Nature of the Constitution

[JohnTaylor]

Now would seem to be the time to discuss the extent of powers delegated to the general government under the Constitution. A few of the posters on this board (and elsewhere) seem to mistake the original nature of the Constitution. I hope to set the record straight in the next few posts in this thread.

The need of the Republic that caused the Philadelphia Convention to be called together was to increase the powers of the general Government. Under the articles of Confederation (AoC), the general government was too weak to force the States to comply with their obligations, especially in providing funds to the general government. Hence the Philadelphia Convention was called together the reform the AoC to give certain additional powers to the general government. But expanding Federal powers by a certain amount does not mean an unlimited increase in Federal powers.

In Philadelphia, there was great fear on the part of some of the delegates that they had exceeded their mandate, and some delegates left over the issue. Since the resulting Constitution would be no more than a proposal to the people of the several States, the was no danger in making the proposal. If the proposed Constitution went too far, the people would reject it. And without the approval of the people of the Sates, the new Constitution would be a dead letter.

Later, there was great fear on the part of the delegates to the several State conventions about the extent of the powers to be given to the general government. Anti-federalists in several States were particularly concerned by the lack of the Bill of Rights. To assuage the fears of the fearful, Federalists assured the delegates that the Federal Government could only exercise those powers specifically delegated to it.
In the posts that follow, my words are in blue, the original materials are in black, so no one confuses my words for those of the Founders. Emphasis within the quotes is mine, not in the original.
Respectfully,
John Taylor

[JohnTaylor]

In a public speech in Philadelphia on October 6th, 1787, James Wilson, a former delegate to the Philadelphia Convention said this about the powers of the General Government: “It will be proper, however, before I enter into the refutation of the charges that are alleged, to mark the leading descrimation (sic) between the state constitutions, and the constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating fœderal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a fœderal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence.” (Bailyn, Debate on the Constitution, vol. 1)

In the Pennsylvania Convention, on October 28, 1787, Mr. James Wilson declared “…But in a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent. In all societies, there are many powers and rights which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete. On the other hand, an imperfect enumeration of the powers of government reserves all implied power to the people; and by that means the constitution becomes incomplete. But of the two, it is much safer to run the risk on the side of the constitution; for an omission in the enumeration of the powers of government is neither so dangerous nor important as an omission in the enumeration of the rights of the people. … But, in this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with. When, therefore, they possess, as I have already mentioned, the fee-simple of authority, why should they have recourse to the minute and subordinate remedies, which can be necessary only to those who pass the fee, and reserve only a rent-charge?
To every suggestion concerning a bill of rights, the citizens of the United States may always say, We reserve the right to do what we please.
I concur most sincerely with the honorable gentleman who was last up in one sentiment – that if our liberties will be insecure under this system of government, it will become our duty not to adopt, but to reject it. On the contrary, if it will secure the liberties of the citizens of America, – if it will not only secure their liberties, but procure them happiness, – it becomes our duty, on the other hand, to assent to and ratify it. (Elliott’s Debates, Volume II, pg. 436-438)

Mr. Wilson “…A good deal has already been said concerning a bill of rights. I have stated, according to the best of my recollection, all that passed in Convention relating to that business. Since that time, I have spoken with a gentleman, who has not only his memory, but full notes that he had taken in that body, and he assures me that, upon this subject no direct motion was ever made at all; and certainly, before we heard this so violently supported out of doors, some pains ought to have been taken to have tried its fate within; but the truth is, a bill of rights would, as I have mentioned already, have been not only unnecessary, but improper. In some governments, it may come within the gentleman's idea, when he says it can do no harm; but even in these governments, you find bills of rights do not uniformly obtain; and do those states complain who have them not? Is it a maxim in forming governments, that not only all the powers which are given, but also that all those which are reserved, should be enumerated? I apprehend that the powers given and reserved form the whole rights of the people, as men and as citizens. I consider that there are very few who understand the whole of these rights. All the political writers, from Grotius and Puffendorf down to Vattel, have treated on this subject; but in no one of those books, nor in the aggregate of them all, can you find a complete enumeration of rights appertaining to the people as men and as citizens. (Elliott’s Debates, Volume II, pg. 454-455)

