In response to: The Constitution's Structural Limitations On Power Should Be the Focus of the Bill of Rights
The revolution of 1787-1791 overthrew a constitution that strictly limited the federal government in favor of one with general welfare and necessary and proper clauses that allowed the federal government to absorb state powers over time. It also tossed out the dogma of separation of powers in favor of a more sophisticated balance of powers. When the states proposed to put that dogma back in the Constitution by Amendment and James Madison convinced the House of Representatives to include it in its Amendment package, the Senate, with its extensive executive powers, disagreed to it.1
Almost all Federalists claimed the Constitution was one of limited federal power. Even Alexander Hamilton said so in his famous 1791 defense of implied powers. But Federalist definitions of “limited” varied widely. Most southern Federalists, including James Madison, had a rather strict definition of the word. Middle state and northern Federalists defined the word more liberally. Some signers even left the Federal Convention convinced that Congress had the constitutional power to abolish slavery. With this in mind, Benjamin Franklin called on it in 1790 “to devise means for removing this Inconsistency from the Character of the American People.”2
George Washington, no southerner in his economic and political views, had perhaps the most expansive view. One sees it in his magisterial 1789 undelivered inaugural address and his 1790 state of the union message where he called on Congress to pass legislation for highway improvement and to encourage agriculture, commerce, manufacturing, and education. As president he used the treaty power to place the federal government on the side of the Creek Indians and against the state of Georgia. In particular, the intellectual advancement of the country was a national priority for Washington, and he called on Congress to federally fund the arts and sciences. His 1790 message declared that nothing “can better deserve your patronage, than the promotion of Science and Literature,” a point he elaborated at some length. In the first public criticism of a president, a southern member of the House declared on the floor that the Constitution did not authorize Congress “to take any steps in a business of this kind.” Another declared that if that were the case, it should be amended because “on the diffusion of knowledge and literature depend the liberties of this country, and the preservation of the Constitution.” Chastised, Washington held his tongue until his eighth and final annual message in 1796 when he detailed the breadth of his vision. There he called for a national university, a military academy, federal premiums and institutions for the promotion of agriculture as well as manufacturing subsidies and federal manufacture of items necessary for national defense.3 During major events such as war and depression many American political leaders have returned to the original intent of northern and middle state Federalist founders like Benjamin Franklin, Alexander Hamilton and George Washington.
Antifederalists, following the lead of Federal Convention members Elbridge Gerry and George Mason, saw immediately how powerful the federal government could become under the proposed Constitution. They had failed to add a Bill of Rights to it at the Federal Convention, and Antifederalists in general began to demand that the Constitution be amended. The majorities and minorities of eight of the eleven states that ratified the Constitution prior to 1789 proposed 207 Amendments to it; eliminating the duplicates, there were ninety different proposals.4 All of them sought greater limits on federal power. I have always made a distinction between the structural Amendments that sought to limit the powers of Congress, the president or the federal judiciary and those that protected personal liberty, but Patrick Garry makes me realize that that is a false, if convenient, distinction.
Several of the Amendments that James Madison proposed in 1789, one of which forbade the states from violating the rights of conscience, freedom of the press and trial by jury in criminal cases, did not make it through the legislative process. These included clear statements that government is derived from the people and that they have the right to change it, and that it ought to be exercised for their benefit, which included, among other things, generally “pursuing and obtaining happiness and safety.” The House select committee rewrote them into nineteen proposals, two of which were defeated in the ensuing House debate. The Senate cut these back to twelve, ten of which were ratified in 1791. From the moment Madison proposed them they were ridiculed by both Federalists and Antifederalists as a mere “tub to the whale,” designed to divert opponents of the Constitution while the ship of state sailed safely away with its cargo intact. Antifederalists lost a two week campaign in the House to put teeth in the Amendments by adding some of those proposed by the states that seriously limited the powers of the federal government. Most prominent of these was Elbridge Gerry’s motion to amend what became the Tenth Amendment by adding the word “expressly” before “delegated”; this was the language of the Articles of Confederation and this was what the states had called on Congress to enact. The House defeated the motion 32-17; the unusually large minority included southern Federalists who recognized the importance of the Amendment as a protection for slavery.5 Without that one word the Tenth Amendment, given the general welfare and necessary and proper clauses, becomes merely rhetoric. The Ninth Amendment on the other hand is an absolute limit on government power: the enumeration of certain rights shall not be construed to deny others retained by the people; for this we are indebted to George Mason.
