The Anti-Federalists Were Right Again

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Although there are very few members of Congress who, like Representative Ron Paul (R-TX), can be considered strict constitutionalists, there is one clause in the Constitution that no member of Congress has ever had any trouble following. I am referring, of course, to the “elastic clause,” the “sweeping clause” — the clause which states that Congress has 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. ~ Art. I, Sec. 8, Par. 18

Is it any wonder that James Madison, the “father of the Constitution,” remarked about this clause in Federalist No. 44: “Few parts of the Constitution have been assailed with more intemperance than this.”

The “necessary and proper clause,” which was added to the Constitution by the Constitutional Convention’s Committee on Detail, and left unchanged by the Committee on Style, was not the subject of any debate in the Convention. The Committee on Detail rejected, in favor of specifically expressed powers of Congress, appendixed by this clause, the proposal of Gunning Bedford (1747—1812), a member of the Constitutional Convention from Delaware, that Congress should have the power “to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.” Alexander Hamilton’s proposal that Congress should have “power to pass all laws whatsoever,” subject to veto by the executive, was not even considered.

The absence of debate over this clause did not extend past the Constitutional Convention. The reason this ambiguous clause was assailed, both in and out of the state ratification conventions, by the opponents of the Constitution — the Anti-Federalists — is because it appeared to them to be an open-ended grant of unlimited and undefined power to the national government.

The Anti-Federalist who called himself “Brutus” voiced his objection to the “elastic clause” in his first essay, which was published in the New-York Journal in October of 1787 — only a month after the close of the Constitutional Convention:

This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of section 8th, article 1st, it is declared “that the Congress shall have 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 office thereof.”

A power to make all laws, which shall be necessary and proper; for carrying into execution, all powers vested by the constitution in the government of the United States, or any department or officer thereof, is a power very comprehensive and definite, and may, for ought I know, be exercised in such manner as entirely to abolish the state legislatures.

Future president James Monroe, speaking at the Virginia ratifying convention, understood the “sweeping clause” to mean that “there is a general power given to them [Congress] to make all laws that will enable them to carry their powers into effect. There are no limits pointed out. They are not restrained or controlled from making any law, however oppressive in its operation, which they may think necessary to carry their powers into effect.”

Along with the obvious, another objection to this clause was that it would be up to Congress to decide on what was necessary and proper. This was the argument of “Old Whig,” writing in Philadelphia’s Independent Gazetteer in the same month as “Brutus,”

My object is to consider that undefined, unbounded and immense power which is comprised in the following clause; — “And, 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 offices thereof.” Under such a clause as this can any thing be said to be reserved and kept back from Congress? Can it be said that the Congress have no power but what is expressed. “To make all laws which shall be necessary and proper” is in other words to make all such laws which the Congress shall think necessary and proper, — for who shall judge for the legislature what is necessary and proper? — Who shall set themselves above the sovereign? — What inferior legislature shall set itself above the supreme legislature? To me it appears that no other power on earth can dictate to them or controul them, unless by force.

Supporters of the new Constitution, of course, disagreed. Like George Nicholas (1754—1799), a member of the Virginia ratifying convention: “Who is to determine the extent of such powers? I say, the same power which, in all well-regulated communities, determines the extent of legislative powers. If they exceed these powers, the judiciary will declare it void, or else the people will have a right to declare it void.” Madison had argued in Federalist No. 44 that should Congress “misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning” then “the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts.”

But what if the executive merely rubber-stamps legislation and the judiciary is a coconspirator in the usurpation? These are usually what happens. We are still waiting for all of those Bush vetoes to put a check on Congress. And as Stephen Gardbaum pointed out in an article for the Texas Law Review:

The New Deal Court’s own constitutional justification for its radical expansion of the scope of federal power over commerce was that the congressional measures in question were valid exercises of the power granted by the Necessary and Proper Clause and were not direct exercises of the power to regulate commerce among the several states.

The concept of checks and balances is nice in theory, but in practice it is a myth. And what is this nonsense from Nicholas about the people having a right to declare legislative acts void?

