The Plausible Lie

John Taylor

      Since the foundation of the Republic, two schools of interpretation of Federal powers have evolved.  One school follows the rule of the great English jurist Lord Edward Coke: “intentio legislatorum est lex”: the law means what the legislators intended it to mean.  The salient characteristic of the debate over the Constitution was that Founders wanted to limit the extent of Federal power.  Another school of thought came to the front immediately after the meeting of the government under the new Constitution in 1789.  This school sought to expand Federal powers beyond the limits that the sovereigns, the peoples of the states, imposed on it.  Alexander Hamilton was among the first of this school.  In time, others followed: John Marshall, Joseph Story, Abraham Lincoln, Woodrow Wilson, FDR, LBJ, Nixon, Clinton, Bush & Obama.  Each of these stepped beyond the limits imposed by the Constitution, and, each successor used the transgressions of his predecessors as precedence for further transgression.

     The intentions of the Founders, however, are fairly clear to anyone with an honest and open mind.  The drafters of the Federal Constitution felt that the general government was too weak. The Founders (defined as the members of the State Conventions that ratified the Constitution), wished to expand, in a very limited way, the powers of what they called “the general” government.  The Founders, however, were willing to expand Federal powers, but only in a limited way, and the limits themselves were critical in gaining the acceptance and approval of these cautious advocates of ratification.  And, what is more, there was a remarkable unanimity among the advocates of ratification that they wanted to increase Federal powers.

     A brief review of the historical record will show that this is, in fact, the case.  In the Massachusetts Convention, on 15 January 1788, Christopher Gore said, “in the proposed Constitution, the powers of the whole government are limited to certain national objects, and are accurately defined.”[1]  In Massachusetts’ ratification instrument, the Commonwealth declared that “all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.[2] In South Carolina, Charles Cotesworth Pinckney said, “The general government has no powers but what are expressly granted 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.”[3]

     The South Carolina Convention reinforced Pinckney’s point with the following words in the ratification instrument: “no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”[4]  In other words, those powers delegated to the general government were expressly delegated.  In doubtful cases, the burden of proof was on the general government or those who wished the general government to exercise a particular power.  Silence meant the power was not the Federal government’s to use.

     Pennsylvanians had a similar debate and reached a similar conclusion.  In the Pennsylvania Convention, James Wilson, an advocate of ratification, said this in regards to a Bill of Rights: “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. … 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.’”[5]  Again, silence (in the Constitution) means the people retain the right, and the general government does not possess the power in question.

     In North Carolina, advocates of ratification continued the same line of reasoning.  James Iredell, an advocate of ratification, “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.”[6]  North Carolina’s ratification instrument proposed amendments to the Constitution which conveyed the understanding under which the Old North State had ratified.  The first of these stipulated, “that each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.”  The Eighteenth Amendment North Carolina proposed stated, “those clauses which declare that Congress shall not exercise certain powers, be not interpreted in any manner whatsoever to extend the powers of Congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution.”[7]  The Constitution declares the Federal government has certain powers, and then declares that Congress cannot exercise some other power.  Some future constitutional scholar arguing that the latter prohibition means the former delegation was not all-inclusive.  In other words, some might argue that there were in fact some unspecified Federal powers.  Residents of the Old North State were apparently keen to get on record their view that this was not their intention.  All legitimate Federal powers were expressly delegated.  Silence means denial of any questionable Federal power.

     Virginia advocates of ratification expressed the same ideas on the extent of Federal power.  James Madison, on June 6th, 1788 assured his cautious peers that “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.”[8]  John Marshall on June 29th, 1788, echoed the theme: “If [the Congress] 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.”[9]  The next day, Governor Edmund Randolph stated that “every exercise of a power not expressly delegated” by the Constitution would be a “violation.”[10]  As ratification approached, Madison made one more plea that his peers adopt the Constitution.  To those who said that the Federal government would try to exercise powers not expressly delegated and that the people would retain only those rights expressly protected, Madison said that “the delegation alone warrants the exercise of any power.”[11]  Virginia explicitly included this idea in her ratification instrument.  After declaring that every Federal power was the gift of the people of the United States and that Federal powers “may be resumed by them whensoever the same shall be perverted to their injury or oppression,” Virginia’s ratification instrument listed proposed amendments.  The seventeenth of those stated this: “That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.”[12]  In other words, this amendment at future interpretation of the Constitution, making plain that the people of the Commonwealth of Virginia intended that the Federal government would exercise only those powers expressly delegated to it, and that the people would retain all rights not expressly given away, or subjected to Federal power.