On December 11, 1787,Mr. M'Kean said: “The framers of this Constitution wisely divided the legislative department between the two houses, subject to the qualified negative of the President of the United States, though this government embraces only enumerated powers. In a single state, annual elections may be proper; the more so, when the legislative powers extend to all cases; but in such an extent of country as the United States, and when the powers are circumscribed, there is not that necessity, nor are the objects of the general government of that nature as to be acquired immediately by every capacity. (Elliott’s Debates, Volume II, pg. 533)

The limitation of Federal powers was a key component of the assertion that the new system, while expanding Federal powers, was still safe.

“Another objection was taken from these words of the Constitution – "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." And, in declaring "that 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," this has at last been conceded, that, though it is explicit enough, yet it gives to Congress no further powers than those already enumerated. Those that first said it gave to Congress the power of superseding the state governments, cannot persist in it; for no person can, with a tolerable face, read the clauses over, and infer that such may be the consequence.” (Elliott’s Debates, Volume II, pg. 538-539)

Mr. M'Kean (to the objection "That there is no bill or declaration of rights in this Constitution.") declared this: “To this I answer, Such a thing has not been deemed essential to liberty, excepting in Great Britain, where there is a king and a House of Lords, quite distinct, with respect to power and interest, from the rest of the people; or, in Poland, the pacta conventus, which the king signs before he is crowned; and in six states of the American United States. Again, because it is unnecessary; for the powers of Congress, being derived from the people in the mode pointed out by this Constitution, and being therein enumerated and positively granted, can be no other than what this positive grant conveys. (Locke on Civil Government, vol. ii, b. 2, chap. 2, sect. 140, and in the 13th chap., sect, 152.) With respect to executive officers, they have no manner of authority, any of them, beyond what is by positive grant and commission delegated to them.
(Elliott’s Debates, Volume II, pg. 540)

Thus, the advocates of the Federal Convention were assuring the anti-Federalists and the fearful, that the Constitution was safe because the Federal Government had no powers but those specifically enumerated and positively granted.
Respectfully,
John Taylor

[JohnTaylor]

In the Massachusetts Convention on January 17,Mr. Turner said, “Relinquishing a hair's breadth in a constitution, is a great deal; for by small degrees has liberty, in all nations, been wrested from the hands of the people. I know great powers are necessary to be given to Congress, but I wish they may be well guarded.”

On January, 23, 1788,Col. Varnum, in answer to an inquiry, why a bill of rights was not annexed to this Constitution, said, that, “by the constitution of Massachusetts, the legislature have a right to make all laws not repugnant to the Constitution. Now, said he, if there is such a clause in the Constitution under consideration, then there would be a necessity for a bill of rights. In the section under debate, Congress have an expressed power to levy taxes, &c., and to pass laws to carry their requisitions into execution: this, he said, was express, and required no bill of rights. After stating the difference between delegated power and the grant of all power, except in certain cases, the colonel proceeded to controvert the idea that this Constitution went to a consolidation of the Union. He said it was only a consolidation of strength, and that it was apparent Congress had no right to alter the internal relations of a state.

John Adams, said on February 1, 1788, “…Your excellency's first proposition is, "that it be explicitly declared, that all powers not expressly delegated to Congress are reserved to the several states, to be by them exercised." This appears, to my mind, to be a summary of a bill of rights, which gentlemen are anxious to obtain. It removes a doubt which many have entertained respecting the matter, and gives assurance that, if any law made by the federal government shall be extended beyond the power granted by the proposed Constitution, and inconsistent with the constitution of this state, it will be an error, and adjudged by the courts of law to be void. It is consonant with the second article in the present Confederation, that 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. I have long considered the watchfulness of the people over the conduct of their rulers the strongest guard against the encroachments of power; and I hope the people of this country will always be thus watchful.” (Elliott’s Debates, Volume II.)

Adams clearly favored the courts as the appropriate watchdogs of the people’s liberties and protector against Federal encroachment.

On February 5th, in an editorial by James Winthrop, writing under the nom de plume Agrippa, suggested that the Constitution be “accepted only upon the following conditions: … “No such powers shall be exercised by Congress or the president but such as are expressly given by this constitute and not excepted against by declaration.” (Bailyn, The Debate on the Constitution, vol. 2, pg. 159).

