An American decentralized government officially operated under a constitution, the Articles of Confederation, between 1781 and 1789. During this time, conservatives who initially opposed the decentralized nature of Articles of Confederation continued their effort at establishing a powerful national government.
Needless to say, the debate over what ARE (plural) or what IS (singular) the United States of America never stopped with the ratification of the Articles and culminated in the drafting of an entirely new Constitution in 1787. This new constitution dramatically shifted the entire balance of governmental authority in the former British colonies that less than two decades before spilled blood over detaching themselves from a perceived overbearing central government.
As will be seen, there was a significant lack of discussion or debate about incorporating Article II (see Chapter 2) of the Articles of Confederation into the new Constitution. Certainly, the role of the national government versus the states was on the minds of the delegates but there was a clear shift in the political winds towards empowering a national centralized government at the expense of state authority.
Whether this strong will was nothing but a reflection of certain powerful elites with significant financial incentives or there really was a grassroots movement among the people to completely scrap the Articles of Confederation is an interesting discussion that exceeds the scope of this work. The reality is that each state sent delegates to the constitutional convention in Philadelphia to revise the Articles of Confederation, and after several weeks of closed-door secret meetings, a brand new constitution was devised.[1] Fortunately, James Madison took notes during the meetings, which provide modern scholars a window into what happened.
It was at the 1787 Constitutional Convention that provisions designed to “energize” the federal government were included that would later be latched onto by future Congresses and the Supreme Court to massively grow the national government. Many had concerns about these provisions as can be seen in the debates. In hindsight, after 230 years, we can see those concerns were valid and those provisions would become legal timebombs, just waiting to be triggered by the needs of a “living, breathing constitution.”
The Constitutional Convention of 1787
The Constitutional Convention of 1787 was called to address specific problems that arose for the confederation Congress while operating under the Articles of Confederation. Many claimed that one of the most pressing problems that faced the confederation government was its inability to act with any sense of real authority or power when it came to foreign affairs and policy.
For example, the inability to enforce trade restrictions and international treaties demonstrated the Confederation’s weakness and caused frustration among those who understood the importance of acting as a unified body when it came to international relations. Nor could the Confederation Congress engage in war, coin money, regulate currency, or appropriate money without the consent of at least nine states. Significantly, the Confederation Congress could not impose direct taxes in order to pay for military operations it was asked to direct but had to rely on voluntary contributions from state governments.
Those who strongly favored restructuring the Articles of Confederation were initially known as Nationalists but came to be known ironically as Federalists even though they were pushing for a true national government with sovereign authority. They wanted to expand the power of Congress to allow for broader authority to tax and regulate international trade. Federalists claimed to want a balanced republican national government to avoid the hazards of a pure democracy. Those who opposed a strong national, centralization push would become known as the Antifederalists.[*]
There is no question that the Federalists went into the 1787 Constitutional Convention with the intent of forming a new national government and diminishing the authority of the individual states, although there was a strong minority of delegates that feared a strong centralized government and sought to temper the push to diminish state sovereignty.[2]
The debates between these two factions during the Convention provide important insight into the meaning and importance of the centralized (federal) system of government that was ultimately created.
Edmund Randolph of Virginia submitted the initial working draft of the Constitution to the Convention for consideration. Randolph’s plan became known at the Virginia Plan. Randolph’s proposal established a national legislature (Congress) consisting of two legislative chambers. One of the first discussions concerning the rights of the states under the Virginia Plan took place among James Wilson, Roger Sherman, James Madison, and George Read. At issue was whether the American people would directly elect representatives to the lower house (House of Representatives), or whether the state governments would elect the national representatives. Wilson insisted that national authority should “flow” from the legitimate source of all authority—the American People. Wilson contended the People should be able to vote directly for their representatives in the new national Congress.[3]
Roger Sherman responded to Wilson. He noted that the People would be electing their state legislatures and therefore their interests would be represented in a Congress elected by state governments. For Sherman, the purpose of the new government was “(1) defense against foreign danger, (2) [defense] against internal disputes and resort to force; (3) [forming] treaties with foreign nations; [and] (4) regulating foreign commerce and drawing revenue from it.” Sherman felt all other areas of control should remain with the states.
