Strengthening Constitutional Self-Government

No Left Turns

Quotation du Jour

Since the scope of federal power is a hot topic now, it might be worth pondering this bit from Hamilton's Opinion as to the Constitutionality of the Bank of the United States (emphasis added):

It is conceded that implied powers are to be considered as delegated equally with express ones. Then it follows, that as a power of erecting a corporation may as well be implied as any other thing, it may as well be employed as an instrument or mean of carrying into execution any of the specified powers, as any other instrument or mean whatever. The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to the trade with foreign countries, or to the trade between the States, or with the Indian tribes; because it is the province of the federal government to regulate those objects, and because it is incident to a general sovereign or legislative power to regulate a thing, to employ all the means which relate to its regulation to the best and greatest advantage.

In the founding era, the debate was between strict and loose construction. Nowadays, we might say that it's between construction and deconstruction.

Discussions - 9 Comments

I was just thinking about this as I was preparing for the Ashbrook/Liberty Fund seminar on the ratificatino of the Constitution.

The real debate over the constitutionality of the National Bank was framed within a consensus of limited government in a written Constitution and enumerated powers to the federal government outside of which they could not act. The specific debate over the "necessary and proper" clause saw Jefferson arguing for the very strict and literal meaning of the words "necessary" and "proper" whereas Hamilton took a more expansive view, but, here's the important caveat, stated very clearly and in no uncertain terms, that it absolutely had to be related to the aforesaid enumerated powers of Article I, section 8.

No one was arguing for unlimited powers of Congress in which that body could do anything that it considered "necessary" or "proper" and thereby had unlimited powers. The question was whether Congress had the authority to act within its enumerated/written powers and related things about which the framers had not envisioned (though they had to be necessary and proper as related to those powers).

It was not a vision of unlimited government. It was not a vision of a living Constitution. It was not a vision of allowing government to do whatever it wanted to do because it might benefit the country. It was instead a relatively narrow debate that very properly occurred within the framework of the written Constitution.

But Jefferson was willing to expand those powers of limited government when he saw something as necessary and proper and for the general welfare. He could be expansive, too, as with the Louisiana Purchase and maybe even with the embargo. Hamilton saw those in much the same light as Jefferson saw the National Bank.

Yet in your main point, that "no one was arguing for unlimited powers of Congress" is quite true. The Constitution is our restraint on living government. Government has power, I liked (In the "Opinion" referred to in the post) where Hamilton called those "resting powers" better than the reference to "implied powers".

Hamilton uses the word, "expediency" and seems to be arguing against it. Democracy wants what is expedient. Perhaps what conservatism has to be about is arguing against what is expedient. It is going to be hard to make that a popular political position. Our government keeps exercising what might be best left as "resting powers". I find the distinction between "construction" and "deconstruction" to be a little irrelevant since our overactive government seems to have been doing both at the same time for nearly the last hundred years.

Jefferson, of course, was about the only person who thought that the U.S. government lacked the right to acquire territory. The others, including Madison and Gallatin, thought that it was an inherent power of states.

More interesting is John Quincy Adams point: acquiring territory is perfectly constitutional. On the other hand, forcibly to change the allegiance of all the residents of Louisiana, without their consent, is a violation of the principles of 1776.

Jefferson couldn't pass up a great deal like that. It's probably silly, but I have always thought his shopper's acquisitive instincts for a great buy at a great price overrode that principle. Making a National Road (into the territory, but across states) to populate and secure the Purchase was contra previous principle, too. Aren't we glad he had the good sense?

JQA looked at Napoleon (as did almost everyone else) and considered the securing of most of the continent worth a little violation of principle. Did many people in the Lousiana Territory complain?

Actually, if memory serves, many people in the Louisiana territory did object. JQA, like Jefferson, prepared an amendment. Unlike Jefferson, however, he introduced it, if memory serves. His amendment would not have blocked the purchase. It would, however, have done something about making the residents of Louisiana citizens by consent, rather than by force.

Perhaps Jefferson and his party objected because they realized that was a back-door way of introfucing national citizenship, on the principles of the Declaration, firmly into the Constitution. Recall that Jefferson's objection to the Alien Acts was that they were taking away a prerogative of the States, not that they were arbitrary.

Jefferson, of course, said, "let us not make it [the constitution] a blank paper by construction." But, understanding necessity, he went ahead with it anyway.

Jefferson didn't realize that there's a difference between Hamiltonian construction and arbitrary government. Jefferson, in other words, read the Federalists the same way that the Southerners read Lincoln. To them, any non-literal and narrow reading of the constitution is arbitrary. Southerners like Woodrow Wilson understood that, but turn it on its head, and embraced unilmited government. Garry WIlls takes the same line. He takes the Southern view, learned from his mentor Wilmore Kendall, but embraces Lincoln's supposed repudiation of the founding.

JQA certainly thought those in the Louisiana would object if it were put to a vote, but that does not mean it was true. It was his surmise. New Orleans certainly was French, but think about Aaron Burr's conspiracy. He wasn't speaking to a bunch of French people in the West of 1805.

As to JQA and the Purchase, reading Bemis on this, the whole thing was messy. Only some Federalists were opposed to the Purchase (not Hamilton) and JQA supported it eventually. It looks like Adams' amendment would have made the people in the territory citizens and without required statehood. His protests by resolution were about taxation; no one else supported those.

I think Jefferson actually understood Hamilton, but didn't like him or what he represented. Jefferson really had no problem with arbitrary government when he was the one being arbitrary.

Southerners were only wrong about Lincoln in a matter of degree. To reference another post, they understood him in his principles, which Lincoln may not have read as well in himself and thought merely something like values. To quote your quote from JQA, "But theoretic principles of government can never be carried into practice to their full extent. They must be modified and accommodated to the situations and circumstances of human events and human concerns." I suspect Lincoln would have said the same thing.

Wilson saw government as the engine of progress. As such, it can never be too big if democracy demands that as democracy expresses progress.

Kate, good to see you on the blog again.

I don't think that Jefferson understood Hamilton well at all. He continually feared that Hamilton among the Federalists really meant to impose a monarchical form of government on America that would endanger American liberties and overthrow the republican form of government. The conflict between them was very real and at times bordered on the hysterical. Jefferson truly saw Hamilton and the Federalists as a threat to the republican experiment in self-government and liberty of the American Revolution. Read the letters by Jefferson in the 1790s to get a feel for this. They will not reveal a sense that he properly understood Hamilton and believed him to be a sincere republican who just differed on matters of policy. There was a deep rift there in understanding.

It is in reading those letters of Jefferson, (and also similar ones of Hamilton's) that I came to my conclusion. They are really no different than the politicians of our day wherein liberals call conservatives evil and conservatives call liberals stupid. The rhetoric of the day is different, but the sentiments are the same. There are different premises for modern liberals and conservatives and for Jefferson and Hamilton there were also different premises of what government ought to do. They each understood the premises of the other and just didn't like them. Each used exaggerated rhetoric about the other in their political letters to make the differences clear, back then mostly speaking of corruption of one kind or another. This was not misunderstanding, but a clear dislike.

We like to think of the Founders as misunderstanding each other because of respect and affection and also because with the distance of time, they don't seem all that different to us. Not as they must have seemed to each other, based on what they said. I have had Europeans tell me there is not all that much difference between Republicans and Democrats in the U.S. and that the partisanship is incomprehensible to them based on what they see as shared ideals. Are we just experiencing a misunderstanding? I don't think so.

Jefferson's utter astonishment when the X,Y,Z letters were released (he presumed that President held them back because they showed Federalist perfidy), suggests that he did not understand what the Federalists were up to.

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