Appendix B: Reference Materials
Sources of Founding Documentation and Constitutional Precedence
In some cases, the references in this appendix are simple highlights or summaries with underlining and bold letters to highlight specific points that support the framers prevailing thought and attitude about the contract for the general government. In addition, each referenced document references the website where these documents can be perused in their entirety. The essential point in listing these documents and their availability is to substantiate the veracity of the argument that the inhabitants of the thirteen States in 1787 to 1789, when the States reviewed and ratified the Constitution, they perceived and agreed that the general government possessed very limited and defined RRPs. Their approval was predicated upon the fact that the Constitution only granted the Federal government specific and limited powers. Again, the only way new powers could Constitutionally be assumed is from the States granting these new RRP’s through the Article V Amendment process, which requires three-fourths the States to ratify the Amendments before the RRP can become Constitutional with force. Each State that joined the union from that point forward also adhered to the same understandings of the contract and not the purported interpretation espoused by the general government, progressive politicians and pundits, or the intelligentsia.
With regard to the States’ Ratification Debates references, the references that provided are limited to the debates journals that each States kept. The source website (The Constitution Society) only possesses those journals that are readily available with some that are limited to simple fragments and some States are not present at all. The author has mentioned the Documentary History of the Ratification of the Constitution (DHRC) as an ultimate source; however, all of these materials have not been available for public release. Based on the description, the DRHC not only includes the debates, but also includes local newspaper articles and other documents to reflect the sentiments of the press and the people. The journals that are available are very voluminous in content and therefore, the author has inserted only summary highlights that also support the frame of mind as to the scope, limit, and extent the Founders (States) were willing to grant unto the general government.
The Federalist Papers references are excerpts as well. They included content again that supports the underlying theme that the general government in this Constitutional contract is very limited to powers that are enumerated in the Constitution and that the General, Commerce, Necessary and Proper, and Supremacy Clauses are confined into the scope of these same enumerations. These articles are voluminous as well and clearly repeated and reiterated the limitations and scope of powers to only being within the context of the enumerations within the Constitution and all other powers were implicitly and explicitly left to the States.
FEDERALIST. No. 1
“An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust... History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”
Hamilton, A. (1787). Federalist Papers Number 1. General Introduction, October 27. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa01.htm
FEDERALIST. No. 2
“With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.
This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.”
Jay, J. (1787). Federalist Papers Number 2. Concerning Dangers from Foreign Force and Influence, October 31. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa02.htm
FEDERALIST. No. 10
Note: Though this is a brilliant by James Madison, the quote below is even more salient:
“No man is allowed to be a judge in his own cause” (para. 8)
This should apply also to delegates. Stated differently, no delegate should be a judge in his own cause. In the causes such as Obamacare, the general government cannot judge whether they can apply a new RRP that is not enumerated nor determine its Constitutionality. This is tantamount to self-empowerment. This must be democratically judged by the collective Republic for final disposition in the Republic.
Madison, J. (1787). Federalist Papers Number 10. The Union as a Safeguard Against Domestic Faction and Insurrection (continued), November 22, 1787. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa10.htm
FEDERALIST. No. 14
“In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction.”
Madison, J. (1787). Federalist Papers Number 14. Objections to the Proposed Constitution From Extent of Territory Answered, November 30, 1787. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa14.htm
Debates in the Convention: The State of Pennsylvania, on the Adoption of the Federal Constitution
Note: The following excerpts were provided back to Congress regarding the objections after ratification:
1. The right of conscience shall be held inviolable, and neither the legislative, executive nor judicial powers of the United States shall have authority to alter, abrogate, or infringe any part of the constitution of the several states, which provide for the preservation of liberty in matters of religion.
5. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive, and shall not be granted either by the magistrates of the federal government or others.
6. That the people have a-right to the freedom of speech, of writing and publishing their sentiments, therefore, the freedom of the press shall not be restrained by any law of the United States.
7. That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.
9. That no law shall be passed to restrain the legislatures of the several states from enacting laws for imposing taxes, except imposts and duties upon goods imported or exported, and postage on letters shall be levied by the authority of Congress.
