replete with obstructions to a vigorous and to an economical system of defense.

¹⁵ It gave birth to a competition between the states which created a kind of auction for men.

¹⁶ In order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size.

¹⁷ The hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment and disinclined them from engaging for any considerable periods.

¹⁸ Hence, slow and scanty levies of men in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army.

¹⁹ Hence also, those oppressive expedients for raising men which were upon several occasions practiced and which nothing but the enthusiasm of liberty would have induced the people to endure.

²⁰ This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden.

²¹ The states near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas which even exceeded their abilities, while those at a distance from danger were for the most part as remiss as the others were diligent in their exertions.

²² The immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation.

²³ The states which did not pay their proportions of money might at least be charged with their deficiencies, but no account could be formed of the deficiencies in the supplies of men.

²⁴ We shall not, however, see much reason to regret the want of this hope when we consider how little prospect there is that the most delinquent states will ever be able to make compensation for their pecuniary failures.

²⁵ The system of quotas and requisitions, whether it be applied to men or money, is in every view a system of imbecility in the Union and of inequality and injustice among the members.

²⁶ The right of equal suffrage among the states is another exceptionable part of the Confederation.

²⁷ Every idea of proportion and every rule of fair representation conspire to condemn a principle which gives to Rhode Island an equal weight in the scale of power with Massachusetts or Connecticut or New York, and to Delaware an equal voice in the national deliberations with Pennsylvania or Virginia or North Carolina.

²⁸ Its operation contradicts the fundamental maxim of republican government which requires that the sense of the majority should prevail.

²⁹ Sophistry may reply that sovereigns are equal and that a majority of the votes of the states will be a majority of confederated America.

³⁰ But this kind of logical legerdemain will never counteract the plain suggestions of justice and common sense.

³¹ It may happen that this majority of states is a small minority of the people of America³, and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third.

³² The larger states would after a while revolt from the idea of receiving the law from the smaller.

³³ To acquiesce in such a privation of their due importance in the political scale would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality.

³⁵ The smaller states, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration.

³⁶ It may be objected to this, that not seven but nine states, or two thirds of the whole number, must consent to the most important resolutions, and it may be thence inferred that nine states would always comprehend a majority of the Union.

³⁷ But this does not obviate the impropriety of an equal vote between states of the most unequal dimensions and [population], nor is the inference accurate in point of fact, for we can enumerate nine states which contain less than a majority of the people⁴, and it is constitutionally possible that these nine may give the vote.

³⁸ Besides, there are matters of considerable moment determinable by a bare majority, and there are others, concerning which doubts have been entertained, which if interpreted in favor of the sufficiency of a vote of seven states, would extend its operation to interests of the first magnitude.

³⁹ In addition to this, it is to be observed that there is a probability of an increase in the number of states and no provision for a proportional augmentation of the ratio of votes.

⁴⁰ But this is not all; what at first sight may seem a remedy is in reality a poison.

⁴¹ To give a minority a negative upon the majority, which is always the case where more than a majority is requisite to a decision, is in its tendency to subject the sense of the greater number to that of the lesser.

⁴² Congress, from the nonattendance of a few states, have been frequently in the situation of a Polish diet, where a single vote has been sufficient to put a stop to all their movements.

⁴³ A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations.

⁴⁴ This is one of those refinements which in practice has an effect the reverse of what is expected from it in theory.

⁴⁵ The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security.

⁴⁶ But its real operation is to embarrass the administration, to destroy the energy of the government and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto to the regular deliberations and decisions of a respectable majority.

⁴⁷ In those emergencies of a nation in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action.

⁴⁹ If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority, and thus the sense of the smaller number will overrule that of the greater and give a tone to the national proceedings.

⁵⁰ Hence, tedious delays, continual negotiation and intrigue, contemptible compromises of the public good.

⁵¹ And yet in such a system, it is even happy when such compromises can take place, for upon some occasions things will not admit of accommodation, and then the measures of government must be injuriously suspended or fatally defeated.

⁵² It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction.

⁵³ Its situation must always savor of weakness, sometimes border upon anarchy.

⁵⁴ It is not difficult to discover that a principle of this kind gives greater scope to foreign corruption as well as to domestic faction than that which permits the sense of the majority to decide, though the contrary of this has been presumed.

⁵⁵ The mistake has proceeded from not attending with due care to the mischief that may be occasioned by obstructing the progress of government at certain critical seasons.

⁵⁶ When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe because nothing improper will be likely to be done, but we forget how much good may be prevented and how much ill may be produced by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

⁵⁷ Suppose, for instance, we were engaged in a war in conjunction with one foreign nation against another.

