"For the general intersts of the Union"
Mark.Scarberry at pepperdine.edu
Wed Oct 12 14:34:38 PDT 2005
Whether or not the unamended text of the Constitution could be read as
allowing the federal Congress to legislate "for the general interests of the
Union," isn't such general power negated by the Tenth Amendment?
The omission of language that had been in the Articles of Incorporation (the
"expressly delegated" limitation) cannot delegate powers to the United
States for purposes of the Tenth Amendment, can it?
Does it matter that the Tenth Amendment does not limit federal power to that
which is "expressly delegated ... by the Constitution" but rather simply to
that which is "delegated ... by the Constitution"?
Mark S. Scarberry
Pepperdine University School of Law
From: Calvin Johnson [mailto:CJohnson at law.utexas.edu]
Sent: Wednesday, October 12, 2005 2:15 PM
To: conlawprof at lists.ucla.edu
Subject: FW: "For the general intersts of the Union"
To: 'isomin at gmu.edu'
Subject: RE: "For the general intersts of the Union"
Indeed the Federalists talked out of both sides of their mouth, both
agreeing that the "expressly delegated" had been deleted to preserve the
federal passport and also, to quote Pinckney, saying that the Congress
had only the powers "expressly delegated" to it. Pinckney lied, but
then Madison spun in the same direction.
Are we a people of the text? Do we believe that words count?
Then the deletion of "expressly delegated" counts. Jefferson's first
reaction reading the document was that ignoring the deletion was mere
"gratis dictim" -- all right for the audience but not to be taken
seriously. Given how badly he later needed the doctine, his reaction is
both ironic and right. 3 million people participated in the
ratification debate, each with their personal idiocyncratic take on what
was important. We tend to look at much of what they said as missing the
point -- the Constitution was not for instance proposed to allow the
Pope to be Presdient, to establish the Roman Catholic Church, and to
have the army build Rome, notwithstanding in North Carolina that was
apparently what it was thought to mean. We can make sense of the chaos
only by letting the writing trump. It is often said the Constitution
is to be read as a Protestant document: the text counts -- rather than a
Catholic one -- where the priesthood gets to interpret. We get to
something tighter than "legislate for the common intersts" only from the
priesthood. There is no expressly delegated limitation in the
Constitution because they took it out.
How are we to read the writing? Well we know what they meant to
say: "legislate for the common interests of the Union" Once you know
what they meant to say and know that the sciveners had authority only to
write down the Resolutions, then is it is reasonable to see that they
said exactly what they meant: ie legislate for the common interests of
the Union. Which is the source of the general power that Randolph (on
the Committee of Detail) and well connected George Mason of later
University fame cited when they voted against the Constitution. There
are limits on the federal government but it is found not in 18 pieces of
trivia but rather the more general power to provide for the common
defense and general welfare.
The commerce clause by contrast is trivia, covering only awful
mercantilists programs that no body turned out to want, even once they
had to authority.
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law The University of Texas
School of Law
727 E. Dean Keeton (26th) St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
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