The dubious enumerated powers doctrine.

Calvin Johnson CJohnson at law.utexas.edu
Mon Jun 6 14:29:20 PDT 2005


It was the Committee on Detail who took out the "expressly delegated"
limitation of old Article II, so they are not states rightsers.  The
Committee on Detail was also on detail, with a mission to dress the
Resolutions for the public, not to affect policy.  The final language,
at least with the addition of the Brearly Committee's "to provide for
the Common defence and general Welfare" faithly covers the Bedford
Resolution but with language drawn for continuity from the Articles.
The Constitution did nto reject the Bedford Resoltuion, it adopted it.

	Realize both Mason and Randolph (who served on the Committee of
Detail) tell us that the Constituion has too broad a general power that
allows the federal government to swallow the states.  In August 1787,
George Mason wanted alterations so that "the object of the National
Government, [would] be expressly defined, instead of indefinite power,
under an arbitrary Constitution of general clauses."   Mason's
objections tell us that he thought that the Committee of Detail had not
avoided "general clauses" in favor of an enumeration.   After the
Brearly Committee added the phrase "to provide for the common Defence
and general Welfare" to clause 1, Governor Edmund Randolph refused to
sign the Constitution because of "the latitude of the general powers"
and because the "cover of general words" allowed the Congress to swallow
up the states.   Randolph ultimately reversed his position and supported
the Constitution, but for other reasons.  Randolph said he was strongly
in favor of preservation of the Union,  and when it came down to this
Constitution or nothing, he defended the document as ably as anyone
else.   Still, until he changed his mind so as to avoid the breakup of
the union, he opposed the Constitution because he believed it gave a
general power.  Mason and Randolph, at least, thought the text of the
Constitution provided a general federal power rather than an exclusive
enumeration.
	There were people who wanted enumeration but they seem to have
lost on the votes.  Rutledge wanted enumeration and South Carolina voted
against both Bedford Resolution and the Virginia Plan with Bedford
Resolution attached. Still that VP passed 8-2 even without Rutledge's
vote. 

-----Original Message-----
From: Earl Maltz [mailto:emaltz at camden.rutgers.edu] 
Sent: Monday, June 06, 2005 4:21 PM
To: Calvin Johnson
Cc: conlawprof at lists.ucla.edu
Subject: RE: The dubious enumerated powers doctrine.

Yes, but the Committee on Detail had the Bedford Resolution before it,
and rejected it in favor of  specific enumerated powers.  It was these
enumerated powers that were approved by the Convention--not  the
language of the Bedford resolution.

At 03:45 PM 6/6/2005 -0500, Calvin Johnson wrote:
>Earl
>         You missed the important part of the Virginia Plan, the 
>Bedford
>Resolution:  -- and moreover, " to legislate for the general interest 
>of the Union."
>         The Bedford addon passed six states to four and then the full 
>Virginia Plan as amended by the Bedford Resolution passed by eight to 
>two.
>         The language ultimately adopted via the Brearly Committee of 
>Eleven, "to provide for the common defence and general Welfare" is a 
>synonym for the Bedford Resolution.
>
>         No question that Madison's proposal veto of state laws "in any

>case whatsoever"  failed.  Madison created the theory of Federalist 10 
>just to justify that and he thought the whole C a sorry weed without
it.
>Still a lot of the opposition was procedural -- not enough Congressman 
>to review all the local laws the states might pass.  And the common 
>defence and general welfare standard is pretty strong, if not as to
all.
>
>         Plus they took out the "expressly delegated" limitation, so as

>to allow unepxressed peacetime federal passport.
>
>         If there are other counterexamples, too numerous to mention, I