That the sovereignty, freedom and independency of the several states shall be retained, and every power, jurisdiction and right which is not by this constitution expressly delegated to the United States in Congress assembled.
State of Pennsylvania (1787). Debates in the Convention of the State of Pennsylvania, on the Adoption of the Federal Constitution, December 12. Retrieved December 22, 2011, from http://www.constitution.org/afp/pennmi00.htm
FEDERALIST. No. 23
It will indeed deserve the most vigilant and careful attention of the people, to see that it be modeled in such a manner as to admit of its being safely vested with the requisite powers. If any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. A government, the constitution of which renders it unfit to be trusted with all the powers which a free people OUGHT TO DELEGATE TO ANY GOVERNMENT, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. And the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. They ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers.
Hamilton, A. (1787). Federalist Papers Number 23. The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union, December 18, 1787. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa23.htm
FEDERALIST. No. 27
“It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS.” Hamilton (1787d, para 6)
Hamilton, A. (1787). Federalist Papers Number 27. Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered (continued), December 25, 1787. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa27.htm
FEDERALIST. No. 33
If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a goverment, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land... that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.
Hamilton, A. (1788). Federalist Papers Number 33 (para 6). Concerning the General Power of Taxation (continued), January 02, 1788. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa33.htm
Debates in the Convention: The State of Connecticut, on the Adoption of the Federal Constitution
Note: As one reads this fragment of Connecticut’s Journal as they debated the Constitution, one can see the strict concerns of the powers of taxation. One note stated in the abridgement of this record was:
“The Constitution effectually secures the states in their several rights. It must secure them for its own sake; for they are the pillars which uphold the general system.”
Commonwealth of Connecticut (1788). Debates in the Convention of the State of Connecticut, on the Adoption of the Federal Constitution, January 4, 1788. Retrieved December 22, 2011, from http://www.constitution.org/rc/rat_ct.htm
Debates in the Convention :The Commonwealth of Massachusetts, on the Adoption of the Federal Constitution
Note: As one reads this journal of the Massachusetts debate of the Constitution, one can see the strict concerns of powers and the assurances that the delegated powers are limited to the objects or enumerations. The people of Massachusetts clearly saw the potential of evil men stretching strictly delegated powers to the ability to assume implied over other matters not enumerated and also demanded what is now known as the Tenth Amendment. Massachusetts ultimately ratifies the Constitution with the following stipulations (please note the first stipulation). Of course there are many more relevant points worth reading that support the limited and defined general government:
“And, as it is the opinion of this Convention, that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of the commonwealth, and more effectually guard against an undue administration of the federal government, the Convention do therefore recommend that the following alterations and provisions be introduced into the said Constitution: —
First. That it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.
Fifthly. That Congress erect no company with exclusive advantages of commerce.
Commonwealth of Massachusetts (1788) Debates in the Convention of the Commonwealth of Massachusetts, on the Adoption of the Federal Constitution. January 9, 1788. Retrieved December 22, 2011, from http://www.constitution.org/rc/rat_ma.htm
FEDERALIST. No. 40
We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.
Madison, J. (1788). Federalist Papers Number 40. On the Powers of the Convention to Form a Mixed Government Examined and Sustained, January 18, 1788. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa40.htm
FEDERALIST. No. 41
Note: In this Article, James Madison points out how the Constitution used the same language in the Articles of Confederation and that the limitation of the General Welfare Clause and the Necessary and Proper Clause are confined to only those enumerated powers within the Constitution.
“Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “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,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction” Madison (1788, January 19).
Note: The concept of paying taxes duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare was only for those enumerated RRPs and not implied for whimsical choosing.
Madison, J. (1787). Federalist Papers Number 41. General View of the Powers Conferred by The Constitution, January 19, 1788. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa41.htm
FEDERALIST. No. 43
“The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed” (para. 29).
“that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate.” Madison (para 30).