George Read feared that the federal government, as proposed in the Virginia Plan, would “of necessity swallow all of [the states] up.”[4]
Madison acknowledged the purposes of the new government Sherman set forth but added that the new national government should also be able to protect private rights and mete out justice when necessary. Wilson also responded that he saw “no incompatibility between the national and state governments, provided the latter were restrained to certain local purposes….”[5]
The role of state authority under the new constitution also arose in the debate over how members of the Senate would be chosen. John Dickinson (the same John Dickinson who drafted the draft version of the Articles) moved that the state governments should elect the members of the Senate. Dickinson believed that the preservation of the states was “indispensable” and an attempt to abolish the states “would degrade the councils of our country, be impracticable, [and] would be ruinous.”[6]
Over the objections of Madison and Wilson, George Mason supported Dickinson’s motion to have the state governments elect Senators. Mason added that “whatever power may be necessary for the national government, a certain portion must necessarily be left in the states.” Mason recognized that it would be impossible for just one government to provide equal justice to all parts of such a large nation. Mason also believed the state legislatures needed some way to defend themselves from “encroachments of the national government.” Mason believed sharing authority in the national legislature would be one way of protecting state government interests.[7]
Randolph’s Virginia Plan was not the only plan submitted to the Constitutional Convention for consideration. Several weeks after deliberation on the Virginia Plan commenced, William Patterson of New Jersey submitted an alternate plan for consideration; this plan became known as the New Jersey Plan. Whereas the Virginia Plan was decidedly more national in nature, even granting the national legislature authority to veto state laws, the New Jersey plan reserved a substantial amount of authority to the states. Debates over the two plans led the delegates to again examine the nature of state and national sovereignty.
Enter Alexander Hamilton who remained low key up until this point in the Convention. As an avid nationalist, Hamilton proposed that neither the New Jersey Plan nor even the Virginia Plan was national enough. Hamilton called for national authority vested with full sovereignty without any limitations or defined spheres of authority. Hamilton rejected the theory of imperium in imperio stating that two sovereignties could not exist within the same limits. Although Hamilton would allow for the states to nominally exist, they would exist essentially as administrative units subject to the full and sovereign authority of the national government.
Even the Federalist James Wilson could not agree with Hamilton on this point and recognized the need for state governments.[8] Although Hamilton’s desire for a completely national government was never adopted, Hamilton would come to accept (perhaps reluctantly) the compromise that placed defined limits on federal authority and fought diligently for its ratification.
The Convention ultimately voted down the New Jersey Plan, leaving the Virginia Plan as the working draft. But as the Convention debates wore on, the issue of state sovereign authority would continue to surface. In support of his motion to make representation among the states equal in the Senate, Oliver Ellsworth of Connecticut, a future Federalist Party member and Supreme Court justice, opined that the United States should be considered “partly national, partly federal.” Ellsworth explained that the national government should extend to objects concerning national security. Ellsworth believed it to be the responsibility of the state governments to preserve his rights thereby preserving “domestic happiness.”[9]
By July of 1787, the Convention had accepted what became known as the “Great Compromise” whereby representation in the House of Representatives was based on the national principle of proportional representation with representatives elected by the People, and the Senate retained the confederate principle of equal state representation with the state legislatures appointing Senators.
During the debates that led to the Great Compromise, the Convention addressed the scope of national authority set forth in the Virginia Plan. Article VI of the Virginia Plan stated:
Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be empowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.” [emphasis added].[10]
Compared to Article II of the Articles of Confederation, this language in the Virginia Plan was a drastic and significant shift of power to Congress at the expense of the states.
Article VI came up for discussion on July 17, 1787. The Convention initially accepted, with some minor changes, the ability of the national government to “legislate in all cases to which the separate States are incompetent…”, but disagreement arose over the provision that allowed Congress to veto state laws.
Gouverneur Morris felt Congressional authority to veto state laws “as likely to be terrible to the states” and, along with Roger Sherman, did not believe it to be necessary. Luther Martin considered the provision “improper and inadmissible”. Madison attempted to defend the clause by arguing that it was necessary for the “efficacy and security” of the national government. Despite Madison’s support, the Congressional veto of state laws was struck down in Convention by a significant majority of the voting states. At that point, Luther Martin moved without objection to add a provision that would later become the Supremacy Clause.[11]
With the Convention having rejected the New Jersey plan but incorporating some of its elements into an amended Virginia Plan, a Committee of Detail was assigned the duty of drafting the new Constitution, and incorporating the resolutions passed by the Convention. This committee consisted of John Rutledge, Nathanial Gorham, Ellsworth, Wilson, and Randolph.
Significantly, the Committee of Detail eliminated the initial wording of the Virginia Plan that authorized the new federal government “to legislate in all cases to which the separate states are incompetent.” In its stead, the committee set forth a list of enumerated powers that ultimately was listed under Article I, section 8 in the final version of the Constitution submitted to the states for ratification.