>think you had better mention them.
>
>         Thank goodness we have a written Constitution on these issues 
>and do not need to rely on the spinmeisters.
>         With my best wishes
>                 Calvin
>
>-----Original Message-----
>From: Earl Maltz [mailto:emaltz at camden.rutgers.edu]
>Sent: Monday, June 06, 2005 3:36 PM
>To: Calvin Johnson
>Subject: Re: The dubious enumerated powers doctrine.
>
>The counterexamples to this argument are too numerous to mention, but 
>for now I'll content myself with two.  First, the original Virginia 
>Plan would have armed Congress with the power to "legislate in all 
>cases to which the separate states are incompetent, or in which the 
>harmony of the United States may by interrupted by the exercise of 
>individual legislation."  This proposal was abandoned in favor of an 
>enumeration of powers after Pierce Butler complained that "we are 
>running into an extreme in taking away the powers of the states."  At 
>the end of the drafting process, Charles Pinckney proposed to add a 
>power allowing Congress, by a two-thirds vote of both Houses"to 
>negative all laws passed by the several states interfering, in the 
>opinion of the legislature with the general interests and harmony of 
>the Union."  James Wilson described this proposal as "the keystone 
>wanted to complete the wide arch of government we are raising."  
>Nonetheless, the proposal was withdrawn without a vote after John 
>Rutledge complained that "this alone would damn, and ought to damn the 
>Constitution....It is worse than making mere corporations of [the 
>states] whose by-laws would not be subject to this shackle."
>
>
>
>At 02:45 PM 6/6/2005 -0500, you wrote:
> >         The Constitution drafted in Philadelphia neither said nor 
> >was intended to say that the enumeration was exhaustive.  They took 
> >out the
>
> >"expressly delegated" limitation that had been in the Articles so as 
> >to
>
> >allow the unexpressed peacetime federal passport.  No question 
> >Pinckney
>
> >told South Carolina that the Constittuion gave Congress only the 
> >powers
>
> >expressly delegated to it, but he erred, probably on purpose.
> >Jefferson had it right:
> >         To say, as Mr. Wilson does that ... all is reserved in the 
> >case of the general  government which is not given ... might do for
the
> >Audience to whom it was addressed,      but is surely gratis dictim,
> >opposed by strong inferences from the body of the       instrument,
as
> >well as from the omission of the clause of our present confederation 
> >[Article II], which declared that in express terms.
> >The Anti-Fedealists destroyed the enumerated powers doctrine in the 
> >debate, saying eg "If this doctrine is true, it at least ought to 
> >have [been] clearly expressed in the plan of government."  Brutus 
> >labeled Wilson's argument that all which is not given is reserved as 
> >"rather specious than solid."
> >"Let us compare Wilson's claim that all powers not granted are 
> >reserved," said a Republican in New York, "with the sense of the 
> >framers, as expressed in the instrument itself."  Arthur Lee wrote in

> >Virginia that "Mr. Wilson's sophism has no weight with me when he 
> >declares ... that in this Constitution we retain all we do not give 
> >up,
>
> >because I cannot observe on what foundation he has rested this 
> >curious observation."
> >         It is after all a written Constitution that we are
>interpreting.
> >No inventing parts that are not there.
> >
> >Johnson, The Dubious Enumerated Powers Doctrine,  Const. Commentary 
> >forthcoming.
> >
> >
> >-----Original Message-----
> >From: conlawprof-bounces at lists.ucla.edu 
> >[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
> >Sent: Monday, June 06, 2005 2:31 PM
> >To: conlawprof at lists.ucla.edu
> >Subject: Fwd: Re: The ahistorical federalism.
> >
> >
> > >To: "Calvin Johnson" <CJohnson at law.utexas.edu>, 
> > >conlawprof at lists.ucla.eduhout qu
> > >From: Earl Maltz <emaltz at camden.rutgers.edu>
> > >Subject: Re: The ahistorical federalism.
> > >
> > >Without question, a perceived need to strengthen the federal 
> > >government
> >
> > >was the driving force behind the Constitutional Convention.  
> > >However,
>
> > >this does not imply that federalism was not a critical factor in 
> > >their deliberations.  Indeed, the drafters explicitly made a number

> > >of decisions dealing with (among other things) the idea and 
> > >definition of enumerated powers and the proposed Council of 
> > >Revision that were designed to limit the authority of the 
> > >newly-strengthened federal government and preserve in large measure

> > >the autonomy of the
>states.
> > >
> > >At 01:11 PM 6/6/2005 -0500, Calvin Johnson wrote:
> > >>         The argument that federalism was critical to the thinking

> > >>of the drafters of the Constitution is ahistorical.  The 1787 
> > >>Constitution is a rabidly nationalizing vector written to get the 
> > >>war debts paid, and to put the wicked states into their place.  
> > >>The Articles of Confederation had given Congress only the powers 
> > >>expressly
> >
> > >>delegated and the Framers found that limitation to be "destructive

