Correcting Dr. Will


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