Four Maryland and Virginia Federalists provided the votes necessary for the federal government to assume the revolutionary war debt of the states as part of the Funding Act of 1790. By doing so Congress sanctioned the doctrine of implied powers and, despite immediate protests from several southern states, particularly Virginia’s censure of the Funding Act, eight years prior to its famous Resolutions of 1798, liberal construction of the Constitution would prevail until the election of 1800.6 Thomas Jefferson brought the American Revolution to a close by enshrining the southern definition of “limited,” a definition that prevailed until the Civil War and the ensuing Amendments. But even he did not hesitate to interpret the Constitution broadly when he had his heart and mind set on something. In a secret message to Congress, which used the commerce clause as the constitutional power, he convinced it to authorize a military expedition to explore parts of Louisiana, a foreign territory contiguous to the United States, months before he learned of its purchase.7 Future presidents adopted Jefferson’s approach to supporting the arts and sciences and the American continent, the Pacific Ocean and the heavens above them were explored by military expeditions and institutions until the creation of the United States Geological Survey in 1867.
The First Federal Congress adopted what it referred to as Amendments to the Constitution, not a federal Bill of Rights, and that’s how they were known in the United States for one hundred and fifty years. The concept and iconic status of the federal bill of rights was created by the New Deal’s Commission on the Sesquicentennial of the Constitution. Two decades later it had become what Thomas Jefferson predicted: a “legal check” in “the hands of the judiciary.”8
1. Helen E. Veit, Kenneth R. Bowling and Charlene Bangs Bickford, Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore and London, 1991) 14, 41.
2. Alexander Hamilton, An Opinion on the Constitutionality of an Act to Establish a Bank, 23 February 1791, Harold C. Syrett, Jacob E. Cooke, Jean G. Cooke, Cara-Louise Miller, Dorothy Twohig, and Patricia Syrett, eds., The Papers of Alexander Hamilton 8 (New York and L:ondon, 1965) 103; George Clymer to Benjamin Rush, 18 June 1789, Memorial of the Pennsylvania Abolition Society, 3 February 1790, Charlene Bangs Bickford, Kenneth R. Bowling, William C. diGiacomantonio, and Helen E. Veit, eds., Documentary History of the First Federal Congress (22 vols., Baltimore and London, 1972-2016) 16:804, 8:326.
3. Undelivered Inaugural Address, [January 1790], First Annual Message, 8 January 1790, W.W. Abbot, Dorothy Twohig, Philander C. Chase, and Beverly H. Runge, eds., The Papers of George Washington: Presidential Series (17+vols, 1987–) 2:158-73, 4:545; David Andrew Nichols, Red Gentlemen and White Savages: Indians, Federalists, and the Search for Order on the American Frontier (Charlottesville, Virginia, 2008) 121-24; Amanda C. Isaac, Take Note! George Washington the Reader (Mount Vernon, 2013) 4, 81; Eighth Annual Message, 7 December 1796, John C. Fitzpatrick, ed., The Writings of George Washington 35(Washington, D.C., 1940):314-17; Documentary itoryHHHistory of the First Federal Congress 13(1994):1221. On Washington’s disposition in favor of a “liberal construction of the national powers,” see Elizabeth Fleet, ed., “James Madison’s Detached Memoranda,” William and Mary Quarterly, Third Series, 4(1946) :534-68; also at http://memory.loc.gov/master/mss/mjm/26/2100/2183. jpg and Documentary History of the First Federal Congress 21(2015) at 12 February 1791.
4. The best compilation of the Amendments is Edward Dumbauld, The Bill of Rights and What It Means Today (Norman, Oklahoma, 1957), 160-205. It does not contain those proposed by North Carolina and Rhode Island after Congress sent the twelve Amendments to the states.
5. For the legislative history of the Amendments, see Creating the Bill of Rights, -53—the vote is on 51; Kenneth R. Bowling, “‘A Tub to the Whale’: The Founding Fathers and the Adoption of the Federal Bill of Rights,” Journal of the Early Republic 8(1988): 223-51; and William (Loughton) Smith to Edward Rutledge, 10 August 1789, Creating the Bill of Rights, 273.
6. Documentary History of the First Federal Congress 8(1998): 270-71, 298-301.
7. “Chronology,” Elin Woodger and Brandon Toropov, eds. Encyclopedia of the Lewis and Clark Expedition (New York, 2004) 4-5.
8. To James Madison, 15 March 1789, Creating the Bill of Rights, 218.