> > >>to the Union" and they took it out.  If  people say the original 
> > >>meaning of the Constitution has some states rights in it, I ask 
> > >>them
>
> > >>"What
> >Constitution are you talking
> > >>about?"    "The evils suffered and feared from weakness in
> >Government,"
> > >>Madison had to tell Jefferson, "have turned the attention more 
> > >>toward the means of strengthening the [government] than of 
> > >>narrowing
>[it]."
> > >>Johnson, Righteous Anger at the Wicked States: The Meaning of the 
> > >>Founders Constitution (Cambridge 2005) 
> > >>http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
> > >>
> > >>-----Original Message-----
> > >>From: conlawprof-bounces at lists.ucla.edu 
> > >>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
> > >>Sent: Monday, June 06, 2005 12:41 PM
> > >>To: lsolum at sandiego.edu; forwarding for fcross; 
> > >>conlawprof at lists.ucla.edu
> > >>Cc: DavidEBernstein at aol.com; conlawprof at lists.ucla.edu; 
> > >>MGRABER at gvpt.umd.edu
> > >>Subject: Re: The opinions in Ashcroft v. Raich
> > >>
> > >>I suppose it depends on the question "critical to whom."  If you 
> > >>are
>
> > >>talking about those who drafted both the original Constitution and

> > >>the
> >
> > >>Reconstruction amendments, considerations of federalism were 
> > >>absolutely central to their thinking.  If you are talking about 
> > >>Justice Stevens personally, he obviously could care less.
> > >>
> > >>At 10:32 AM 6/6/2005 -0700, Lawrence Solum wrote:
> > >> >Frank writes,
> > >> >
> > >> > >"It seems like we went a few
> > >> > > decades without even recognizing such limitations, and today,

> > >> > >as the
> > >>
> > >> > >case  illustrates, they are far from critical.
> > >> >
> > >> >This doesn't seem like the proper criterion--especially in the 
> > >> >constitutional context.  We "went a few decades" under Plessy, 
> > >> >and
>
> > >> >more
> > >>
> > >> >than a few without significant enforcement of any of the 
> > >> >provisions of the frist amendment, but presumably those 
> > >> >provisions
>
> > >> >are exactly the one's that would be considered "critical" by
>Justice Stevens.
> > >> >
> > >> >Larry
> > >> >
> > >> >On 6/6/05, Frank Cross <crossf at mail.utexas.edu> wrote:
> > >> > >
> > >> > > "Apparently, however, the Constitution's limitations on 
> > >> > > federal
>
> > >> > > power--critical by any measure to the American system of 
> > >> > > government--are not a "special concern," or even especially
> > >>important."
> > >> > >
> > >> > > I wonder about this.  I suppose I can see how some emphasize 
> > >> > > the limitations on federal power, but I hardly think they are

> > >> > > critical by any measure to the American system of government.
> > >> > > It
> >
> > >> > > seems like we went a few decades without even recognizing 
> > >> > > such limitations, and
> > >>
> > >> > > today, as the case illustrates, they are far from critical.
> > >> > >
> > >> > >
> > >> > > _______________________________________________
> > >> > > To post, send message to Conlawprof at lists.ucla.edu To 
> > >> > > subscribe, unsubscribe, change options, or get password, see
> > >> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > >> > >
> > >> > > Please note that messages sent to this large list cannot be 
> > >> > > viewed as
> > >> > private.  Anyone can subscribe to the list and read messages 
> > >> > that
>
> > >> > are posted; people can read the Web archives; and list members 
> > >> > can (rightly or wrongly) forward the messages to others.
> > >> > >
> > >> >
> > >> >
> > >> >--
> > >> >Lawrence Solum
> > >> >http://home.sandiego.edu/~lsolum/
> > >> >
> > >> >Until June 1, 2005:
> > >> >University of San Diego School of Law lsolum at sandiego.edu
> > >> >(619) 260-8876
> > >> >
> > >> >After June 1, 2005
> > >> >John E. Cribbet Professor of Law University of Illinois College 
> > >> >of Law lsolum at gmail.com 
> > >> >_______________________________________________
> > >> >To post, send message to Conlawprof at lists.ucla.edu To subscribe,

> > >> >unsubscribe, change options, or get password, see 
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> > >> >
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> >
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> > >> >can
>
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> > >>
> > >> >or
> > >> >wrongly) forward the messages to others.
> > >>
> > >>_______________________________________________
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> > >>unsubscribe, change options, or get password, see 
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> > >>
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> >_______________________________________________
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