Constitutional Paper 2 Module.pdf

not specifically enumerated remained with the States and the People, the actual text of the

available for either of those constitution-drafting groups. Further, the Necessary and Proper

Clause in Article I provided Congress the means to sidestep any of the other limitations placed

upon it in Article I. And, the Supremacy Clause in Article VI provided the Judicial Branch them

means to expand its own powers by its own decisions, as well as to “buy-off” the other branches

by expanding their individual powers by the same judicial logic.

government will encroach on the rights of individual States – and by extension of the People,

both collectively and individually – by assuring his readers

In Federalist No. 44, he similarly counters the argument that the “Necessary and Proper Clause”

was too expansive and prone to abuse by that federal government to expand its own powers

specifically any action that would have required:

Madison rejects all those specific limitations on the Necessary and Proper Clause, especially the

alternative of expressly defining what is necessary and proper, because that would then put

Congress in the position of “violating the Constitution by exercising powers indispensably

necessary and proper, but, at the same time, not EXPRESSLY granted” (Madison Federalist No.

44). While not part of the proposed Constitutional text itself, and therefore not part of any legal

framework of the United States government, the fact the courts often reference the Federalist

Papers to interpret the meaning of the Constitution makes comments such as these extremely

relevant, for it implies the Constitutional Conventioneers specifically considered such

specifications on that clause and rejected them.

of the proposed Constitution represented a strictly enumerated and limited expression of the

proposed federal government’s powers, and that if it were not so specifically granted to the

proposed federal government, it remained with the States and the People. James Wilson, in his

famous “State House Yard Speech” told the Pennsylvania ratifying convention that while in the

State; the presumption was the State has all powers not specifically reserved to the People or

prohibited to the State by the State constitution. But, as Wilson specifically argued, for the

creation, that we should enjoy those privileges, of which we are not divested either by the

and not an agreement of amongst the individual members of the People, as the States are. That is

because

admitted, on all hands, that the general government has no powers but what are expressly

granted by the Constitution, and that all rights not expressed were reserved by the several states”

(South Carolina House of Representatives [1788] 1827). As detailed in Bolten’s video and notes,

many other State leaders, and Constitutional Conventioneers, including Roger Sherman (“The

powers vested in the federal government are only such as respect the common interests of the

Union and are particularly defined, so that each State retains its sovereignty in what respects its

to the United states” (Sherman 1788)), Edmund Randolph (“Every power not given it by this

system is left with the states” (Randolph 1788), Alexander Hamilton (“Whatever is not expressly

given to the federal head, is reserved to the members” (Hamilton [1788] 1962)), and many

States (Boldin 2022).

powers of the federal Congress that are specifically enumerated and limited. Noah Webster at

his State’s ratifying convention admits, “The Constitution defines the powers of Congress; and

every power not expressly delegated to that body, remains in the several state-legislatures”

(Webster [1787] 1888), while Roger Sherman followed up his wide-ranging declarative

statement above with the counter-argumentative admission, “tho’ the general government in

matters within its jurisdiction is paramount to the constitutions and laws of the particular States,

yet all acts of the Congress not warranted by the constitution would be void” (Sherman 1787).

Meanwhile, at the North Carolina Ratifying Convention, Archibald MacLaine gave the most

precise admission of the narrow limitations of the Federal Government’s powers to only those

powers of Congress: “The powers of Congress are expressly defined…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.” But then Archibald appears to believe Congress is the only part of the

proposed government that matters, because he extends those limitations of powers to the other

two branches of the proposed Federal Government as well, stating declaratively, “We retain all

admissions of the members of the Ratifying Conventions bear out, as only the powers of

nor the Judiciary in Articles II and III. Because of that, these other branches of the proposed

years after later. Article I, Section 1 specifically starts the operative text of the Constitution to

say, “All legislative Powers herein granted shall be vested in a Congress of the United States…”

(US Constitution, art. 2, sec. 1), and then Section 8 proceeds to detail each of the powers “The

Congress shall have Power to…” do. Next, Section 9 details each of the things Congress “shall

not” do, such as suspend Habeas Corpus (US Constitution, art. 1, sec. 9, cl. 2), impose a “Bill of

Attainder or ex post facto Law” (Ibid., cl. 3). Finally, Section 10 details each of the things the

States are prohibited from doing. Words matter, and Article I of the Constitution provides, in

significant detail, each of the things Congress can and cannot do, as well as those things the

States are prohibited to do. And to repeat, all of these specifically enumerated and limited

powers follow the general overall enumeration that all the vested legislative powers are first

specifically granted by the People through the Constitution.

as limited or proscribed. Most importantly, they do not start with the same text as Article I’s

definition of Congress’ powers, namely the phrase, “All [Executive/Judicial] Powers herein

limiting language for Executive and Judicial branches, but they did not. Instead, Section 1 of

Article II simply says, “The executive power shall be vested in a President…”. There is no

they do not need to be granted by the participating States or the People. While Sections 2 and 3

such preexistent authority with the specific agency of the “one supreme Court and in such

inferior Courts as the Congress may…ordain and establish” (Ibid., art. 3, sec. 1).

Articles II and III the combined powers of the Necessary and Proper Clause in Article I Section 8

and the Supremacy Clause in Article VI Clause 2, and that both are written so broadly and with

so few defined limitations, and Federal Government officials seeking to advance their own

political objectives or grow their political power are given the very tools to do so, even when

they may be exercised over the objections of the States and the People. Nowhere is this more

apparent than in the Supreme Court’s 1941 United States v. Darby decision where the Justices

exercised their supreme authority to interpret the Constitution (United States v. Darby 1941, 312

US 119), and in doing so throw the very concept of State sovereignty “into the dust heap of

Tallyrand’s rejection of the U.S. Constitution as a “dirty rag [that is no] symbol of Liberty”

(Hamlin and Arliss 1919, 13).1 Specifically, the Supreme Court took advantage of that generic

People as is specifically done with the powers granted Congress in Article I. This assumption of

Madison 1803, 5 USC 173), as well as that, “The judicial power of the United States is extended

to all cases arising under the constitution” (Ibid., 5 USC 178) and the People who framed that

Constitution apparently have no role in the oversight or definition of either.

limitations of powers as must Congress. And federal courts if sympathetic to the desires of

either of the other branches to expand and solidify their authorities can provide such authorities

by judicial fiat, protected by their self-proclaimed final judgement status, with no further appeal

possible other than rebellion by the States or the People. The Founding Fathers built the very

system for the dismantling of the States’ sovereignty and the People’s liberties in their apparent

haste to get out of the hot and humid clime of Philadelphia.

grade for this already late paper, this author used the 1919 version of the play Hamilton, because the antiquity and

the hard-bound printing by a publisher with an ampersand in the name apparently denotes academic rigor and

reliability. Of course, most readers will agree the 2016 Hamilton play’s exchange between Alexander Hamilton and

Eliza Schuyler in the song “Helpless” of how only the “sky is the limit” would be a far more appropriate description