Even though advocates of the new Constitution maintained, like Edmund Pendleton (1721—1803), the president of the Virginia ratifying convention, that the “sweeping clause” did not go “a single step beyond the delegated powers,” a national bank was soon proposed by the first Congress. In arguing against the bank, future president James Madison, then a member of Congress, stated about this clause:

Whatever meaning this clause may have, none can be admitted, that would give an unlimited discretion to Congress.

Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end, and incident to the nature of the specified powers.

According to Madison, the power exercised by the bank bill

  • was condemned by the silence of the constitution,
  • was condemned by the rule of interpretation arising out of the constitution,
  • was condemned by its tendency to destroy the main characteristic of the constitution,
  • was condemned by the expositions of the friends of the constitution, whilst depending before the public,
  • was condemned by the apparent intention of the parties which ratified the constitution, and
  • was condemned by the explanatory amendments proposed by Congress themselves to the Constitution.

Although the bank bill passed anyway, the debate over the “elastic clause” did not suddenly cease.

One good thing that came out of the first Congress was, of course, the Bill of Rights — another thing that Bush has made war against. It is because of the ambiguity of clauses in the Constitution like the “necessary and proper clause” that some of the Anti-Federalists called for the addition of a bill of rights.

In the debates in the Virginia ratifying convention, George Mason (1753—1792) — who did not sign the new Constitution — began his argument for the addition of a reserved powers clause to the Constitution with a reference to the infamous “sweeping clause”:

Mr. Chairman, gentlemen say there is no new power given by this clause. Is there any thing in this Constitution which secures to the states the powers which are said to be retained? Will powers remain to the states which are not expressly guarded and reserved?

I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states.

Many gentlemen, whom I respect, take different sides of this question. We wish this amendment to be introduced, to remove our apprehensions. There was a clause in the Confederation reserving to the states respectively every power, jurisdiction, and right, not expressly delegated to the United States. This clause has never been complained of, but approved by all Why not, then, have a similar clause in this Constitution, in which it is the more indispensably necessary than in the Confederation, because of the great augmentation of power vested in the former? In my humble apprehension, unless there be some such clear and finite expression, this clause now under consideration will go to any thing our rulers may think proper. Unless there be some express declaration that every thing not given is retained, it will be carried to any power Congress may please.

Mason was referring to Article II of the Articles of Confederation, which states:

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.

Mention of the appearance of this clause in the Articles and its absence in new Constitution was also made, among others, by the dissenters in the Pennsylvania ratification convention who published The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents and by the Anti-Federalist who wrote under the name of “Old Whig,” and stated:

It is most certain that we find no such clause or article in the new constitution. There is nothing in the new constitution which either in form or substance bears the least resemblance to the second article of the confederation. It might nevertheless be a fair argument to insist upon from the nature of delegated powers, that no more power is given in such cases than is expressly given. Whether or not this ground of argument would be such as we might safely rest our liberties upon; or whether it would be more prudent to stipulate expressly as is done in the present confederation for the reservation of all such powers as are not expressly given, it is hardly necessary to determine at present. It strikes me that by the proposed constitution, so far from the reservation of all powers that are not expressly given, the future Congress will be full authorized to assume all such powers as they in their wisdom or wickedness, according as the one or the other may happen to prevail, shall from time to time think proper to assume.

To their credit, the Federalist-dominated first Congress did add a reserved powers clause to the Constitution — the Tenth Amendment. However, this amendment contains a notable omission, which can be seen when it is compared with the similar Article II of the Articles of Confederation:

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.

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.

A proposal to insert the word “expressly” in the Tenth Amendment was defeated by both houses of Congress in 1789. Although the omission of this one word does not seem too significant, it would later prove to be another fatal flaw in the Constitution.

An expansive reading of the “elastic clause” was given in the first case before the Supreme Court in which the meaning of this clause was considered. In the case of U.S. v. Fisher (1803), Chief Justice John Marshall broadly interpreted the clause, ruling that Congress “must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution.”

Recognizing the danger to liberty that would result from the continued expansive reading of the “elastic clause,” Representative John Clopton (1756—1816) proposed a constitutional amendment in 1806 that would have required the clause to explicitly

be construed so as to comprehend only such laws as shall have a natural connexion with and immediate relation to the powers enumerated in the said section, or to such other powers as are expressly vested by this Constitution in the Government of the United States, or in any department or officer thereof.

