• 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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