Posted: August 19th, 2013 by Militant Libertarian
James Madison famously wrote in Federalist 45: “The powers delegated by the proposed Constitution to the federal government, are few and defined.” Strict constructionists are fond of this quote, and often cite it in defense of their view that the Constitution established a government of strictly limited powers.
But did it?
One way to approach this question is to look at Madison’s record. Some people will be surprised to learn that the author of the Constitution was also the author of the implied-powers doctrine, which would seem to run counter to the few-and-defined-powers doctrine.
The U.S. Constitution, of course, was America’s second constitution, the first being the Articles of Confederation (1781–1789). The Articles did little more than formalize the confederation of soon-to-be sovereign states, leaving few powers to the single-branch national government. (It created Congress only, no executive or judiciary.) This government lacked two powers that national governments routinely exercise: the power to tax and the power to regulate trade. Indeed, the power to tax is so essential to the identity of government that we are warranted in calling what the Articles created a quasi government. For its revenue it depended on the power of the states to impose taxes on the people, but it could not tax the people directly. (Attempts to permit the national government to impose a duty on imports failed.)
The bare-bones Articles left little for ambitious politicians to work with. What was a statesman to do? Less than two weeks after the Articles took effect, Madison hit on a solution. As a member of the Congress, he proposed an amendment:
A general and implied power is vested in the United States in Congress assembled to enforce and carry into effect all the articles of the said Confederation against any of the States which shall refuse or neglect to abide by such determinations.
Note the phrase “general and implied power.”
As his biographer, Ralph Ketcham, wrote, “Madison sought as well to make the mode of enforcement explicit: Congress was authorized ‘to employ the force of the United States as well by sea as by land’ to compel obedience to its resolves.”
The amendment, along with others that would have bulked up the central government, failed. (Ketcham noted that Madison then became “more devious” in his attempts to enlarge its powers.)
The view held by Madison and other Founders that the central government was too weak paved the way to the convention in Philadelphia in 1787. Albert Jay Nock called this the “coup d’etat,” because rather than amending the Articles per its mandate, the convention, which worked behind locked doors, started from scratch. (Changes to the Articles would have required unanimous consent of the states. But the proposed Constitution set its own rules for ratification: only 9 of 13 states were required.
As Madison wrote to Thomas Jefferson: “The evils suffered and feared from weakness in Government … have turned the attention more toward the means of strengthening the [government] than of narrowing [it].”
This was echoed by James Wilson, a well-respected judge from Pennsylvania and an ardent nationalist: “It has never been a complaint [against congresses] that they governed overmuch. The complaint has been that they have governed too little.”
Madison’s interest in implied powers is indicated by what didn’t get into the Constitution. For example, the Articles of Confederation contained this language in Article II:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. [Emphasis added.]
Nothing like this appeared in the Constitution drafted in Philadelphia. On the other hand, the document did extend to Congress the power 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, or in any department or officer thereof.”
This is the “necessary and proper” clause so feared by the Antifederalist critics of the proposed Constitution. As the Antifederalist “Brutus” wrote, “No terms can be found more indefinite than these, and it is obvious, that the legislature alone must judge what laws are proper and necessary for the purpose.”
Once the Constitution was released to the public, its champions set out to sell it to a skeptical populace. Wilson sought to assure the people that the government’s powers were expressly limited by enumeration:
The congressional authority is to be collected, not from tacit implication but from the positive grant expressed in the [Constitution].… [E]very thing which is not given [to the national government], is reserved [to the states].
But this assertion was met with incredulity by many who read the document. Jefferson responded:
To say, as Mr. Wilson does that … all is reserved in the case of the general government which is not given … might do for the Audience to whom it was addressed, but is surely gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation [Article II], which declared that in express terms.
Arthur Lee of Virginia also scoffed (PDF):
Mr. Wilson’s sophism has no weight with me when he declares … that in this Constitution we retain all we do not give up, because I cannot observe on what foundation he has rested this curious observation.
The lack of something like Article II of the Articles of Confederation, along with the lack of a bill of rights, created enough concern about the proposed Constitution that its advocates felt compelled to promise to make things right.
After ratification, the first Congress, largely on Rep. Madison’s initiative, set to work writing a bill of rights. (Other nationalists would have just as soon broken their promise.) Twelve amendments made the final cut in the congressional committee. Amendment XII (later to become X when two failed to be ratified by the states) read,
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.
It was a pale reflection of the old Article II. On seeing this language, Rep. Thomas Tudor Tucker of South Carolina rose to amend the amendment by inserting the word expressly before the word delegated.
According to the record, Madison objected that “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 minutiae.” (Emphasis added.)
Tucker’s amendment failed, and failed again when submitted to the whole Congress. (According to the record, “Mr. Tucker did not view the word ‘expressly’ in the same light with the gentleman who opposed him; he thought every power to be expressly given that could be clearly comprehended within any accurate definition of the general power.”)
Thus, the man who promised that the powers of government under the new Constitution would be “few and defined” now said that any constitution must have unenumerated implied powers. His colleagues should not have been surprised. In Federalist 44 Madison had written that “No axiom is more clearly established in law or in reason than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.”
Even earlier, before the convention, writes biographer Ketcham, Madison “opposed a strict definition of ‘the extent of Legislative power’” in advising Kentuckians who were contemplating a state constitution.
Madison was right, of course. No constitution could expressly enumerate all powers without appending an endless list of minutiae. There must be implied powers — and that’s the danger of any constitution. Implied powers of course must be inferred, and inference requires interpretation. Who is likely to have the inside track in that process: those who seek to restrict government power or those who seek to expand it?