Unfortunately, the committee’s meetings were not recorded. Whether the committee intended to fundamentally reign in the scope of national authority that the Convention up to that point had approved of is not certain. Some argue that the committee was simply acquiescing to the general expectations of the Convention delegates.[12]
For purposes of understanding the subsequent history of the Tenth Amendment, special attention should be paid to the third clause. Here, the committee included the power to “regulate commerce with foreign nations, and among the several states….” As will become abundantly clear, the Interstate Commerce clause would eventually be relied upon by Congress and the Supreme Court to permit unprecedented federal government expansion over the lives of Americans.
Despite the thousands of pages of treatises, books, and court decisions that would be devoted to understanding these powers in the future, the Convention delegates approved the committee’s changes without much discussion or objection. With the provision providing for a national veto of state laws having already been voted down, and the initial broad and undefined scope of Congressional authority as outlined in the Virginia Plan having been gutted in favor of a specified list of powers, the drafters of the Constitution attempted to make clear their intention clear that the states were to retain some level of sovereign dignity despite the institution of a powerful central government.
Necessary & Proper, Supremacy, and General Welfare Clauses
In addition to the Interstate Commerce clause, special attention needs to be called to other proposed provisions that at the time appeared to be innocuous but would subsequently provide the basis for a massive expansion of federal government in contrast to the intent of the Framers. These provisions are commonly referred to as the following: the Necessary and Proper Clause, the Supremacy Clause, and the General Welfare Clause.
At the same time the Committee of Detail was specifically limiting the scope of Congressional power to enumerated powers, the committee also added the “Necessary and Proper” clause, which the Supreme Court would later use to justify significant implied federal powers.
The” Necessary and Proper” clause states that Congress shall have the power to “[m]ake all Laws which shall be Necessary and Proper for carrying into the execution the Foregoing powers….”[13] The committee listed this clause as the last of Congress’ enumerated powers in what became Article I, section of 8 of the Constitution.
At the Convention, the only discussion concerning the Necessary and Proper clause (other than the unrecorded discussions among the members of the Committee of Detail) was a brief motion made by Madison to add “and establish all offices” between the words “necessary” and “proper”. Morris, Wilson, Rutledge, and Ellsworth all believed the addition to be unnecessary and Madison’s motion was defeated.[14]
There was no discussion or concern during the Convention debates regarding whether the Necessary and Proper Clause inappropriately expanded the scope of Congressional power beyond those listed in the previous clauses, and there was no concern at the time the clause infringed on state sovereignty. Only when it came time for the Convention delegates to sign the proposed constitution did Elbridge Gerry, Edmund Randolph, and George Mason mention their concerns with the potential scope of power this clause may imply. Yet, it was clear from the Convention debates, at least most of the delegates did not intend for the Necessary and Proper Clause to undermine the idea that Congressional power was to be limited to those powers enumerated in Article 1, Section 8.
James Wilson, one of the authors of the Necessary and Proper Clause, would later explain during the Pennsylvania ratification debates that it was clear the clause did not allow for undefined federal authority because the clause was limited by the language “for carrying into execution the foregoing powers.” Wilson added that “[the Necessary and Proper Clause] is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.”[15]
Federalists throughout subsequent ratification debates agreed with the interpretation put forth by Wilson. No less than James Madison, George Nicholas, Edmund Pendleton, William Maclaine, and Thomas M’Kean all insisted that the Necessary and Proper Clause did not authorize an extension of Congressional powers beyond the enumerated list in Article I, Section 8.[16]
Thus, the Federalists claimed that the Necessary and Proper Clause offered nothing more than what was already in inherent in the enumerated clause scheme: “that the clause authorized only the enactment of laws that were incidental powers, and that this authority would have been inherent in the enumerated powers had there been no Necessary and Proper Clause at the end of the list.”
This would likely explain the lack of any significant debate over the clause during the Constitutional Convention. [17] There was no significant debate apparently because no one, Federalist or Antifederalist alike, considered the meaning of the clause to disrupt the balance of federal and state power established by the rest of the Constitution.
Nor did the drafters consider the Supremacy Clause a disruption to the balance of state and federal power. The Supremacy Clause states:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”[18]
Many casual readers of the Constitution believe this clause means that federal law is supreme to the states in all matters. But that is not what the Supremacy clause means or says. According to Professor Robert Natelson, the Supremacy Clause simply clarified rules of Constitutional interpretation that would have existed even without the inclusion of the clause. The purpose of the clause was to minimize future disputes.[19]
Nevertheless, even if Professor Natelson’s understanding is correct, that rule of interpretation was no minor sidebar because it required the federal law to trump state law any time there was a conflict—this was a major shift in power to the federal government compared to the Articles of Confederation.
