The Constitution or Liberty
25. Feb, 2009 
8 Comments
by Sheldon Richman, Foundation for Economic Education
“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.”
We might think those words—or words to the same effect—are in the U.S. Constitution. But they are not. They are from Article II of the Articles of Confederation, America’s first constitution. They could have been placed in the U.S. Constitution but were deliberately left out in 1787.
After the Constitution was ratified, something like Article II was added to the Constitution as the Tenth Amendment. Unfortunately it is like Article II in the same sense that a whale is like a fish—superficially.
The Tenth Amendment says: “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.”
The most significant difference is that Article II qualifies the word delegated with expressly. The Tenth Amendment does not. The difference was no oversight. This suggests that while the Articles of Confederation was a document of express, enumerated congressional powers, the Constitution, contrary to widespread belief, was not.
Professor Calvin H. Johnson of the University of Texas Law School published a paper in 2006 that sheds light on this subject. “The Dubious Enumerated Power Doctrine” presents formidable evidence that the framers had no intention of limiting the national government’s powers to the 16 items listed in Article I, Section 8, of the Constitution.
“In carrying over the Articles’ wording and structure, they removed old Article II’s limitation that Congress would have only powers ‘expressly delegated’ to it,” Johnson writes. “When challenged about the removal, the Framers explained that the expressly delegated limitation had proved ‘destructive to the Union’. . . . Proponents of the Constitution defended the deletion of ‘expressly’ through to the passage of the Tenth Amendment. That history implies that not everything about federal power needs to be written down.”
The Constitutional Convention operated on the assumption that more, not fewer, powers were needed for the national government than were allowed under the Articles. Johnson quotes some of the framers to indicate this attitude. “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],” Madison said to Thomas Jefferson.
When the convention began its work the delegates passed resolutions to guide the committees that were drafting particular sections of the document. Johnson writes that one such binding resolution specified that the new government would have every power enumerated in the Articles and an additional power (quoting the resolution): “to legislate in all Cases for the general Interests of the Union.”
This is contrary to the common view that Article I, Section 8, of the Constitution necessarily exhausts the national government’s powers. That view is undermined by several inconvenient facts. For example, the first clause of Article I, Section 8, states, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. . . .” That’s a hefty grant of power that does not appear to be further restricted by any subsequent language. (Jefferson and Madison disagreed. See Federalist 41 by Madison, keeping in mind that the Federalist Papers were essentially ad copy for the Constitution and against the Anti-federalist opposition.) The 16 specific powers that follow don’t appear to be limits on the taxation clause but rather coequal provisions.
But then why include a list of powers? Johnson writes: “Reading the Constitution as giving a general power to provide for the general welfare means that the enumerated powers of clauses 2 through 17 are illustrative of what Congress may do within an appropriately national sphere, but are not exhaustive.”
In other words, Congress can’t do whatever it wants. It can only act on behalf of the common defense and general welfare. Thus in the eyes of the framers, the government would be limited, but not nearly as limited as today’s constitutionalists believe. The view among the framers was that Congress’s jurisdiction covered all matters national in scope, leaving local matters to the states. But, as Johnson writes, “both Madison and Hamilton argued that the division between the federal and state governments was a legislative or political question that would be set in the future by competition between those governments for the loyalty of the people.”
Implied Powers
We know that the Constitution must have contained implied powers from the beginning. Article I, Section 9, expressly prohibits Congress from doing certain things, such as passing ex post facto laws and bills of attainder, granting titles of nobility, and interfering with the slave trade until 1808. Why would such prohibitions have been thought necessary if Congress could exercise only the enumerated powers? Another example: The Fifth Amendment limits the power of eminent domain, but the Constitution itself does not enumerate any power of eminent domain. It must be implied.
Johnson’s argument would not be news to the Anti-federalists, that group of early Americans who feared the proposed Constitution would create an imperial national government with virtually unlimited power. (It should be noted that southern Anti-federalists like Patrick Henry objected to an expanded national government in part because they feared the taxing power might be used to free their slaves. Thus was a good cause, decentralization of power, perhaps permanently stained by a link to the abomination of slavery. Samuel Johnson had it right, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”) When advocates of the proposed Constitution advertised the document as containing express, enumerated powers, the Anti-federalists and fellow travelers such as Thomas Jefferson scoffed.
For example, James Wilson said: “The congressional authority is to be collected, not from tacit implication but from the positive grant expressed in the [Constitution]. . . . [E]verything which is not given [to the national government], is reserved [to the states].”
To which Jefferson replied: “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 dictim, 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.”
How the Constitution was intended to be interpreted and how it was in fact interpreted under the pressure of public opinion were initially two different things. As historian and economist Jeffrey Rogers Hummel explains, “To oversimplify only slightly, the Federalists got their Constitution, but the Anti-Federalists determined how it would be interpreted.” For a while anyway.
Calvin Johnson is happy the Constitution has implied powers. No libertarian would be. But we must separate what the Constitution appears to say and how we evaluate it, and resist the temptation to let our political-moral views warp our reading. As Lysander Spooner in 1870 wrote, the Constitution “has either authorized such a government as we have had, or has been powerless to prevent it.” Liberty’s champions have to come to terms with that logic.
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Great post. Very informative.
Yes, “very informative” . . . and discouraging.
“the Constitution “has either authorized such a government as we have had, or has been powerless to prevent it.”
