By: Mike Maharrey
During the ratification debates, supporters of the Constitution insisted that the new general government would only exercise the powers explicitly enumerated in the document. But less than three years after ratification, Alexander Hamilton did a complete 180, suddenly discovered “implied powers” and wrecked the Constitution.
During the Philadelphia Convention, many framers favored a strong national government. In fact, James Madison even proposed a federal veto on state laws. But as the convention wore on, delegates voted down proposals to create a centralized “national” government one by one – including Madison’s federal veto. The Constitution that emerged from the Convention created a general government with a few, defined, enumerated powers.
Opponents of the Constitution warned that the proposed “federal” government would quickly grow in power and scope. But, supporters of the Constitution, including Hamilton, swore this wouldn’t happen. They “sold” the Constitution to a relatively skeptical public by promising that the general government would not be able to go beyond the specific powers laid out in the document.
James Madison gave perhaps the most succinct and clear explanation of the limited nature of the federal government in Federalist #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 the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all 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.” [Emphasis added]
Harry Lee, a delegate to the Virginia ratifying convention, emphasized the limited nature of the proposed government as he summed up the proper way to interpret the Constitution.
“It goes on the principle that all power is in the people, and that rulers have no powers but what are enumerated in that paper. When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed. Is it enumerated in the Constitution? If it be, it is legal and just. It is otherwise arbitrary and unconstitutional.” [Emphasis added]
Even Hamilton took up the limited federal power banner, writing in Federalist #32.
“The State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.” [Emphasis added]
It didn’t take Hamilton long to change his tune. Less than three years after the ratification of the Constitution, Hamilton discovered “implied powers” hidden in the Constitution to justify Congress chartering the First Bank of the United States.
Opponents of the bank, including Thomas Jefferson and James Madison, argued that the lack of specific delegated authority barred Congress from chartering a bank. In response, Hamilton affirmed the doctrine of delegated powers, and then effectively nullified its limiting force. He wrote, “The main proposition here laid down, in its true signification is not to be questioned.” But he continued, insisting, “It is not denied that there are implied as well as express powers, and that the former are as effectually delegated as the latter.”
It’s important to note that had such a concept been advanced during the ratification debates, the states would have never adopted the Constitution.
Madison warned against “the doctrine of implication,” saying, “the danger of it has been felt in other governments. The delicacy was felt in the adoption of our own; the danger may also be felt, if we do not keep close to our chartered authorities.”
The question becomes: who decides the extent of these implied powers? Who determines their limits?
In effect, Hamilton conjured up an almost unlimited reservoir of power the general government can dip into in order to take whatever actions it deems appropriate. Again, this was a 180-degree reversal from the position he took during the ratification debates when he insisted that the new general government would only have the authority to exercise its expressly enumerated powers.
Hamilton’s arguments won the day and Geroge Washington signed the bill chartering the First Bank of the United States.
Hamilton’s victory was a profound defeat for the Constitution. His “implied powers” doctrine set the stage for much of the federal overreach we live with today. Hamilton effectively flipped the constitutional structure on its head. Instead of exercising powers “few and defined,” the powers of the federal government today are “numerous and indefinite.”