Why Luther Martin, a well-known Antifederalist, would propose the Supremacy Clause is unclear, although perhaps he offered it as a compromise when it was introduced immediately after the provision for Congressional power to veto state law was defeated. The delegates accepted Martin’s proposal without debate.[20]
After the Committee of Detail reviewed the supremacy provision, John Rutledge moved to add the words “this Constitution” to the beginning of the clause to make it clear that the provision did not only apply to the laws of the United States, but to the Constitution itself. The delegates also accepted this addition without debate.[21]
Another Constitutional provision commonly believed to grant extensive, unlimited authority to the federal government is the Taxing and General Welfare Clauses found in Article I, section 8. In fact, the Supreme Court would later use this provision to grant extensive authority to the federal government that it did not otherwise possess under any other provisions of the Constitution.[22] Yet, this interpretation was not necessarily the intent of the drafters or the original meaning of these clauses.
The Taxing and General Welfare Clauses are found together in Article I, Section 8 of the Constitution. The text states: “The Congress shall have the 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[.]”[23]
When the Committee of Detail added the enumerated powers of Congress to the draft of the Constitution, it only provided for the power to “lay and collected taxes, duties, imposts and excises…,” but it did not include language regarding how the money was to be spent. A committee of eleven members was appointed to consider the issue of how the debts of the new government and state governments were to be paid.
The term “common defense and general welfare” mirrors the original language used in Article VIII of the Articles of Confederation. Under Article VIII of the Articles, the confederation Congress was charged to pay “all charges of war, and all other expences [sic] that shall be occurred for the common for common defence [sic] or general welfare, and allowed by the united states in congress assembled” out of the general treasury. When the committee of eleven addressed how the new federal government would pay government debts, similar language was used. On August 21, 1787, the committee proposed adding the language “[t]he Legislature of the U. S. shall have power to fulfil the engagements which have been entered into by Congress, and to discharge as well the debts of the U. S. as the debts incurred by the several States during the late war, for the common defence and general welfare.”[24]
After several suggested modifications and additions, the committee of eleven proposed the language that was eventually to be included in the final version of the Constitution: “The Legislature shall have power to lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare.” The Convention agreed to this language without debate or controversy. [25]
James Madison would subsequently attempt to explain the meaning of the General Welfare Clause as the drafters understood it. In an 1830 letter, Madison explained that the reason for the additional language pertaining to payment of government debts was to provide Congress with authority to pay the old confederation debts, not necessarily the new debts to be incurred in the future. Seen in this light, the phrase “common defence and general welfare” referred to the authority of the confederation Congress to pay revolutionary war debt as set forth in Article VIII of the Articles of Confederation.[26]
The problem with Madison’s interpretation, over forty years after the fact, was that the General Welfare Clause did not refer to revolutionary war debt in the text. One would think that to be an important qualifier if that was indeed the intent of the clause.
Nevertheless, Madison attempted to convince his peers that the General Welfare Clause was nothing to worry about, stating,
“The obvious conclusion to which we are brought is, that these terms [the General Welfare Clause], copied from the Articles of Confederation, were regarded in the new as in the old instrument, merely as general terms, explained and limited by the subjoined specifications, and therefore requiring no critical attention or studied precaution.”[27]
Despite Madison’s efforts, even Thomas Jefferson was concerned about the General Welfare Clause. Jefferson understood that although the clause was not intended to grant Congress any additional power beyond those powers listed in Article 1, section 8, the opportunity was ripe for abuse. In a letter to Edward Livingston in 1800, Jefferson was critical of a House bill incorporating a copper mine in New Jersey, questioning whether Congress had such authority pursuant to the General Welfare Clause (or Sweeping Clause as it was commonly referred to at the time):
“Congress are authorized to defend the nation. Ships are necessary for defence; copper is necessary for ships; mines necessary for copper; a company necessary to work mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack built?’”.[†][28]
Despite the plain language of the Necessary and Proper clause, the Supremacy clause, and the General Welfare Clause, these provisions were added into the draft without much contention. Whether this lack of controversy during the Convention drafting process tended to show that the delegates had no reason to believe the addition of these clauses were aimed at expanding Congressional authority beyond the powers specifically enumerated, or the delegates in fact wanted to give the federal government leeway to conduct its affairs free from state intervention, we cannot know for sure. Only when it came time to sign the finalized version of the Constitution did some delegates object to the inclusion of these provisions in fear that they would be construed to impermissibly extend the scope of Congressional authority.[29] Given modern Supreme Court precedent, those delegates were right to be concerned.
A Bill of Rights?