That profound statement by Lysander Spooner is correct and I have my doubts that few, if any, Champions of Liberty get the logic of it; particularly those so-called Champions of today.
The Constitution is a Law (the Supreme Law of the Land) to Rule government Officials in their official acts/capacity and a Law “prevents nothing”, so a Law has no power to stop anything at all. The Constitution rules no one in their private acts/capacity.
Does anyone always stop at all stop signs? There is a law to stop at stop signs but the law does not force anyone to stop. A law does not enforce itself, isn’t that simple logic, or simple common sense? If a person gets caught running thru a stop sign by the Enforcer (government/police/courts) of such laws then what is the prescribed punishment for breaking that law?
So, if the Constitution doesn’t enforce itself then who is the “Enforcer” of it? Is government/police/courts the enforcer of the Law that rules it obligated to enforce that law on itself? No! So, who is the Enforcer of the Law of the Constitution on government and what power of force does the Constitution delegate the Enforcer to use and what is the prescribed punishment of the guilty offender?
Allan
Poor use of logic in this article, not to mention the sophistry employed. I will illustrate with one example; ““The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. . . .” That’s a hefty grant of power that does not appear to be further restricted by any subsequent language.” The writer here attempts to convey that the power granted here is for Common Defence and General Welfare, but the power is for revenue, a plain reading of the text shows that. What about Common Defence and General Welfare? That’s given in the enumerated powers following. Nice try, but no cigar.
Allan..Enforcer. Not sure if your question was rhetorical, but if not, then the answer is the states and the people.
Len,
I am attempting to circumvent political rhetoric from the facts of what the Constitution says in writing and as applied to a Citizen when performing a Duty in Citizenship. Must what the Constitution says be interpreted for us, if so would any interpretation “constitutionally change” what is written in the constitution? Should each generation of People or Presidential Administrations have a different interpretation?
The idea of a different interpretation changing the Constitution obliterates the Constitution’s written method of amendment. Amendment requires three fourths of the State Legislatures/Convention in agreement to amend. Does anyone suppose a proper Amendment could “change” the body of the Constitution? Does amend mean change or simply add an unforeseen in 1787 power of some future necessity of the Federal Government?
The Constitution is the People’s Law (Preamble) to Rule their government and the People alone are obliged to enforce it; (power to enforce Article I, Section 2 – the power to hire (elect) Lawmakers.). Government – Federal and State – are defined in part in the last paragraph of Article VI.
I find nothing in the Constitution delegating any power to the States over the delegated powers of the federal government. According to the 1787 Constitution the Senate is chosen by the States and therefore is the State’s voice in the Federal Government.
The “general welfare” clause means just that and does not apply to any one person or any particular group of people. The Federal government does not own anything – everything in government’s possession belongs to the People, all USA Citizens. If government doesn’t own it then giving it away what is not owned is called theft. In Americans Duty in Citizenship they are obligated to judge, not sin or sinners, but crime and criminals. Under the Constitution’s Justice system the Citizenry as Jurors is obligated to dispense to fellow citizens accused of committing a crime by government prosecutors; Amendment 5, 6, and 7, of the Bill of Rights (for starters). Check out FIJA for more on that subject.
Since 1787 the existence and lifetime of the Republic and Liberty depends, not on government, but solely on the People to enforce their Law, Constitution, on government.
Allan
Jefferson complained that the Constitution was only as strong as the morality of the people who upheld it. I believe he could see down the road. It was written to be applied when resting upon it’s Biblical foundation…thou shalt not steal, thou shalt not kill, treat each other with kindness and equal respect, do not oppress the weak or live for money, etc. Without this foundation it’s intent could (and someways has) become twisted and ineffective in application. Like in the Bible, our leaders were to be moral, unselfish servants of the people. They were not to be professional dictators bent on their own glorification and pocketbooks. I would LOVE to see elected officials at any level serve without salaries. I promise, if elected president, I will donate 90% of my salary to charity and really redistribute the wealth by personal example (true leadership)! I need little more than a roof over my head, a few clothes on my back, and enough to eat to remain healthy and happy. Let’s see any federal politician do that! I would even carpool to work. It’s a dirty job…but it shouldn’t be.
Susan,
Yes, morals are important but the Constitution is about Law (government takes an Oath to the Constitution (last paragraph of Article VI); can morals be made a law especially for government Officials to obey? What morals would you suggest government make into law for the Citizenry to live by?
Isn’t morals an emotion and should emotions be made a crime?
I hear we already have “hate” laws on the books and maybe love laws (gay marriage) are just around the corner.
I think laws on or about emotion defy justice. It is impossible for a thought to be a crime. It’s also impossible for an accident to be a crime. A crime can only be an act done with “intent” to do harm.
According to the Constitution the Citizenry, not government, is obligated to dispense justice when serving on a citizen jury; reference Amendment 5, 6 and 7 of the Bill of Rights.
I say when the Citizenry gets around to stop trying to do God’s work of judging sin and sinners and get around to doing the Constitution’s work of judging crime and criminals thereby dispensing justice to “government accused” fellow Citizens America will be the home of the brave and free.
The people Americans reelect to make law are all criminals; they have at one time or another committed the crime of perjury, if not treason, by dishonoring the Oath of Office – I think it is past time we fire by voting to not reelect “known” criminals.
Allan