⁵⁸ Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms.

⁵⁹ In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice.

⁶⁰ In the first case, he would have to corrupt a smaller number, in the last a greater number.

⁶¹ Upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions.

⁶³ A nation with which we might have a treaty of commerce could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves.

⁶⁵ One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.

⁶⁶ An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state.

⁶⁷ The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.

⁶⁸ In republics, persons elevated from the mass of the community, by the suffrages of their fellow citizens to stations of great pre-eminence and power, may find compensations for betraying their trust which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock and to overbalance the obligations of duty.

⁶⁹ Hence it is that history furnishes us with so many mortifying examples of the [prevalence] of foreign corruption in republican governments.

⁷⁰ How much this contributed to the ruin of the ancient commonwealths has been already delineated.

⁷¹ It is well known that the deputies of the United Provinces have in various instances been purchased by the emissaries of the neighboring kingdoms.

⁷² The Earl of Chesterfield, if my memory serves me right, in a letter to his court intimates that his success in an important negotiation must depend on his obtaining a major’s commission for one of those deputies.

⁷³ And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled.

⁷⁴ A circumstance which crowns the defects of the Confederation remains yet to be mentioned: the want of a judiciary power.

⁷⁵ Laws are a dead letter without courts to expound and define their true meaning and operation.

⁷⁶ The treaties of the United States, to have any force at all, must be considered as part of the law of the land.

⁷⁷ Their true import, as far as respects individuals, must like all other laws be ascertained by judicial determinations.

⁷⁸ To produce uniformity in these determinations, they ought to be submitted in the last resort to one supreme tribunal.

⁷⁹ And this tribunal ought to be instituted under the same authority which forms the treaties themselves.

⁸¹ If there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts.

⁸³ We often see not only different courts but the judges of the came court differing from each other.

⁸⁴ To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence and authorized to settle and declare in the last resort a uniform rule of civil justice.

⁸⁵ This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts.

⁸⁶ In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations.

⁸⁷ As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws, for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence.

⁸⁸ The treaties of the United States under the present constitution are liable to the infractions of thirteen different legislatures and as many different courts of final jurisdiction acting under the authority of those legislatures.

⁸⁹ The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions and the interests of every member of which it is composed.

⁹⁰ Is it possible that foreign nations can either respect or confide in such a government?

⁹¹ Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?

⁹² In this review of the Confederation, I have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive.

⁹³ It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound as to admit not of amendment but by an entire change in its leading features and characters.

⁹⁴ The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union.

⁹⁵ A single assembly may be a proper receptacle of those slender, or rather fettered, authorities which have been heretofore delegated to the federal head, but it would be inconsistent with all the principles of good government to entrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States.

⁹⁶ If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be that we should run into the project of conferring supplementary powers upon Congress as they are now constituted, and either the machine from the intrinsic feebleness of its structure will molder into pieces in spite of our ill-judged efforts to prop it, or by successive augmentations of its force an energy as necessity might prompt, we shall finally accumulate in a single body all the most important prerogatives of sovereignty and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived.

⁹⁷ Thus we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert.

⁹⁸ It has not a little contributed to the infirmities of the existing federal system that it never had a ratification by the people.

⁹⁹ Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers and has in some instances given birth to the enormous doctrine of a right of legislative repeal.

¹⁰⁰ Owing its ratification to the law of a state, it has been contended that the same authority might repeal the law by which it was ratified.

¹⁰¹ However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates.

¹⁰² The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority.

¹⁰³ The fabric of American empire ought to rest on the solid basis of the consent of the people.

¹⁰⁴ The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.

[1] This, as nearly as I can recollect, was the sense of his speech on introducing the last bill.
[2] Encyclopedia, article “Empire.”
[3] New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina and Maryland are a majority of the whole number of the states, but they do not contain one third of the people.
[4] Add New York and Connecticut to the foregoing seven, and they will be less than a majority.

Hamilton is back in form here, far more direct and far less ornate and opaque than his offering of two days earlier. This one takes much less effort to decode, possibly to its detriment, because certain implications are clear and perhaps not entirely what Hamilton intended.

It is a common error to attempt interpreting 18th Century political alignments in 21st Century terms, and so the following observation must be taken more for amusement than literal accuracy. Up until now in the Federalist and the anti-Federalist Papers, the reader has encountered a classic pattern in American politics: Hamilton, the progressive, hammering away at the inadequacies of the status quo; his conservative opponents avoiding direct confrontation on those points, but concentrating their fire on whether the proposed cure is not worse than the disease. It is one reason why modern political discourse so often resembles the mock combat of shadow-boxing.