Madison, J. (1788). Federalist Papers Number 43. The Powers Conferred by the Constitution Further Considered (continued), January 23, 1788. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa43.htm
FEDERALIST. No. 45
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
Madison, J. (1788). Federalist Papers Number 45. Alleged Danger From the Powers of the Union to the State Governments Considered, January 26, 1788. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa45.htm
FEDERALIST. No. 46
“Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments.”
Note: Defeating these would be by conventions and elections.
Madison, J. (1788). Federalist Papers Number 46. The Influence of the State and Federal Governments Compared, January 29, 1788. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa46.htm
FEDERALIST. No. 49
Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention
Note: The above title speaks for itself in this Article, and was foreseen as how one branch would be able to rely upon the States from the jealous energies exerted from one branch to another (i.e. the Executive branch encroaching upon the Legislative branch). Previously, Madison asserted that if a State felt the general government became too oppressive, they could always secede. Lincoln was wrong on his understanding of the Contract.
Madison, J. (1788). Federalist Papers Number 49. Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention, February 2, 1788. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa49.htm
FEDERALIST. No. 51
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions” (Madison, 1788, para. 4).
Madison, J. (1788). Federalist Papers Number 51. The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, February 6 1788. Retrieved December 22, 2011, from http://www.constitution.org/fed/federa51.htm
Debates in the Convention: The State of Maryland, on the Adoption of the Federal Constitution
Note: Here are a few Amendments forwarded upon ratification.
The following amendments to the proposed Constitution were separately agreed to by the committee, most of them by a unanimous vote, and all of them by a great majority.
1. That Congress shall exercise no power but what is expressly delegated by this Constitution.
By this amendment, the general powers given to Congress by the first and last paragraphs of the 8th sect. of art. 1, and the 2d paragraph of the 6th article, would be in a great measure restrained; those dangerous expressions, by which the bills of rights, and constitutions, of the several states may be repealed by the laws of Congress, in some degree moderated; and the exercise of constructive powers wholly prevented.
6. That the federal courts shall not be entitled to jurisdiction by fictions or collusion.
12. That the freedom of the press be inviolably preserved.
13. That the militia shall not be subject to martial law, except in time of war, invasion, or rebellion.
State of Maryland (1788). Debates in the Convention of the State of Maryland, on the Adoption of the Federal Constitution, April 21. Retrieved December 22, 2011, from http://www.constitution.org/rc/rat_md.htm
Debates in the Convention: The State of New York, on the Adoption of the Federal Constitution
Note: Again, in New York, the limitation of objects and powers was delineated to the state convention by Hamilton when he said, “Those objects which are more limited.” In addition, one can see a very lengthy resolution dialogue with regard to Amendments to the Constitution and finally that New York expected a Bill of Rights to be drafted for ratification. All three Convention delegates testified in the proceedings. This was one of the most heated and complex debate, in the interest of saving print, the author leaves this debate for the researcher to peruse on their own volition with only the following two amendments asserted back as their defined understandings. Interestingly enough, the first one Hamilton violated out the gate with his Assumption Act.
“To the paragraph respecting the borrowing of money, Mr. LANSING proposed the following amendment: — "Provided, That no money be borrowed on the credit of the United States, without the assent of two thirds of the members of both houses present."”
“Respecting the power to make all laws necessary for the carrying the Constitution into execution, — "Provided, That no power shall be exercised by Congress, but such as is expressly given by this Constitution; and all others, not expressly given, shall be reserved to the respective states, to be by them exercised."”
New York State (1788). Debates in the Convention of the State of New York, on the Adoption of the Federal Constitution, June 17, 1788. Retrieved December 22, 2011, from http://www.constitution.org/rc/rat_ny.htm
Debates in the Convention: The Commonwealth of Virginia, on the Adoption of the Federal Constitution
Note: Other than New York, the debates of the Constitution were very elucidating to the fact that the general government was defined as understood within the Constitution to be limited to the enumerated powers only and that the general government could not assume any new powers without amending the Constitution. This debate clearly ripped through the concept of State control and oversight regarding amendments and based on the asserted amendments that follow, the Commonwealth of Virginia clearly understood and expected all powers not delegated to the general government in the Constitution, which they reviewed, were wholly left to the states. However, because of their lack of trust, they insisted in these “Amendments.”