As the convention drew to a close, the delegates began to resolve some final issues. One of those issues was whether the new Constitution should include a Bill of Rights. On September 12, 1787, George Mason moved to include a Bill of Rights in the Constitution, which would draw from similar provisions in state constitutions. Mason’s motion came in the context of whether the Constitution should include a right to trial by jury in civil court cases. Although seconded by Elbridge Gerry, the motion was unanimously defeated.[30]
Certainly, many Convention delegates did not believe a Bill of Rights was necessary because the federal government would only operate under enumerated powers and there was no open-ended grant of sovereign authority that would allow for the federal government to abuse the rights of the People.
Yet, despite the attempts of the Convention delegates to limit the authority of the new federal government to specific, enumerated powers, not all of those who were charged with ratifying the Constitution were convinced the Constitution as drafted would protect individual and state sovereignty from federal intrusion. This suspicion is not surprising considering fear of an overbearing central government fueled the revolt against Great Britain in the first place.
What many needed before they would approve of the new Constitution was a specific, written guarantee that the federal government would not exceed the authority specifically delegated to it in the body of the Constitution. The Tenth Amendment, they thought, was supposed to provide this guarantee.
[*] The terms “Federalist” and “Anti-Federalists” will be used as traditionally defined in historical text books and publications with the caveat that these terms have caused much confusion in studying this era because these terms do not accurately reflect the actual political positions of those included under these labels. Many Federalists were actually in favor of a national government, whereas Anti-Federalists generally favored a true federal government (like the Articles of Confederation) as the term was commonly used at the time.
[†] The “House that Jack Built” was a popular nursery rhyme that links “Jack’s house” to a multitude of other events that occur in the house that have nothing to do with the house itself. One event builds upon another to establish a long string of connected events that otherwise would have nothing in common.
[1] John K. Alexander, Samuel Adams: America’s Revolutionary Politician (Lanham, MD, 2002), 203.
[2]See Schweikart and Allen, A Patriot’s History, 106-110.
[3] Edward J. Larson and Michael P. Winship, The Constitutional Convention: A Narrative History from the Notes of James Madison (New York: The Modern Library, 2005), 31.
[4] Ibid, 31-33.
[5] Ibid, 32-33.
[6] Ibid, 33-36.
[7] Ibid, 36.
[8] Ibid, 49-52.
[9] Ibid, 67-71.
[10] James Madison, “Notes on the Debates in the Federal Convention” The Avalon Project, http://avalon.law.yale.edu/subject_menus/debcont.asp
[11] Ibid.
[12][12] Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996), 178.
[13] U.S. Constitution, Article I, § 8.
[14] James Madison, “Notes of the Debates” available at http://avalon.law.yale.edu/18th_century/debates_820.asp. (August 20, 1787).
[15] “The Debates in the Convention of the State of Pennsylvania on the Adoption of the Federal Constitution,” Constitution Society. http://www.constitution.org/rc/rat_pa.htm.
[16] Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004), 153-57.
[17] Ibid.
[18] U.S. Constitution, Article VI, cl, 2.
[19] Robert G. Natelson, The Original Constitution: What it Actually Said and Meant (Los Angeles: Tenth Amendment Center, 2010), 57.
[20] James Madison, “Notes of the Debates” available at http://avalon.law.yale.edu/18th_century/debates_717.asp. (July 17, 1787).
[21] Ibid, available at http://avalon.law.yale.edu/18th_century/debates_823.asp. (August 23, 1787).
[22] See e.g., South Dakota v. Dole, 483 U.S. 203 (1987)(Court upholds the Constitutionality of the National Minimum Drinking Age Act that withheld federal transportation funds from states that did not establish a 21 year-old minimum drinking age law).
[23] U.S. Constitution, Article I, § 8.
[24] James Madison, “Notes of the Debates” available at http://avalon.law.yale.edu/18th_century/debates_821.asp. (August 21, 1787).
[25] James Madison, “Notes of the Debates” available at http://avalon.law.yale.edu/18th_century/debates_904.asp. (September 4, 1787).
[26] James Madison, “James Madison to Andrew Stevenson”, The Founders Constitution. University of Chicago, http://press-pubs.uchicago.edu/founders/documents/a1_8_1s27.html; Letters and Other Writings of James Madison. Published by order of Congress. 4 vols. Philadelphia: J. B. Lippincott & Co., 1865.
[27] Ibid.
[28] P. Ford, ed., The Works of Thomas Jefferson, vol. 9 (New York: Knickerbocker Press, 1905), 132-33. Also available at: http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=757&chapter=87233&layout=html&Itemid=27
[29] Jack N. Rakove, Original Meanings, 180.
[30] Larson and Winship, Constitutional Convention, 149-50.