In this piece Hamilton restates four of his objections to the current Articles of Confederation and the government that took shape under their auspices:

Hamilton has already made a case of considerable merit on the first point. Even those foreign powers who were willing to deal with the United States were hindered by the consideration that arrangements made with the federal government might not be honored by the various states (8). He invokes the experience of the German Empire (11) in pointing out that the American states had already begun to behave more as competitors than allies in the matter of interstate taxation, and that such behavior had killed commerce in Germany.

According to Hamilton, the second point, the lack of a power to raise armies, was a consequence of states forced by the system to act as intermediaries, interposing their own interests on the overall effort. Where their recruiting contributions were ordered by quota, they found themselves competing with one another to fill them (15), and ended up actually hurting the overall recruiting effort by encouraging volunteers to wait for the best offer (17). The loser, unsurprisingly, was the Continental Army. As Washington’s aide and eventual Chief of Staff, Hamilton had seen this with his own eyes.

The fourth point, the lack of a central judiciary, was another facet of Hamilton’s overall argument that a federal government that could not deal directly with citizens in terms of law must eventually be compelled to do so by force. In this particular case the conflicting aims of states and the differences between their already long established legal codes led to a situation where there was no effective mediating authority between them. Not only did courts differ between themselves, they often differed within themselves (83). Of all the issues attendant to the construction of a new government, it was the one that had found the most international and historical unanimity in solution.

This had been so from the marble agoras of the weak confederations of the ancient Greeks to the crystal palaces of the Austrian Habsburgs. It was not actually a point in serious dispute even among the anti-Federalists.

But the third point, the nature of political representation, the question of whether the proper repository of political power was in the individual citizen or the collective state, proves by far the most interesting and controversial within this essay, for its contention that the state was an improper vessel for the containment of political rights could be applied all too easily to the federal government, not only under the present Confederation as Hamilton demonstrated, but, unfortunately for the case favoring ratification, under that of the proposed Constitution as well. Hamilton was aware of that extrapolation, for it resulted from his own discarded conception of federal government. His opponents were also aware.

The difficulty, according to Hamilton, was that the necessity of agreement between the collective entities of the states put the populations of those states on uneven terms per capita.

²⁸ Its operation contradicts the fundamental maxim of republican government which requires that the sense of the majority should prevail.

The reader sees Hamilton in the unaccustomed role of populist democrat, and yet it is perfectly consistent with his previously stated beliefs. He means that a majority of individuals must rule over a majority of collectives. He is about to take that case to a startling conclusion.

Here, however, he unwittingly agrees with his opponents Yates (Brutus) and Clinton (Cato) in that these very same standards are applied with equal accuracy to the Senate proposed in the new Constitution, a Senate whose members were distributed by state instead of by population, and who were not even, at the time, elevated to their station by popular election. In fact, at the Convention, Hamilton’s own constitutional plan had consisted of a bicameral legislature, both Houses of which were elected by popular acclamation, and neither of which were apportioned by state. He is consistent in defending this idea, but in fact the Constitution that was actually under consideration held within it not his plan, but that of Roger Sherman’s Connecticut Compromise: a House of Representatives proportioned by population, a Senate proportioned by state.

Clearly Hamilton the theorist found a problem in principle with this compromise, but in fact it was nothing more than a recognition that the citizens’ political and cultural identities were focused toward their home states, and that it was very unlikely that the citizens of Delaware would join any union whose ground rules were that New York’s desires in all political matters should prevail due to a larger population. Sherman recognized that; Hamilton obviously felt it undemocratic.

To be sure, it was quite the other way under the rules of the Confederation (31), wherein a political coalition of smaller states could work its will on the larger population. It could be carried to extremes.

⁴³ A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations.

But it is painfully clear that Hamilton, in order to be true to his democratic principles, was actively undermining at least one very important aspect of the structure of the proposed federal government, the Senate. It was a precocious “Power to the People” argument, and it led down an alarming path. For just as clearly Hamilton wanted the new Constitution ratified not by an agreement between the 13 collective entities known as the states, but by the people themselves, and it was a fundamental weakness of the Confederation that it had never been so approved.

⁹⁸ It has not a little contributed to the infirmities of the existing federal system that it never had a ratification by the people.

Suddenly the implications of this principle become clear. States that entered this agreement as states could, as easily, revoke it. States whose citizens had independently approved the Constitution could not.

