An Old Whig II
October 17, 1787
Mr. PRINTER, Since writing my last, in which I stated some doubts respecting the new federal constitution and expressed a wish that those doubts might be removed, I have met with the printed speech of James Wilson, Esquire.—This speech I find was made for the express purpose of removing objections from the minds of those who doubted, like myself, and wished to be satisfied; and except one or two hard names that have escaped the speaker, it bears the marks of more candor than is to be found in most of the production[s], which have been ushered into the world in support of the same measure. This speech also deserves the more attention as coming from a man of abilities fresh from “the impressions of four months constant attention to the subject.” The subject however is one of those which it imports us all very carefully to examine. I have therefore paid very considerable attention to his arguments, at the same time that I have examined with some care the foundation upon which they are built. Still I remain unsatisfied; and the more unsatisfied, as I have been disappointed in my hope of conviction, from a quarter, from which so much was to be expected—You will give me leave therefore to state shortly in your paper, some of those difficulties which still remain with me.
The first principle which the gentleman endeavours to establish in his speech is a very important one, if true; and lays a sure foundation to reason upon, in answer to the objection which is made to the new constitution, from the want of a bill of rights. The principle is this: that “in delegating federal powers, the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union,” “that every thing which is not given is reserved.” If this be a just representation of the matter, the authority of the several states will be sufficient to protect our liberties from the encroachments of Congress, without any continental bill of rights; unless the powers which are expressly given to Congress are too large.
Without examining particularly at present, whether the powers expressly given to Congress are too large or too small, I shall beg leave to consider, whether the author of this speech is sufficiently accurate in his statement of the proposition above referred to.—To strip it of unnecessary words, the position may be reduced to this short sentence, “that every thing which is not expressly given to Congress is reserved;” or in other words “that Congress cannot exercise any power or authority that is not in express words delegated to them.”—This certainly is the case under the first articles of confederation which hitherto have been the rule and standard of the powers of Congress; for in the second of those articles “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.” It was the misfortune of these articles of confederation that they did not by express words give to Congress power sufficient for the purposes of the union; for Congress could not go beyond those powers so expressly given. The position of the speech, therefore is strictly true if applied to the first articles of confederation; “that every thing which is not expressly given is reserved.” We are not however to suppose that the speaker meant insidiously to argue from an article in the old confederation in favor of the new constitution, unless the same thing was also in the new constitution. Let us then fairly examine whether in the proposed new constitution there be any thing from which the gentleman can be justified in his opinion, “that every thing which is not expressly given to Congress is reserved.”
In the first place then it is most certain that we find no such clause or article in the new constitution. There is nothing in the new constitution which either in form or substance bears the least resemblance to the second article of the confederation. It might nevertheless be a fair argument to insist upon from the nature of delegated powers, that no more power is given in such cases than is expressly given. Whether or not this ground of argument would be such as we might safely rest our liberties upon; or whether it would be more prudent to stipulate expressly as is done in the present confederation for the reservation of all such powers as are not expressly given, it is hardly necessary to determine at present. It strikes me that by the proposed constitution, so far from the reservation of all powers that are not expressly given, the future Congress will be fully authorised to assume all such powers as they in their wisdom or wickedness, according as the one or the other may happen to prevail, shall from time to time think proper to assume.
Let us weigh this matter carefully; for it is certainly of the utmost importance, and, if I am right in my opinion, the new constitution vests Congress with such unlimited powers as ought never to be entrusted to any men or body of men. It is justly observed that the possession of sovereign power is a temptation too great for human nature to resist; and although we have read in history of one or two illustrious characters who have refused to enslave their country when it was in their power;—although we have seen one illustrious character in our own times resisting the possession of power when set in competition with his duty to his country, yet these instances are so very rare, that it would be worse than madness to trust to the chance of their being often repeated.
To proceed then with the enquiry, whether the future Congress will be restricted to those powers which are expressly given to them. I would observe that in the opinion of Montesquieu, and of most other writers, ancient as well as modern, the legislature is the sovereign power. It is certainly the most important. If any one doubts this, let him reflect upon the frequent inroads which the legislature of Pennsylvania has made upon the other branches of government: Inroads which it is much to be feared, if the powers of government in Pennsylvania should ever in time to come be an object worth contending about, no council of censors will ever be able to check or restrain. Let us then see what are the powers expressly given to the legislature of Congress, and what checks are interposed in the way of the continental legislature’s assuming what further power they shall think proper to assume.
