Originally published September 1, 2012
As soon as there was a Constitution, fights about its meaning began. In 1792 Fisher Ames, representing the first district of Massachusetts in the first U.S. House of Representatives, complained about a tendency of Congress:
“We hear, incessantly, from the old foes of the Constitution, ‘this is unconstitutional, and that is;’ and indeed, what is not? . . . If the Constitution is what they affect to think it, their former opposition to such a nonentity was improper. I wish they would administer it a little more in conformity to their first creed.”
Ames was ridiculing the minority in Congress for having abandoned a position he considered idiotic—they’d claimed during the ratification debates that the Constitution made Congress a tyranny—for an equally idiotic contrary: now they claimed the same document limited federal power so strictly that Congress couldn’t do anything. “Antis,” Ames called them, short for “antifederalists.” He saw them as a “party of ‘no,’” to use a current phrase, and their constant appeals to constitutional restraints as spurious. It was rank antifederalism by other means.
Some students of the period wouldn’t agree with Ames. The Constitution, amended after ratification, wasn’t, in fact, the same document that the antifederalists had feared was tyrannical. Yet while the amendments can seem paramount to us—they’re what many people today seem to mean when they refer to the Constitution—the minority in the first Congress rarely resorted to them. James Madison, chief author of the Bill of Rights, was at the time still committed to federal sovereignty, and where antifederalists had hoped for amendments preserving state rights, Madison was careful to focus the amendments, as much as he could, on individual rights instead.
So to oppose federal activism, the minority in the first Congress looked to the Constitution’s main body. Nowhere, they said, did it empower the Congress to pursue big projects that the majority, associated with President Washington’s administration, believed were critical to establishing American nationhood. In the debate over forming a central bank—a favorite project of the first treasury secretary, Alexander Hamilton—Madison himself began questioning the powerful, wide-ranging national authority that he, Hamilton, and others had recently tried to build into the federal government. Soon Madison was leading his former antifederalist opponents in condemning the bank as unconstitutional. Congress’s power to create one, he said, is not enumerated in the document.
Hamilton, speaking in Congress through Ames and other allies, responded with an argument enshrined today as an elemental principle in an elemental dispute. While there is no explicit provision in the Constitution empowering Congress to charter a bank, the powers explicitly granted—in this case to borrow, tax, and coin money—naturally imply other, un-enumerated powers “necessary and proper” to exercising the enumerated ones. Otherwise government would be not limited but paralyzed, Hamilton believed, and, absurdly so, by government itself.
Read the rest at the Boston Review