¹⁰⁰ Owing its ratification to the law of a state, it has been contended that the same authority might repeal the law by which it was ratified.

¹⁰¹ However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates.

Hamilton is speaking ironically – it was hardly heresy, it was common sense, and yet the constraints of any compact must incorporate a penalty clause for simply walking away from it. Hamilton’s point was that a government based on the consent of 13 states was more likely to experience this disintegration than a single one based on the consent of all of its individual citizens. He obviously intended the focus of those citizens’ political vision to be on the overall federal entity. History would prove him wrong; when, at last, some three-quarters of a century later, the common citizen found himself having to choose between state and Union, the choice would be wrenching, polarizing, and not in the wildest imagination unanimous.

But Hamilton’s point was not, as his opponents accused, that state governments ought to be subsumed within an overall federal entity. It was more radical than that: it was that the states did not, and should not, matter as the ultimate source of political power. That was an assertion guaranteed to elicit a furious reply from those, such as Patrick Henry, who felt far more oriented toward a state government for whose independence from the Crown he had risked his life, than toward any federal government, especially one that did not yet exist.

The reader must be grateful to Hamilton for laying it out unflinchingly. Whatever else his opponents would say about him, there is very little dissimulation here. There is also very little compromise. It is occasionally an uncomfortable truth that the compromise turns out to be more significant than the principles it mediates.

The points made by Hamilton in 98 through 104 appear trivial to the modern eye, but they aren’t. They were to lead to expostulations from Samuel Bryan in Pennsylvania and Patrick Henry in Virginia – and then to secession in 1860.

Hamilton’s arguments would found a constitutional theology promulgated by Daniel Webster, Henry Clay and Abraham Lincoln that harkened back to the Declaration of Independence as the most important Founding Document. Lincoln believed that the Declaration created the Union because it converted British colonies into states by throwing off their colonial status. Thus the Union created the states, not the other way around, and the Union predated both the states and the Constitution.

An opposing constitutional theology was promulgated by Patrick Henry, John Calhoun and Jefferson Davis. This took into account the Treaty of Paris which had granted independence to each state individually, and the Articles of Confederation which said, “Each state retains its sovereignty, freedom and independence.” This theology believed that the states had created the Union and had been the ratifying parties to the Constitution.

James Madison, during his long life, had moved back and forth between Hamilton’s centralism and Jefferson’s federalism, but he was consistent on one point. Madison believed the Union was formed, and the Constitution was ratified, by “the whole people”, not the states. Madison would concede that the people acted through the states as their agents, but not that the states were the actual parties to the Union and the Constitution. This point was critical in Madison’s rebuttal to John Calhoun in the latter’s Senate debate with Daniel Webster after the South Carolina secession attempt failed in 1832. Madison’s pamphlet was printed in many of the newspapers of the day, and he went so far as to challenge Calhoun to a debate in the press. Calhoun waved him off, stating that Madison, at age 81, was senile. Nothing could have been farther from the truth, and America lost a valuable opportunity to witness a debate between two of the finest legal minds of the age.

The Framers had deliberately bypassed the ratification procedure in the Articles of Confederation by requiring that the states call ratifying conventions rather than ratify by state legislatures. This was done, not only because there was some question about whether the legislatures would ratify such a radical change, but because the Framers wanted it on the record that the people had formed the Union, not the states. This is why the opening words read, “We the people of the United States,” not “We the States.” This is the point Hamilton is making for the first time in this debate.

Of course, the concept of “whole people” was quite a bit different from today. Neither blacks nor Native Americans nor women could vote, but only white men, age 21 or older, who fulfilled the property requirements of their particular states. These property requirements meant that barely 10% of eligible white males could vote, but in that time and place, that qualified as the “whole people.” Modern standards of political correctness should not be taken into account.

You know and I know that the "implied powers" are an accepted part of the Constitution. This was understood at the time of ratification. The change from expressly delegated powers to delegated powers was intentional. I'm sure you're familiar with the ruckus about the first national bank of the US. Hamilton's essay on the subject covers the doctrine of implied powers thoroughly. Hamilton's thinking found its way into Marshall's opinion in McCulloch v Maryland a few years later.

It doesn't matter what I imagine them to be, or what you imagine them to be, or what Madison or Jefferson or anyone else imagined them to be. What matters is that they do exist. Who gets to decide what is and isn't an implied power? The Congress. Ultimately, federal courts can have the last word on it if it gets that far.

In short, the implied powers are whatever the Congress and the federal court say they are. Just look at the amount of powers found to be implied through the commerce clause. This goes back a long way (the Adams administration?).

