Correcting Dr. Will

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George Will's
curt dismissal of Rep. Ron Paul in Will's recent Newsweek editorial
requires further examination.

According
to Will, Paul "believes, with more stubbornness than evidence,
that the federal government is a government of strictly enumerated
powers." Will rightly points to Article I, 8 as the enumeration
of the powers of Congress.

What does
the august Mr. Will mean, exactly, in claiming that Rep. Paul's
position is based on "more stubbornness than evidence"?
He does not say. But he should.

As John
Taylor of Caroline noted in New
Views of the Constitution
(1823), the Philadelphia Convention
(in which the federal Constitution was drafted) witnessed an attempted
remaking of the American government from a federal to a national
one by a coalition of avowed monarchists (notably including Alexander
Hamilton) and other nationalists (including James Madison). These
people wanted, as the Virginia Plan demonstrated, to give Congress
general legislative powers and federal courts general jurisdiction.

But they
failed. Instead of the monarchist-nationalist coalition's general
grants of power, the Constitution features a list of types of cases
over which federal courts can be given jurisdiction in Article III
and an enumeration of types of issues with which Congress may concern
itself in Article I, 8.

How is
this enumeration to be understood? The late, great Raoul Berger
explains in Government
by Judiciary: The Transformation of the Fourteenth Amendment

that such enumerations were understood at English common law to
be exhaustive. If Berger's argument from the history of the language
the Philadelphia Convention was using were not enough, we have corroboration
of this definition from the monarchist-nationalists themselves.

In response
to the argument for a bill of rights made by anti-immediate ratification
Republicans (as opponents of ratifying the unamended Constitution
styled themselves), Alexander Hamilton insisted in The
Federalist
that such a document would be dangerous. Since
lists were interpreted as exhaustive, he reasoned, any right not
included in the enumeration would lack protection — would cease
to be a right at all. Since it was impossible to list all of a man's
rights, he concluded, the Constitution should list none of them.

Besides
this indirect answer to the question whether Article I, 8 exhaustively
listed Congress's powers, we have direct ones. According to the
leading Virginia Ratification Convention (1788) Federalists George
Nicholas and Gov. Edmund Randolph, the federal government was only
to have the powers it was "expressly delegated." Where
did one find the "express" delegation of powers to Congress?
Why, in Article I, 8.

When John
Marshall's Supreme Court ruled to the contrary in the 1819 case
of McCulloch v. Maryland, James Madison wrote that if Virginians
had known in 1788 that Article I, 8 would NOT be read as an exhaustive
list, they never would have ratified the Constitution.

Explanations
of the powers of Congress similar to that of Randolph and Nicholas
were also offered up by leading Federalists in Pennsylvania (future
Supreme Court Justice James Wilson), South Carolina (future Federalist
presidential nominee Charles Cotesworth Pinckney), and Massachusetts
(future Supreme Court Justice William Cushing).

When a
bill of rights was affixed to the Constitution, it featured the
Randolph-Nicholas principle prominently in what came to be known
as the Tenth Amendment (which made explicit the principle that Federalist
leaders such as Nicholas, Randolph, Pinckney, Wilson, and Cushing
had already said was implicit). (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.") Its authors also conceded the force of
the Federalist argument about the impossibility of listing all rights
by including the Ninth. (The Ninth Amendment reads, "The enumeration
in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people").

George
Will's disagreement with Ron Paul about the extent of congressional
power, then, must really come down to a disagreement over the significance
to be attached to the explanation of the Constitution offered by
Federalists in their campaign to persuade Americans to ratify it:
Rep. Paul consistently respects the ratifiers' understanding; perhaps
Mr. Will does not.

February
22, 2007

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail
] is associate professor of history at Western Connecticut
State University in Danbury, Connecticut. He is the author of the
forthcoming Politically
Incorrect Guide to the Constitution
(Regnery, 2007).

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