"1st. 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.
17th. 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 be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution.
Commonwealth of Virginia (1788). Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution, June 27, 1788. Retrieved December 22, 2011, from http://www.constitution.org/rc/rat_va.htm
James Madison’s Address in Congress
“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.
It has been said, that it is unnecessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be inforced; because the state legislatures will jealously and closely watch the operations of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people's liberty. I conclude from this view of the subject, that it will be proper in itself, and highly politic, for the tran-quility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of government, as a declaration of the rights of the people” (Madison, 1789, para. 46 & 47).”
Madison, J. (1789). Speech in Congress on the Removal Power, September 8. Retrieved November 22, 2011, from http://www.constitution.org/jm/17890608_removal.htm
James Madison’s Address in the House of Representatives
“It is supposed, by some gentlemen, that Congress have authority not only to grant bounties in the sense here used, merely as a commutation for drawback, but even to grant them under a power by virtue of which they may do any thing which they may think conducive to the general welfare! This, sir, in my mind, raises the important and fundamental question, whether the general terms which have been cited are to be considered as a sort of caption, or general description of the specified powers; and as having no further meaning, and giving no further powers, than what is found in that specification, or as an abstract and indefinite delegation of power extending to all cases whatever -- to all such, at least, as will admit the application of money -- which is giving as much latitude as any government could well desire.
I, sir, have always conceived -- I believe those who proposed the Constitution conceived -- it is still more fully known, and more material to observe, that those who ratified the Constitution conceived -- that this is not an indefinite government, deriving its powers from the general terms prefixed to the specified powers -- but a limited government, tied down to the specified powers, which explain and define the general terms.
It is to be recollected that the terms "common defence and general welfare," as here used, are not novel terms, first introduced into this Constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the old Articles of Confederation, where, although they are susceptible of as great a latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary, it was always considered clear and certain that the old Congress was limited to the enumerated powers, and that the enumeration limited and explained the general terms. I ask the gentlemen themselves, whether it was ever supposed or suspected that the old Congress could give away the money of the states to bounties to encourage agriculture, or for any other purpose they pleased. If such a power had been possessed by that body, it would have been much less impotent, or have borne a very different character from that universally ascribed to it.
The novel idea now annexed to those terms, and never before entertained by the friends or enemies of the government, will have a further consequence, which cannot have been taken into the view of the gentlemen. Their construction would not only give Congress the complete legislative power I have stated, -- it would do more; it would supersede all the restrictions understood at present to lie, in their power with respect to a judiciary. It would put it in the power of Congress to establish courts throughout the United States, with cognizance of suits between citizen and citizen, and in all cases whatsoever.
This, sir, seems to be demonstrable; for if the clause in question really authorizes Congress to do whatever they think fit, provided it be for the general welfare, of which they are to judge, and money can be applied to it, Congress must have power to create and support a judiciary establishment, with a jurisdiction extending to all cases favorable, in their opinion, to the general welfare, in the same manner as they have power to pass laws, and apply money providing in any other way for the general welfare. I shall be reminded, perhaps, that, according to the terms of the Constitution, the judicial power is to extend to certain cases only, not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen, that the specification of certain objects does not limit the import of the general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objects of legislative regulations -- as well such as fall under the judiciary article in the Constitution as those falling immediately under the legislative article; and if the partial enumeration of objects in the legislative article does not, as these gentlemen contend, limit the general power, neither will it be limited by the partial enumeration of objects in the judiciary article.
There are consequences, sir, still more extensive, which, as they follow dearly from the doctrine combated, must either be admitted, or the doctrine must be given up. If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may a point teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.