     In the New York Convention, on June 28, 1788, Alexander Hamilton (of all people) said this: “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.”[13]  Later, after ratification was secured, Hamilton would change his tune, but when the document was up for debate, he assured his peers that the limited nature of the delegation meant the proposed Union would be safe.  New York’s ratification instrument declares, “That the Powers of Government may be re-assumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”[14]

     Obviously, this is generally the same verbiage used in Virginia’s ratification instrument.  It would appear that there was considerable coordination between the delegates of the several conventions on this question and these solutions.

     Today, there are those who wish the Federal government to exercise some power beyond those enumerated in the Constitution.  These people have staked their position on what one could call “the Plausible Lie.”  Frequently, these people cite the general welfare clause, the necessary & proper clause, interstate commerce clause and various “penumbras” to buttress their arguments for some Federal power beyond those enumerated in the Constitution.

     In the Virginia Convention, Patrick Henry opposed ratification because he felt that the Federal government would exercise powers beyond those enumerated, and would cite the “general welfare” clause as their warrant.  Governor Edmund Randolph, a supporter of ratification, argued that this was strained logic and would not happen.  Henry, and his supporters were perverting the meaning “to alarm our apprehensions,” Randolph said.

     “The whole clause has not been read together. It enables Congress ‘to lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises, shall be uniform throughout the United States.’ The plain and obvious meaning of this is, that no more duties, taxes, imposts, and excises, shall be laid, than are sufficient to pay the debts, and provide for the common defense and general welfare, of the United States.”[15]

George Nicholas, also of the Virginia Convention, was even more specific. [The general welfare clause] only empowered Congress to make such laws as would be necessary to enable them to pay the public debts and provide for the common defence; that this general welfare was united, not to the general power of legislation, but to the particular power of laying and collecting taxes, imposts, and excises, for the purpose of paying the debts and providing for the common defence, – that is, that they could raise as much money as would pay the debts and provide for the common defence, in consequence of this power. The clause which was affectedly called the sweeping clause contained no new grant of power.”

     Those who said that the Obamacare law was constitutional because it was part of Congress’ taxation power are directly contradicting the understanding of the Founders.  Despite this, Chief Justice Roberts of the United States Supreme Court made this argument, engaged in unbelievable mental gymnastics, in his decision to declare Obamacare constitutional.

     Go to a high school civics class today and you will hear that Congress can adopt any law it feels is “necessary and proper.”  This is a broad brush indeed, so broad in fact, that the Founders would be shocked to hear it seriously argued in a classroom.  Advocates of ratification addressed the intended breadth of the necessary and proper clause.  In the Pennsylvania Convention, Thomas M’Kean stated that the necessary and proper clause “gives to Congress no further powers than those already enumerated.”  Further, in the relationship between the Federal and state government, this clause would be no cause for mischief.  “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.”[16]  In other words, the necessary and proper clause and the supremacy clause could not legitimately be used to “supersede” state governments, according to M’Kean.

     The final plank in the nationalist school of constitutional interpretation is the interstate commerce clause.  Georgetown University law professor Randy Barnett has dealt with this in detail.  There are those[17] who interpret the terms “regulate the value of interstate commerce” very broadly, and take them to mean that Congress has the power to regulate any meaningful economic activity.  Others view the terms in more restricted way, meaning to make regular the exchange of merchandise across a state boundary.[18]  To try and find out what the Founders meant by the words Barnett decided to “survey the records of the Constitutional Convention and the ratification debates.”  The results surprised Barnett.  “When I did, I found to my surprise that the term ‘commerce’ was consistently used in the narrow sense and that there is no surviving example of it being used in either source in any broader sense.[19]

     Since the founding of the Republic, over time, centralizers have sought to expand those things over which the Federal government has power.  The steps were small at first.  One great leap forward in Federal power was during the American Civil War, when there was little viable political opposition to Lincoln’s Republican program.  Another came with the Progressives from both major parties, who generally sought to a more activist Federal government, and chafed against the restrictions the Constitution placed on Federal powers.  One of the more remarkable points in this trajectory was the law case of Wickard v. Filburn, in which the Federal government argued that the Federal government has the power to regulate any economic activity that has any effect on commerce.