In the end, on February 6th, 1788, Massachusetts appended to their declaration ratifying the Constitution several recommended amendments. The first of which said, “That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.” (Elliott’s Debates, Volume II, pg. 131.)
Respectfully,
John Taylor

[JohnTaylor]

On January 18, 1788, Charkles Cotesworth Pinckney said “With regard to the liberty of the press, the discussion of that matter was not forgotten by the members of the Convention. It was fully debated, and the impropriety of saying any thing about it in the Constitution clearly evinced. The general government has no powers but what are expressly granted to it; it therefore has no power to take away the liberty of the press. That invaluable blessing, which deserves all the encomiums the gentleman has justly bestowed upon its is secured by all our state constitutions; and to have mentioned it in our general Constitution would perhaps furnish an argument, hereafter, that the general government had a right to exercise powers not expressly delegated to it. For the same reason, we had no bill of rights inserted in our Constitution; for, as we might perhaps have omitted the enumeration of some of our rights, it might hereafter be said we had delegated to the general government a power to take away such of our rights as we had not enumerated: but by delegating express powers, we certainly reserve to ourselves every power and right not mentioned in the Constitution. Another reason weighed particularly, with the members from this state, against the insertion of a bill of rights. Such bills generally begin with declaring that all men are by nature born free. Now, we should make that declaration with a very bad grace, when a large part of our property consists in men who are actually born slaves. As to the clause guarantying to each state a republican form of government being inserted near the end of the Constitution, the general observed that it was as binding as if it had been inserted in the first article. The Constitution takes its effect from the ratification, and every part of it is to be ratified at the same time, and not one clause before the other; but he thought there was a peculiar propriety in inserting it where it was, as it was necessary to form the government before that government could guaranty any thing." (Elliott’s Debates, Volume IV, pg. 315-316.)
Respectfully,
John Taylor

[JohnTaylor]

In the North Carolina Convention, on July 28th, 1788,Mr. Maclaine declared “… The powers of Congress are limited and enumerated. We say we have given them those powers, but we do not say we have given them more. We retain all those rights which we have not given away to the general government. The gentleman is a professional man. If a gentleman had made his last will and testament, and devised or bequeathed to a particular person the sixth part of his property, or any particular specific legacy, could it be said that that person should have the whole estate? If they can assume powers not enumerated, there was no occasion for enumerating any powers. The gentleman is learned. Without recurring to his learning, he may only appeal to his common sense; it will inform him that, if we had all power before, and give away but a part, we still retain the rest. It is as plain a thing as possibly can be, that Congress can have no power but what we expressly give them. There is an express clause which, however disingenuously it has been perverted from its true meaning, clearly demonstrates that they are confined to those powers which are given them. This clause enables them 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 any department or officers thereof." This clause specifies that they shall make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws. I hope this will satisfy gentlemen. (Elliot’s Debates, Vol. IV, pg. 140-1.)

