Clause 1 of the powers

[Calvin Johnson]

Randy--
        The theory that the Senate made a difference  is nonsense.  Senate is
prosmall state, but Delaware, Georgia Maryland are small slave states.  The
South's percentage in the House is within a tenth of a  percent of its
percentage of the Senate.  Even if you treat Delaware as nonslave (I have
trouble with that ), the Senate compromise makes no material differecne,
only a couple of points, and still minority.  There is commonly puffery by
the losers - and the Senate is an outrage as a matter of democratic
theory-- but it made no objective regional difference.  The Anti-Federalist
fought for Senate-like power structure, a continuation of the status quo,
so that Anti-Federalist sentiment would be won in favor of thecentral
government by the Senate forming compromise.
        Your dependent variable, the vote rejecting the Sherman proposal, is a
reaction to the fact that the Sherman resolution would have immunized  the
internal police of the states from federal power and 2-6 (with COnn, which
later became fanatcially nationalist by acclamation) being one of the
states that wanted protection for internal police.  The rejection is avidly
pro-nationalist and you are distorting it as if it were an anti-nationalist
vote.
        Time to rewrite.

At 02:59 PM 09/13/2000 -0500, you wrote:
>One thing that needs to be recalled when moving from the Bedford resolution
>to the enumeration of powers is the effect on the Convention of the decision
>to apportion to each state equal representation in the Senate.  Here is an
>excerpt from a work of mine that is in progress. (Also as I am currently in
>the midst of a meeting number of deadlines, I may not be able to respond to
>responses to this post.  Do not take silence as acquiescence.):
>
>        The enumeration of congressional powers was adopted by the
Convention after
>rejecting more general grants of legislative power as overly vague.  For
>example, when it was proposed to grant Congress all powers then exercised by
>the Confederation and  “moreover to legislate in all cases to which the
>separate states are incompetent; or in which the harmony of the U.S. may be
>interrupted by the exercise of individual legislation,” Pierce Butler, of
>South Carolina, objected that: “The vagueness of the terms rendered it
>impossible for any precise judgment to be formed.”  In response, Nicholas
>Gorham of Massachusetts explained that: “The vagueness of the terms
>constitutes the propriety of them.  We are now establishing general
>principles, to be extended hereafter into details which will be precise &
>explicit.”  Fellow delegate from South Carolina, John Rutlidge renewed
>Butler’s objection “and moved...that a specification of the powers comprised
>in the general terms, might be reported.”
>        The demand for specificity immediately followed the decision that
very
>morning by a bare majority of the Convention to allocate equal
>representation to every state in the Senate.  As explained by Edmund
>Randolph of Virginia, “The vote of this morning (involving an equality of
>suffrage in 2d branch) had embarrassed the business extremely.  All the
>powers given in the Report from the Come. of the whole, were founded on the
>supposition that a Proportional representation was to prevail in both
>branches of the Legislature.”   Though it had earlier proposed the so-called
>“Virginia Plan” putting sweeping powers in the hands of Congress, it has
>been suggested [by Joseph Lynch in his book, Negotiating the Constitution]
>that, once it lost the assurance that it would dominate both houses of the
>future Congress, Virginia and the other Southern states began pressing for a
>specificity of powers.  This insistent demand eventually resulted in the
>list of enumerated powers drafted initially by the Committee of Detail.
>        The vote over the composition of the Senate was so disruptive to
the prior
>stances of various members and states concerning the scope of federal powers
>that when, later the same  day, Edmund Randolph urged adjournment because
>“we were unprepared to discuss this matter further,” more than one delegate
>took him to be calling for an adjournment of the entire Convention so that
>members might return home for consultation.  By the next day, and after a
>meeting of delegates from the larger states to discuss the “proper steps to
>be taken in consequence of the vote in favor of an equal Representation in
>the [Senate],” the general description of the powers of Congress was
>characterized by Gouveneur Morris, of Pennsylvania as “the abstract of the
>powers necessary to be vested in the general Government” and by his fellow
>Pennsylvanian, James Wilson as “the general principle.”  Roger Sherman, of
>Connecticut read to the convention an enumeration of powers he had drafted,
>though it was not approved (and Madison did not record its contents).
>        Significantly, weeks later, during its consideration of the precise
>enumeration of powers to be adopted, the Convention rejected the following
>language that the Committee on Detail had proposed be added to the list:
>
>"and to provide, as may become necessary, from time to time, for the well
>managing and securing the common property and general interests and welfare
>of the United States in such a manner as shall not interfere with the
>Governments of individual States in matters which respect only their
>internal police, or for which their individual authorities may be
>competent."
>
>By making this proposal, the Committee confirmed that so general a power was
>not implicit in the enumeration it had already proposed.  By rejecting it,
>the Convention affirmed what seems apparent on the face of the Constitution:
>that Congress lacked a general power to legislate in the public interest and
>possessed only the enumerated powers delegated to it.
>
>__________________________________________
>Randy E. Barnett
>Austin B. Fletcher Professor
>Boston University School of Law
>765 Commonwealth Ave.
>Boston, MA  02215
>mailto:rbarnett at bu.edu
>(617) 353-3099 (phone)
>(617) 353-3077 (fax)
>http://www.bu.edu/rbarnett
>http://www.bu.edu/rbarnett/SOL.htm (Structure of Liberty page)
>http://www.LysanderSpooner.org (Lysander Spooner Website)
>

Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. 26th St.
Austin, TX  78705
(512) 232-1306  (voice)
FAX: (512) 232-2399
Website:  http://www.utexas.edu/law/faculty/calvinjohnson