The language held in various discussions of this house is a proof that the doctrine in question was never entertained by this body. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this government, as limited to certain enumerated powers, instead of extending, like other governments, to all cases not particularly excepted. In a very late instance -- I mean the debate on the representation bill -- it must be remembered that an argument much used, particularly by gentlemen from Massachusetts, against the ratio of 1 for 30,000, was, that this government was unlike the state governments, which had an indefinite variety of objects within their power; that it had a small number of objects only to attend to; and therefore, that a smaller number of representatives would be sufficient to administer it.
In short, sir, without going farther into the subject. Which I should not have here touched at all but for the reasons already mentioned, I venture to declare it as my opinion, that, were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America; and what inferences might be drawn, or what consequences ensue, from such a step, it is incumbent on us all to consider.
Madison, J. (1792). On the Cod Fishery Bill, granting Bounties. House of Representatives, February 7, 1792, 1. Retrieved December 22, 2011, from Constitution Society website: http://constitution.org/je/je4_cong_deb_12.htm
Washington’s Farewell Address 1796
This Government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true Liberty. The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish Government presupposes the duty of every individual to obey the established Government.
However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government; destroying afterwards the very engines, which have lifted them to unjust dominion.
Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the constitution, alterations, which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments, as of other human institutions; that experience is the surest standard, by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and opinion; and remember, especially, that, for the efficient management of our common interests, in a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable. Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. It is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property.
It is important, likewise, that the habits of thinking in a free country should inspire caution, in those intrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way, which the constitution designates. But let there be no change by usurpation; for, though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.
Of all the dispositions and habits, which lead to political prosperity, Religion and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. The mere Politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.
As a very important source of strength and security, cherish public credit. One method of preserving it is, to use it as sparingly as possible; avoiding occasions of expense by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it; avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertions in time of peace to discharge the debts, which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burthen, which we ourselves ought to bear. The execution of these maxims belongs to your representatives, but it is necessary that public opinion should cooperate. To facilitate to them the performance of their duty, it is essential that you should practically bear in mind, that towards the payment of debts there must be Revenue; that to have Revenue there must be taxes; that no taxes can be devised, which are not more or less inconvenient and unpleasant; that the intrinsic embarrassment, inseparable from the selection of the proper objects (which is always a choice of difficulties), ought to be a decisive motive for a candid construction of the conduct of the government in making it, and for a spirit of acquiescence in the measures for obtaining revenue, which the public exigencies may at any time dictate.
Washington, G. (1796). George Washington's Farewell Address to the People of the United States, September 26. Retrieved December 22, 2011, from http://www.constitution.org/gw/fare_add.htm
Kentucky Resolution of 1798
1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress...
that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact... that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism — free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the Alien and Sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits, Let him say what the government is, if it be not a tyranny, which the men of our choice have con erred on our President, and the President of our choice has assented to, and accepted over the friendly stranger to whom the mild spirit of our country and its law have pledged hospitality and protection: that the men of our choice have more respected the bare suspicion of the President, than the solid right of innocence, the claims of justification, the sacred force of truth... That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States (not merely as the cases made federal, casus fœderis but), in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shalt be exercised within their respective territories.
Jefferson, T. (1798). The Kentucky Resolution of 1798. Retrieved December 22, 2011, from http://www.constitution.org/cons/kent1798.htm
Virginia Resolution of 1798
RESOLVED, That the General Assembly of Virginia, doth unequivocably express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it's existence and the public happiness.
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.
That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the "Alien and Sedition Acts" passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.
That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, "the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States," and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other... the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.
Madison, J. (1798). The Virginia Resolution of 1798. Retrieved December 22, 2011, from Constitution Society website: http://www.constitution.org/cons/virg1798.htm
Kentucky Resolution of 1799
“That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:
AND FINALLY, in order that no pretexts or arguments may be drawn from a supposed acquiescence on the part of this commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of federal compact; this commonwealth does now enter against them, its SOLEMN PROTEST.”
Approved December 3rd, 1799.