To this end let us look to the first article of the proposed new constitution, which treats of the legislative powers of Congress; and to the eighth section which pretends to define those powers. We find here that the congress, in its legislative capacity, shall have the power “to lay and collect taxes, duties and excises; to borrow money; to regulate commerce; to fix the rule for naturalization and the laws of bankruptcy; to coin money; to punish counterfeiters; establish post offices and post roads; to secure copy rights to authors; to constitute tribunals; to define and punish piracies; to declare war; to raise and support armies; to provide and support a navy; to make rules for the army and navy; to call forth the militia; to organize, arm and discipline the militia; to exercise absolute power over a district of ten miles square, independant of all the state legislatures, and to be alike absolute over all forts, magazines, arsenals, dockyards and other needful buildings thereunto belonging.” This is a short abstract of the powers expressly given to Congress. These powers are very extensive, but I shall not stay at present to inquire whether these express powers were necessary to be given to Congress? whether they are too great or too small? My object is to consider that undefined, unbounded and immense power which is comprised in the following clause;—”And, 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 offices thereof.” Under such a clause as this can any thing be said to be reserved and kept back from Congress? Can it be said that the Congress have no power but what is expressed? “To make all laws which shall be necessary and proper” is in other words to make all such laws which the Congress shall think necessary and proper,—for who shall judge for the legislature what is necessary and proper?—Who shall set themselves above the sovereign?—What inferior legislature shall set itself above the supreme legislature?—To me it appears that no other power on earth can dictate to them or controul them, unless by force; and force either internal or external is one of those calamities which every good man would wish his country at all times to be delivered from.—This generation in America have seen enough of war and its usual concomitants to prevent all of us from wishing to see any more of it;—all except those who make a trade of war. But to the question;—without force what can restrain the Congress from making such laws as they please? What limits are there to their authority?—I fear none at all; for surely it cannot justly be said that they have no power but what is expressly given to them, whereby the very terms of their creation they are vested with the powers of making laws in all cases necessary and proper; when from the nature of their power they must necessarily be the judges, what laws are necessary and proper. The British act of Parliament, declaring the power of Parliament to make laws to bind America in all cases whatsoever, was not more extensive; for it is as true as a maxim, that even the British Parliament neither could nor would pass any law in any case in which they did not either deem it necessary and proper to make such law or pretend to deem it so. And in such cases it is not of a farthing consequence whether they really are of opinion that the law is necessary and proper, or only pretend to think so; for who can overrule their pretensions?-No one, unless we had a bill of rights to which we might appeal, and under which we might contend against any assumption of undue power and appeal to the judicial branch of the government to protect us by their judgements. This reasoning I fear Mr. Printer is but too just; and yet, if any man should doubt the truth of it; let me ask him one other question, what is the meaning of the latter part of the clause which vests the Congress with the authority of making all laws which shall be necessary and proper for carrying into execution ALL OTHER POWERS;-besides the foregoing powers vested, &c. &c. Was it thought that the foregoing powers might perhaps admit of some restraint in their construction as to what was necessary and proper to carry them into execution? Or was it deemed right to add still further that they should not be restrained to the powers already named?—besides the powers already mentioned, other powers may be assumed hereafter as contained by implication in this constitution. The Congress shall judge of what is necessary and proper in all these cases and in all other cases;—in short in all cases whatsoever.
Where then is the restraint? How are Congress bound down to the
powers expressly given? what is reserved or can be reserved?
Yet even this is not all—as if it were determined that no doubt should remain, by the sixth article of the constitution it is declared 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, and the judges in every state shall be bound thereby, any thing in the constitutions or laws of any state to the contrary notwithstanding.” The Congress are therefore vested with the supreme legislative power, without controul. In giving such immense, such unlimited powers, was there no necessity of a bill of rights to secure to the people their liberties? Is it not evident that we are left wholly dependent on the wisdom and virtue of the men who shall from time to time be the members of Congress? and who shall be able to say seven years hence, the members of Congress will be wise and good men, or of the contrary character.
As I mean to pursue this subject in some other letters, I shall conclude for the present; and am, Yours, AN OLD WHIG.