The amendment was necessary, according to Clopton, because

the construction which has been given to this clause, in the cases alluded to, was, that it conveys to Congress a right to make any laws whatsoever, which they should determine to be expedient for carrying into execution the powers enumerated in this section, or in any other part of the Constitution, whether such laws should have any sort of relation to, or connexion with, any of those enumerated powers or not. Under this construction the ever-to-be execrated sedition act was passed; it was passed as a measure expedient, necessary, and proper, for carrying into execution the said enumerated powers, with none of which powers had it any more connexion than pitchy darkness has with the blaze of a meridian sun.

Clopton was not surprised at the construction given to the clause because he understood human nature:

That the clause I have read, should be liable to receive a construction so broad and extensive is, perhaps, not very much to be wondered at, when we consider the strong propensity existing in human nature to grasp at unwarrantable power; . . . There is something fascinating in the possession of power. When no limits are fixed to the exercise of it, everything within its reach is legalized according to the will of the possessor.

This broad interpretation of the “elastic clause,” warns Clopton, cannot be allowed to remain because “a power has been exercised which was never intended to be vested in any department of this Government.” Unfortunately, the amendment failed to pass.

Instead of Clopton’s proposed amendment, what has become the final word on the interpretation of the “necessary and proper clause” is the often-cited case of McCulloch v. Maryland (1819). Here Justice Marshall paved the way for the growth of the federal leviathan by capitalizing on the omission of the word “expressly” from the Tenth Amendment and on the ambiguity of the infamous “elastic clause”:

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word “expressly,” and declares only that the powers “not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people”; thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments.

Although, among the enumerated powers of government, we do not find the word “bank,” or “incorporation,” we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government. It can never be pretended that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that a government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution.

But the constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added that of making “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 thereof.”

Echoing James Madison, the ardent Jeffersonian and strict constitutionalist John Taylor (1753—1824) was one who also strongly objected to Justice Marshall’s decision. Writing in Construction Construed and Constitutions Vindicated (1820), Taylor shows how “necessity, inference and expediency never fail to beget an endless successive progeny”:

Roads are necessary in war; therefore congress may legislate locally concerning roads. Victuals, manufactures, and a certain state of national manners, are more necessary in war; therefore congress may legislate locally, concerning agriculture, manufactures and manners. The favour of the Deity is more necessary than either; therefore congress may provide salaries for priests of all denominations, in order to obtain it, without infringing the constitutional prohibition against an establishment; or they may incorporate sects, and exempt them from taxation. Roads are more necessary for collecting taxes than even banks. Taverns are very necessary or convenient for the officers of the army, congress themselves, the conveyance of the mail, and the accommodation of judges. But horses are undoubtedly more necessary for the conveyance of the mail and for war, than roads, which may be as convenient to assailants as defenders; and therefore the principle of an implied power of legislation, will certainly invest congress with a legislative power over horses. In short, this mode of construction completely establishes the position, that congress may pass any internal law whatsoever in relation to things, because there is nothing with which, war, commerce and taxation may not be closely or remotely connected.

The Anti-Federalists were right again. Rather than being “a textual guardian of principles of separation of powers, principles of federalism, and unenumerated individual rights,” as was argued in a 1993 Duke Law Review article, the “necessary and proper clause” is just the opposite. It is true that our government needs to return to the principles of the Constitution — and perhaps that is the best we can hope for — but even that is not enough. It is imperative that the wisdom of the Anti-Federalists, at least on the subject of the centralization of federal power that would result under the Constitution, be reconsidered. The Federalist of Hamilton, Jay, and Madison has taken center stage long enough.

[All quotations from "Brutus" and "Old Whig" are taken from Regnery edition of The Anti-Federalists: Selected Writings and Speeches, edited by Bruce Frohnen. Those from Congressman John Clopton are from the Annals of Congress. All other quotations are taken from Elliot's Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia, in 1787, Farrand's The Records of the Federal Convention of 1787, and Madison's Notes of Debates in the Federal Convention of 1787.]

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