By: Mike Maharrey
We have flipped the American constitutional system on its head. It operates exactly the opposite of how the supporters of the Constitution said it would.
So, what type of government did the Constitution create?
Is it powerful or weak? Is it expansive or limited? How much authority does it wield? Can it act in any situation, or does it have a limited sphere? How you answer these questions will shape your view of American government and guide your understanding of every clause in 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 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.
The Philadelphia Convention reveals much about the framers’ intent, but we find the true meaning of the Constitution in the ratification process. It was there that the people consented to the new system. By studying the debates, we come to understand exactly what the delegates representing the people thought they were consenting to.
The voters in each state were an important part of the ratification process. They elected representatives to conventions convened to approve or reject the document. The debates in these state conventions illuminate their understanding of the Constitution at the time and thus reveal the original meaning, as I discussed in chapter one. As you’ll recall, James Madison affirmed this view of constitutional interpretation in a letter to Henry Lee.
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.”
Many Americans misconstrue the ratification debates, assuming those favoring the Constitution (the federalists) advocated for a strong, central government, while opponents (anti-federalists) wanted a weaker general government. In fact, virtually everybody agreed (at least publicly) that the Constitution was intended to create a limited federal authority, leaving most power to the states. The actual debate revolved around whether the Constitution, as written, would create such a limited government. The federalists insisted that it would, while anti-federalist expressed deep fear that it would not.
The Federalist Papers are the best-known source of federalist arguments. Published in New York newspapers, these essays, written by John Jay, James Madison and Alexander Hamilton, laid out key arguments to support ratification and give us a strong sense of how proponents “sold” the Constitution to a skeptical public. Think of it like the sticker taped inside the window of a used car.
Madison made the clearest case for the Constitution’s limited nature 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]
While the Federalist Papers shed valuable light on arguments used to “sell” the Constitution to the people, they weren’t nearly as influential at the time as you might think based on their popularity today. In fact, the Federalist essays received only limited circulation outside New York. The records of the ratification debates are more important, and provide us with a deeper and more illuminating understanding of the original meaning as it was explained to reluctant convention delegates.
Without exception, these debates record supporters arguing vehemently that anti-federalist fears of a powerful national government were unfounded. It was on this basis that the Constitution was ratified. Had the people believed that the federal government would morph into the all-powerful entity we live under today, they would have soundly rejected its ratification.
James Wilson of Pennsylvania set the stage in his famous State House Yard speech on Oct. 6, 1787. Anticipating objections to expanding power of the general government, he asserted that Congress would have very limited authority, circumscribed by the specific delegated powers. He distinguished between the state constitutions, which empowered government to do anything not prohibited and the new U.S. Constitution, which limited the government’s power to only those objects specified.
“It will be proper … to mark the leading discrimination between the State constitutions and the constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything which is not reserved is given; but in the latter the reverse of the proposition prevails, and everything which is not given is reserved.”
Wilson’s speech carries even more weight when you realize he was an ardent nationalist and yearned for a powerful central government that would effectively rule over the states. He understood this view would doom ratification and emphasized the limited nature of the general government under the proposed Constitution.
The people, speaking through representatives they elected to their state ratifying conventions, ultimately accepted this view and ratified on that basis.
Fast-forward 232 years. The government looks nothing like the one Madison and Wilson described. In fact, it looks exactly oppositive.
The federal government’s powers are numerous and indefinite. It claims authority over virtually every aspect of our lives, from dictating what kind of lightbulbs we can screw into our fixtures to how much water can flush down our toilets. Meanwhile, the states have effectively been relegated to the role of a servant, left with very few powers at all.
The American system is flipped on its head. We need to flip it back.