Gov. Johnston said, “Mr. Chairman, the learned member from Anson says that the federal courts have exclusive jurisdiction of all cases in law and equity arising under the Constitution and laws of the United States. The opinion which to have always entertained is, that they will, in these cases, as well as in several others, have concurrent jurisdiction with the state courts, and not exclusive jurisdiction. I see nothing in this Constitution which hinders a man from bringing suit wherever he thinks he can have justice done him. The jurisdiction of these courts is established for some purposes with which the state courts have nothing to do, and the Constitution takes no power from the state courts which they now have. They will have the same business which they have now, and if so, they will have enough to employ their time. We know that the gentlemen who preside in our superior courts have more business than they can determine. Their complicated jurisdiction, and the great extent of country, occasions them a vast deal of business. The addition of the business of the United States would be no manner of advantage to them. It is obvious to every one that there ought to be one Supreme Court for national purposes. But the gentleman says that a bill of rights was necessary. It appears to me, sir, that it would have been the highest absurdity to undertake to define what rights the people of the United States were entitled to; for that would be as much as to say they were entitled to nothing else. A bill of rights may be necessary in a monarchical government, whose powers are undefined. Were we in the situation of a monarchical country? No, sir. Every right could not be enumerated, and the omitted rights would be sacrificed, if security arose from an enumeration. The Congress cannot assume any other powers than those expressly given them, without a palpable violation of the Constitution. Such objections as this, I hope, will have no effect on the minds of any members in this house. When gentlemen object, generally, that it tends to consolidate the states and destroy their state judiciaries, they ought to be explicit, and explain their meaning. They make use of contradictory arguments. The Senate represents the states, and can alone prevent this dreaded consolidation; yet the powers of the Senate are objected to. The rights of the people, in my opinion, cannot be affected by the federal courts. I do not know how inferior courts will be regulated. Some suppose the state courts will have this business. Others have imagined that the continent would be divided into a number of districts, where courts would be held so as to suit the convenience of the people. Whether this or some other mode will be appointed by Congress, I know not; but this I am sure of, that the state judiciaries are not divested of their present judicial cognizance, and that we have every security that our ease and convenience will be consulted. Unless Congress had this power, their laws could not be carried into execution. (Elliot’s Debates, Vol. IV, pg 141-142)

The leading advocate of ratification in the North Carolina Convention, Mr. James Iredell said, “… With regard to a bill of rights, this is a notion originating in England, where no written constitution is to be found, and the authority of their government is derived from the most remote antiquity. Magna Charta itself is no constitution, but a solemn instrument ascertaining certain rights of individuals, by the legislature for the time being; and every article of which the legislature may at any time alter. This, and a bill of rights also, the invention of later times, were occasioned by great usurpations of the crown, contrary, as was conceived, to the principles of their government, about which there was a variety of opinions. But neither that instrument, nor any other instrument, ever attempted to abridge the authority of Parliament, which is supposed to be without any limitation whatever. Had their constitution been fixed and certain, a bill of rights would have been useless, for the constitution would have shown plainly the extent of that authority which they were disputing about. Of what use, therefore, can a bill of rights be in this Constitution, where the people expressly declare how much power they do give, and consequently retain all they do not? It is a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given. Did any man ever hear, before, that at the end of a power of attorney it was said that the attorney should not exercise more power than was there given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell? or could he, without absurdity, say, "'Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other." A bill of rights, as I conceive, would not only be incongruous, but dangerous. No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at an end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, "We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights, passed at that time, showed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain. This is not one of them." Thus a bill of rights might operate as a snare rather than a protection. If we had formed a general legislature, with undefined powers, a bill of rights would not only have been proper, but necessary; and it would have then operated as an exception to the legislative authority in such particulars. It has this effect in respect to some of the American constitutions, where the powers of legislation are general. But where they are powers of a particular nature, and expressly defined, as in the case of the Constitution before us, I think, for the reasons I have given, a bill of rights is not only unnecessary, but would be absurd and dangerous.” (Elliot’s Debates, vol. IV, pg. 149-150)


On July 29th 1788, Mr. Iredell continued “…If the Congress should claim any power not given them, it would be as bare a usurpation as making a king in America. If this Constitution be adopted, it must be presumed the instrument will be in the hands of every man in America, to see whether authority be usurped; and any person by inspecting it may see if the power claimed be enumerated. If it be not, he will know it to be a usurpation.” (Elliot’s Debates, vol. IV, pg. 172)

On July 30th 1788, Mr. Iredell concluded: “The powers of the government are particularly enumerated and defined: they can claim no others but such as are so enumerated. In my opinion, they are excluded as much from the exercise of any other authority as they could be by the strongest negative clause that could be framed.” (Elliot’s Debates, vol. IV, pp. 219-220)

In the debates in the North Carolina Convention, we see the origins of the IX and X Amendments quite clearly. They were included in order to capture the idea that the Federal Government could not exercise any but the delegated and enumerated powers.
Respectfully,
John Taylor

[JohnTaylor]

On June 4th, 1788, James Madison said “… as to our security against [the Federal legislators], I conceive, sir, that the general limitation of their powers, and the general watchfulness of the states, will be a sufficient guard.” (Elliott’s Debates, vol. III)