     This view is a far cry from the carefully limited Federal government envisioned by the Founders.  Those today, who argue that the Federal government can exercise powers over whatever issue it wants, are wrong.  They are violating the faith of the Founders.  Further, those who argue that Federal authority trumps state authority whenever the two collide, so called “Federal pre-emption,” are also incorrect.[20]  Such people are either ignorant of the facts or deliberately being deceptive.  If they are not aware of the record of the intentions of the Founders, they are not good candidates for public office.  If they are aware of that record, but are deliberately deceiving the public, that is an even greater disability.

     The above analysis suggests an authoritative hierarchy of interpretive sources.  First comes the text of the document itself.  Second, would be the proceedings of the state conventions as they debated the meaning of the Constitution.  Third are the records or letters written by participants in the Federal and State Conventions.  Fourth are the documents, speeches and letters of people not participating in those Conventions.

     Those who interpret or comment on interpretations of the Constitution do not rely on such straightforward interpretive schools.  They speak of “penumbras,” twisted logic or will say, “If you hold your mouth like this, you can see that this [obviously unconstitutional] exercise of Federal power is, in fact constitutional.  Further, each misinterpretation of the Constitution gets used as a justification for the next misinterpretation.

     The truth is that the Founders intended that the powers of the Federal government would be carefully limited to those powers enumerated in Article I, Section 8 of the Constitution.  Beyond those, the Federal government cannot legitimately, and must not go.  Whenever you here a politician today advance the idea that the Federal government has the power to enact a law over something beyond the enumerated powers, whether that is Obamacare or a ban on certain types of rifles, he or she is trying to get you to believe The Plausible Lie.  Don’t believe them.

[1] Jonathan Elliot (ed.), Elliot’s Debates, Volume II, pg. 16.

[2] Jonathan Elliot (ed.), Elliot’s Debates, Volume II, pg. 131.

[3] Jonathan Elliot (ed.), Elliot’s Debates, Volume IV, pg. 315-316.

[4] Documentary History of the Constitution, Volume II (1894), pg. 138-140.

[5] Jonathan Elliot (ed.), Elliot’s Debates, Volume II, pg. 437.

[6] Jonathan Elliot (ed.), Elliot’s Debates, Volume IV, pp. 219-220.

[7] Documentary History of the Constitution, Vol. II (1894), pg. 266-275, 276, 290

[8] Jonathan Elliot (ed.), Elliot’s Debates, Volume III, pg. 95.

[9] Jonathan Elliot (ed.), Elliot’s Debates, Volume III, pg. 553.

[10] Jonathan Elliot (ed.), Elliot’s Debates, Volume III, pg. 576.

[11] Jonathan Elliot (ed.), Elliot’s Debates, Volume III, pg. 620.

[12] Jonathan Elliot (ed.), Elliot’s Debates, Volume III, pg. 661.

[13] Jonathan Elliot, Elliot’s Debates, Volume II, (Washington: Jonathan Elliot, 1836), pg. 362-363.  Emphasis added.

[14] Jonathan Elliot, Elliot’s Debates, Volume III, (NY: Burt Franklin, 1888), pg. 661.

[15] Jonathan Elliot, Elliot’s Debates, Volume III, (NY: Burt Franklin, 1888), pg. 207.

[16] Jonathan Elliot, Elliot’s Debates, Volume II, (NY: Burt Franklin, 1888), pg. 537-538.

[17] For example, Professors Grant Nelson and Robert Pushaw, Jr.

[18] For example, Albert Abel, Richard Epstein, and Raoul Berger, and Justice Clarence Thomas.

[19] Randy Barnett, “The Original Meaning of the Commerce Clause,” The University of Chicago Law Review, Vol. 68, No. 1. (Winter, 2001), pg. 101-147.

[20] The Justice Department has argued in favor of “pre-emption” over the immigration issue.  The Federal Department of Justice says that the Federal government has exclusive power over regulating immigration and state laws that contradict their view are null and void.