State of Kentucky (1799). The Kentucky Resolution of 1799. Retrieved December 22, 2011, from http://www.constitution.org/cons/kent1799.htm
President Madison’s 1817 Veto of the Bonus Bill
To the House of Representatives of the United States:
Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
Madison, J. (1817, March 3). Veto of federal public works bill. Retrieved December 22, 2011, from http://constitution.org/jm/18170303_veto.htm
President Monroe’s Veto of The Cumberland Road Bill
Having stated my objections to the bill, I should now cheerfully communicate at large the reasons on which they are founded if I had time to reduce them to such form as to include them in this paper. The advanced stage of the session renders that impossible. Having at the commencement of my service in this high trust considered it a duty to express the opinion that the United States do not possess the power in question, and to suggest for the consideration of Congress the propriety of recommending to the States an amendment to the Constitution to vest the power in the United States, my attention has been often drawn to the subject since, in consequence whereof I have occasionally committed my sentiments to paper respecting it. The form which this exposition has assumed is not such as I should have given it had it been intended for Congress, nor is it concluded. Nevertheless, as it contains my views on this subject, being one which I deem of very high importance, and which in many of its bearings has now become peculiarly urgent, I will communicate it to Congress, if in my power, in the course of the day, or certainly on Monday next.
Monroe, J. (1822). Monroe’s Veto Message. An act for the preservation and repair of the Cumberland road, May 4 Retrieved December 22, 2011, from http://www.presidency.ucsb.edu/ws/?pid=66322
James Madison’s Speech in the Virginia Constitutional Convention
“It is sufficiently obvious, that persons now and property are the two great subjects on which Governments are to act; and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated. The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right. The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. In monarchies, the interests and happiness of all may be sacrificed to the caprice and passions of a despot. In aristocracies, the rights and welfare of the many may be sacrificed to the pride and cupidity of the few. In republics, the great danger is, that the majority may not sufficiently respect the rights of the minority.” Madison (1829, para. 1).
Madison, J. (1829, December 2). Speech in the Virginia Constitutional Convention. Retrieved December 22, 2011, from http://www.constitution.org/jm/18291202_vaconcon.htm
President Jackson’s Veto of a subscription of stock in the Maysville, Washington, Paris, and Lexington Turnpike Road Company
To avoid these evils it appears to me that the most safe, just, and federal disposition which could be made of the surplus revenue would be its apportionment among the several States according to their ratio of representation, and should this measure not be found warranted by the Constitution that it would be expedient to propose to the States an amendment authorizing it.
The constitutional power of the Federal Government to construct or promote works of internal improvement presents itself in two points of view--the first as bearing upon the sovereignty of the States within whose limits their execution is contemplated, if jurisdiction of the territory which they may occupy be claimed as necessary to their preservation and use; the second as asserting the simple right to appropriate money from the National Treasury in aid of such works when undertaken by State authority, surrendering the claim of jurisdiction. In the first view the question of power is an open one, and can be decided without the embarrassments attending the other, arising from the practice of the Government. Although frequently and strenuously attempted, the power to this extent has never been exercised by the Government in a single instance. It does not, in my opinion, possess it; and no bill, therefore, which admits it can receive my official sanction.
But I do not entertain such gloomy apprehensions. If it be the wish of the people that the construction of roads and canals should be conducted by the Federal Government, it is not only highly expedient, but indispensably necessary, that a previous amendment of the Constitution, delegating the necessary power and defining and restricting its exercise with reference to the sovereignty of the States, should be made. Without it nothing extensively useful can be effected. The right to exercise as much jurisdiction as is necessary to preserve the works and to raise funds by the collection of tolls to keep them in repair can not be dispensed with. The Cumberland road should be an instructive admonition of the consequences of acting without this right. Year after year contests are witnessed, growing out of efforts to obtain the necessary appropriations for completing and repairing this useful work. Whilst one Congress may claim and exercise the power, a succeeding one may deny it; and this fluctuation of opinion must be unavoidably fatal to any scheme which from its extent would promote the interests and elevate the character of the country. The experience of the past has shown that the opinion of Congress is subject to such fluctuations.
Jackson A. (1830). President Jackson’s Veto Message May 27. Retrieved December 22, 2011, from http://www.presidency.ucsb.edu/ws/?pid=67036