On June 5th, 1788. Edmund Pendleton, in answering the criticism that the Philadelphia Convention had exceeded its mandate (which was only to modify the AoC, not draft a whole new Constitution), said: “This power of proposing was very broad; it extended to remove all defects in government: the members of that Convention, who were to consider all the defects in our general government, were not confined to any particular plan. Were they deceived? This is the proper question here. Suppose the paper on your table dropped from one of the planets; the people found it, and sent us here to consider whether it was proper for their adoption; must we not obey them?” (Elliott’s Debates, vol. III)

Thus, if the Philadelphia Convention exceeded their mandate, it was no threat t people’s liberties, since the people had the power to adopt the new constitution or reject it. It was a suggestion only, with no force of its own.

“We, the people, possessing all power, form a government, such as we think will secure happiness: and suppose, in adopting this plan, we should be mistaken in the end; where is the cause of alarm on that quarter? In the same plan we point out an easy and quiet method of reforming what may be found amiss. No, but, say gentlemen, we have put the introduction of that method in the hands of our servants [the officers of the Federal government], who will interrupt it from motives of self-interest. What then? We will resist, did my friend say? conveying an idea of force. Who shall dare to resist the people? No, we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse; and punish those servants who have perverted powers, designed for our happiness, to their own emolument.” (Elliott’s Debates, vol. III)

Since the Philadelphia Convention had recommendatory power only, and the Constitution was activated only because the people of the States had delegated powers to the Federal government through the Constitution through the agency of the State Conventions, the only way that delegated powers could be recalled was through the agency of State Conventions.

On June 6th, 1788, Gov. Edmund Randolph declared: “I ask myself a variety of questions applicable to the adopting states [the eight that had adopted by the 6th of June], and I conclude, Will they repent of what they have done? Will they acknowledge themselves in an error? Or will they recede, to gratify Virginia? My prediction is, that they will not. Shall we stand by ourselves, and be severed from the Union, if amendments [i.e. the Bill of Rights] cannot be had? I have every reason for determining within myself that our rejection must dissolve the Union; and that that dissolution will destroy our political happiness.” (Elliott’s Debates, vol. III)

Failure to ratify (because of a lack of a Bill of Rights) and thus leave the Union, was not inconceivable, just bad policy.

On June 6th, 1788, James Madison declared: “In some respects it is a government of a federal nature; in others, it is of a consolidated nature. Even if we attend to the manner in which the Constitution is investigated, ratified, and made the act of the people of America, I can say, notwithstanding what the honorable gentleman has alleged, that this government is not completely consolidated, nor is it entirely federal. Who are parties to it? The people – but not the people as composing one great body; but the people as composing thirteen sovereignties. Were it, as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment; and, as a majority have adopted it already, the remaining states would be bound by the act of the majority, even if they unanimously reprobated it. Were it such a government as is suggested, it would be now binding on the people of this state, without having had the privilege of deliberating upon it. But, sir, no state is bound by it, as it is, without its own consent.” (Elliot’s Debates, vol. III)

“If Virginia was separated from all the states, her power and authority would extend to all cases: in like manner, were all powers vested in the general government, it would be a consolidated government; but the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.” (Elliot’s Debates, vol. III)

On June 20th, 1788, Mr. John Marshall said: “…Has the government of the United States power to make laws on every subject? … Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction.” (Elliott’s Debates, vol. III)

Marshall, like Adams, the future Federalists, saw the courts as the place to prevent Federal encroachment.

On June 21st, 1788, Gov. Edmund Randolph: “If I did believe, with the honorable gentleman, that all power not expressly retained was given up by the people, I would detest this government. But I never thought so, nor do I now. If, in the ratification, we put words to this purpose, ‘and that all authority not given is retained by the people, and may be resumed when perverted to their oppression; and that no right can be cancelled, abridged, or restrained, by the Congress, or any officer of the United States,’ – I say, if we do this, I conceive that, as this style of ratification would manifest the principles on which Virginia adopted it, we should be at liberty to consider as a violation of the Constitution every exercise of a power not expressly delegated therein. I see no objection to this. It is demonstrably clear to me that rights not given are retained, and that liberty of religion, and other rights, are secure. I hope this committee will not reject it for faults which can be corrected, when they see the consequent confusion that will follow.” (Elliott’s Debates, vol. III)