Where does the national gubmint get the power to create the FDA? It's implied. How about the ATF? Implied. How about the FBI? CIA? Implied. Implied. Foreigh aid programs? Implied. On and on.

It's been this way since pretty much the very beginning.

No I don't know that at all and I very seriously doubt that those men who had just fought and won a war against the most powerful force on earth understood any such thing either.

They intended, and said so, that the constitution be the chains that bound down the central government.

Nothing is implied but much has been usurped! That much I will grant you and it is US who are to blame.

It is for us, fellow citizens, to watch over the sacred legacy of our venerated Fathers, and, when necessary, ‘to provide other guards for the future security’ of ourselves and our posterity. To restore, when impaired, our free institutions to their original strength and purity, and to guard them in future against the open or covert assaults of their enemies. To preserve those institutions pure and uncontaminated, amidst the dangerous and corrupting influences of those who, guided not by the spirit of virtue and patriotism, seek only their own personal interests and personal aggrandizement is a sacred and solemn duty which we own to ourselves, and to those who are destined to walk after us.

Nathan Smith

"Liberty and security in government depend not on the limits, which the rulers may please to assign to the exercise of their own powers, but on the boundaries, within which their powers are circumscribed by the constitution. With us, the powers of magistrates, call them by whatever name you please, are the grants of the people . . . The supreme power is in them; and in them, even when a constitution is formed, and government is in operation, the supreme power still remains. A portion of their authority they, indeed, delegate; but they delegate that portion in whatever manner, in whatever measure, for whatever time, to whatever persons, and on whatever conditions they choose to fix."

U.S. Supreme Court Justice James Wilson (Lectures, 1790-1791)

I very seriously doubt

Doubt has nothing to do with it. I'm surprised by you, Bigun. I wouldn't have expected you to be ignorant of the debates over the First Bank of the US. Alexander Hamilton, who had fought in the war, argued for the doctrine of implied powers. Jefferson, who did not fight, argued against it. President Washington, who had commanded the army, came down on Hamilton's side.

Are you also ignorant of McCulloch v. Maryland? I find that hard--nay, impossible!--to believe. Marshall spells it out plainly. He even refers to the fact that the Articles of Confederation contained only expressly delegated powers--not so the Constitution.

Then there are Brutus's antifederalist essays concerning implied powers. These essays demonstrate that implied powers were understood to exist even before the ratification. Madison himself defends implied powers in Federalist 44 (and he was wrong as usual.)

Methinks you're simply denying reality.

An opinion has gone forth, we find, that we are contemptible people: the time has been when we were thought otherwise. Under the same despised government, we commanded the respect of all Europe: wherefore are we now reckoned otherwise? The American spirit has fled from hence: it has gone to regions where it has never been expected; it has gone to the people of France, in search of a splendid government — a strong, energetic government. Shall we imitate the example of those nations who have gone from a simple to a splendid government? Are those nations more worthy of our imitation? What can make an adequate satisfaction to them for the loss they have suffered in attaining such a government — for the loss of their liberty? If we admit this consolidated government, it will be because we like a great, splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy, and a number of things. When the American spirit was in its youth, the language of America was different: liberty, sir, was then the primary object. We are descended from a people whose government was founded on liberty: our glorious forefathers of Great Britain made liberty the foundation {54} of every thing. That country is become a great, mighty, and splendid nation; not because their government is strong and energetic, but, sir, because liberty is its direct end and foundation. We drew the spirit of liberty from our British ancestors: by that spirit we have triumphed over every difficulty. But now, sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire. If you make the citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together. Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances, in this government. What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances?

Patrick Henry, June 5th, 1788

You may think anything you wish but I stand by what I said while denying nothing.

I KNOW what John Marshall said but Marshall is NOT the constitution! Marshall is just another player, along with Hamilton and others, who did not want the federal republic provided for in the constitution from the outset. They wanted a mercantile empire along the lines of the English model and they finally got it with Lincoln and his war.

You're completely in denial. On the one hand, you appeal to authority (those that fought the revolution wouldn't have created implied powers), and when presented with the fact that the Supreme Commander of the Continental Army, signer of the Constitution, and Father of our Country, along with his first officer, Hamilton, and a majority in the first congress all approved of implied powers, you have no answer.

As for Marshall, another Constitutional signer, he is not the Constitution, but Article 3 is, and his opinion re: implied powers carries the same force as any word in the Constitution. Unless you think his opinion on the matter will be overturned. But even if it were, someone could come along with your specious argument and protest that the overturners "are not the Constitution."

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