On June 24th, 1788, Mr. James Madison: “The observations made by a gentleman lately up, on that subject, correspond precisely with my opinion. That resolution declares that the powers granted by the proposed Constitution are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby remains with the people, and at their will. It adds, likewise, that no right, of any denomination, can be cancelled, abridged, restrained, or modified, by the general government, or any of its officers, except in those instances in which power is given by the Constitution for these purposes. There cannot be a more positive and unequivocal declaration of the principle of the adoption – that every thing not granted is reserved. This is obviously and self-evidently the case, without the declaration. Can the general government exercise any power not delegated? If an enumeration be made of our rights, will it not be implied that every thing omitted is given to the general government? Has not the honorable gentleman himself admitted that an imperfect enumeration is dangerous? Does the Constitution say that they shall not alter the law of descents, or do those things which would subvert the whole system of the state laws? If it did, what was not excepted would be granted. Does it follow, from the omission of such restrictions that they can exercise powers not delegated? The reverse of the proposition holds. The delegation alone warrants the exercise of any power.” (Elliott’s Debates, vol. III)
Respectfully,
John Taylor

[JohnTaylor]

On June 20, 1788, The Hon. Mr. Lansing said, “It has been observed, that, as the people must, of necessity, delegate essential powers either to the individual or general sovereignties, it is perfectly immaterial where they are lodged; but, as the state governments will always possess a better representation of the feelings and interests of the people at large, it is obvious that those powers can be deposited with much greater safety with the state than the general government.” Elliott’s Debates, vol. II, pg. 218.

June 28, 1788. — The Hon. Mr. HAMILTON said “The states have an undoubted right to lay taxes in all cases in which they are not prohibited, is a position founded on the obvious and important principle in confederated governments, that whatever is not expressly given to the federal head is reserved to the members. The truth of this principle must strike every intelligent mind. In the first formation of government, by the association of individuals, every power of the community is delegated, because the government is to extend to every possible object; nothing is reserved but the unalienable rights of mankind: but, when a number of these societies unite for certain purposes, the rule is different, and from the plainest reason — they have already delegated their sovereignty and their powers to their several governments; and these cannot be recalled, and given to another, without an express act.” (Elliott’s Debates, vol. II, pg. 362-363.)
Respectfully,
John Taylor

[JohnTaylor]

Two things from this stick out in my mind.
One is that that the safety of the proposed system depended on the limited enumeration of the powers the Federal government. And, in this regard, the advocates of ratification were very clear that, in viewing the US Constitution and the State Constitutions, they were very different in their nature. In the State Constitutions, the governments could do anything they weren’t specifically forbidden to do. In the Federal Constitution, the reverse applied, the Federal government could do only what it was specifically authorized to do. There were no implied Federal powers. Federal powers could not be enlarged by construction, and the “general welfare” and “necessary and proper” clauses only meant that the Congress could pass legislation to enact enumerated powers by law.
The second is the remarkable unanimity among the Federalists of the various States on these points.
Respectfully,
John Taylor

[unionblue]

John Taylor,

Be sure to include ALL of the debate about the nature of the Constitution, including the debate over if a state could secede or not.

I am too tired to retype the entire set of posts I have done at another thread, but I will post the links to them here.

http://civilwartalk.com/forums/showp...&postcount+163

http://civilwartalk.com/forums/showp...&postcount=165

While I admire your dedication to post volumes on the debate on the Constitution, it is all too easy to concentrate on those parts of the debate that support your contention that states somehow reserved the right to leave unilateraly when it was opposed, discussed and debated with the conclusion that it was NOT a right.

Sincerely,
Unionblue

[JohnTaylor]

Neil, I am not speaking of secession, just enumerated powers. There was no advocate of ratification I am aware of that advocated ratification because he felt that the Federal government would be able to exercise unenumerated powers. Opponents opposed the Constitution because they felt that the Federal government might be able to exercise undelegated powers. The idea of firm limits on Federal powers was a key ingredient in the peoples' decisions to ratify.
Respectfully,
John Taylor