If originalism entails the problem Davies raises, it also has at least one more. Original intent, meaning, or understanding is inevitably multiple. John L. O’Sullivan, former editor of the Democratic Review, noticed this in 1862. The Constitution, he wrote, was America’s “ark of the covenant,” but “no man could ever exactly say what the Constitution was.” Its “elastic generalities of phrase” hid the deep divide “between the ‘Consolidation’ and the ‘State Rights’ parties in the Convention.. . .” Constitutional interpretation had been “twofold from the outset . . . Hamiltonian and Jeffersonian, or indeed Northern and Southern.” There was “not one . . . universally recognised Constitution, but two, widely different, and indeed conflicting” (my italics).

But what of our first constitution, the Articles of Confederation? For a time, they suited most of the people and the states. On the other hand, a vocal group in Congress was violently unhappy over the Articles’ failure to establish effective federal (national) power. Joseph Jones of Virginia, newly arrived in mid-1780, complained, “This Body never had or at least in few instances have exercised powers adequate to the purposes of war. . . .” Charles Thomson lamented in 1784, “A government without a visible head must appear a strange phenomenon to European politicians. . . .”

With new members, a dangerous optical malady often set in—“Continental Vision.” Writing to James Madison on February 20, 1784, Thomas Jefferson described the process: “[Young statesmen learn to] see the affairs of the Confederacy from a high ground; they learn the importance of the Union & befriend federal measures when they return.” Continental vision and “insufficient” power: Here was a dilemma, one that American nationalists—James Wilson, Madison, Alexander Hamilton, Robert Morris, and many others—determined to resolve. In their view, the country needed a mercantilist political economy, a standing army, public debt, and effective central taxation—things structurally and systematically interrelated. Nationalists wanted central power, as much of it as possible. Under the Confederation they made some interesting attempts to get it. We may begin with war powers.

Invoking vague war powers, early American nationalists urged that Congress ought to have certain powers and, therefore, did or “must” have them, neatly getting an “is” from an “ought.” Big on assertion, Congress spent the war complaining of its lack of real power, including power to tax. Yet mysteriously, Americans defeated Britain without anyone’s giving Congress many powers it craved or claimed. What actually happened?

Acting Without Authority

In practice, Congress coordinated revolutionary activity in the 13 incipient states and conducted diplomatic activity in their (plural) name. In so doing, Congress constantly recommended specific actions to the states, relying on them to carry the measures out. Before ratification of the Articles (1781), Congress often undertook measures for which it could show no obvious authority whatsoever, including the debt it created, its adoption of a European-style code of military “justice” for the Continental Army, and its creation of that army itself. Congress could only appeal to the wartime emergency, iron necessity, “public safety,” and the like. Under the Articles, nationalists complained endlessly of the powers Congress had “lost” with ratification. They referred of course to earlier congressional claims of inherent power—those being “proven” by the fact that Americans in their states had been good enough to cooperate. The price of following Congress’s advice and recommendations was to be told later that one had followed orders and obeyed commands.

American historians largely agree with the original claimants. Legal historian Edward S. Corwin was a case in point. Congress had, he admits, “no real governing power.” The states, on Congress’s recommendations, seized property, repressed Tories, suspended habeas corpus, and undertook “measure after measure that entrenched upon the normal life of the community drastically.” Regrouping, he concludes: “The fact, however, that this legislation came from the state legislatures whereas the war power was attributed to the United States in the Continental Congress served to obscure the fact that the former was really an outgrowth of the latter.”

This calls to mind the paradox, which I have noted previously (“On Misplaced Concreteness in Social Theory,” The Freeman, May 2006), whereby actual successful social action tends to be denounced as a dreadful evil or social problem. In the case at hand, cooperation serves to allocate authority away from those who acted. Whether that authority really entailed a spectral “war power” need not detain us. Whatever that last abstraction did for Congress from 1776 to 1781, and even under the Articles, 1781–1783, it did very little for it after 1783 without the war. Nationalists saw this problem coming. Late in the war, Gouverneur Morris hoped for “a Continuance of the War, which will convince people of the necessity of Obedience to common Counsels. . . .”

In the hunt for added congressional powers, nationalists employed deductions from International Law and pleaded Machiavellian necessities and moments. According to Merrill Jensen, they sought “to establish precedents [from which] they could argue the sovereignty of Congress.” Jensen stresses the interest of certain land companies in having their titles confirmed by the higher “government,” as well as the public creditors’ desire to have depreciated paper claims redeemed at somewhere near face value.

Hamilton hoped Congress would simply assert “undefined Powers” and see what they got away with. They should “assume Congress had once had such powers.” Boldness was needed to build a governing coalition of army, public creditors, and other nationalists. Madison was more indirect. In a Report to Congress in March 1781, he, James Duane, and James Varnum asserted a “general and implied power. . . to carry into effect all the Articles of the said Confederation against any of the States” but could find “no determinate and particular provision.” They therefore urged amendment of the Articles so that Congress could “employ the force of the United States” against states failing to meet funding requisitions.

After Rhode Island rejected an amendment to create a federal impost, Hamilton, Madison, and Thomas FitzSimons drew up a lengthy Congressional Reply in December 1782, calling the impost “a measure of necessity.” Congress, they urged, had “an indefinite power of prescribing the quantity of money to be raised.” This brought the impost “within the spirit of the Confederation.” Further, Congress, “empowered to borrow money,” had power “by implication, to concert the means necessary to accomplish that end.” Arguing against Rhode Island’s position, Robert Morris—federal financial czar—wrote on October 24, 1782, “[I]f a thing be neither wrong nor forbidden it must be admissible [and] if complied with, will by that very compliance become constitutional.” Now, mere acquiescence was “consent,” and consent bred legality. Meanwhile, having thought the thing over, other states had “rescinded” their earlier approval of the impost amendment.

Nationalist aspirations for revenue did not lessen with time. In a speech on January 28, 1783, Madison found “general revenue” to be “within the spirit of the Confederation.” Hamilton agreed, but un-bagged the cat by saying, “[I]t was expedient to introduce the influence of officers deriving their emolument from . . . Congress.” Madison often suggested naval blockades of offending states. He seems also to have spotted an implied power to coerce the states, even without an amendment. (Thirty years later, as president, Madison tried to coerce Britain and France with an embargo, but got the War of 1812 instead.) Even Governor George Clinton of New York spied an implied “Power of compelling the several States to their Duty and thereby enabling the Confederacy to expel the common Enemy.”

But Congress could not make the states ratify an amendment for a modest impost, much less one for their own coercion or blockade. For now, big notions drawn from Machiavelli, Vattel, and Pufendorf were of no avail. They did serve, however, in building both nationalist ideology and a theory of the union, and they yet serve historians who want philosophical foundations for the practical—even cynical—system the nationalists put over a few years later.

Another possible way out was the treaty power duly inscribed in the ninth Article of Confederation. In a centralizing mood, Jefferson himself, writing to James Monroe from Paris on June 17, 1785, advocated using the treaty power “to take the commerce of the states out of the hands of the states” and give it to Congress, which under the Articles had “no original and inherent power” over the subject. But Jefferson did not try to find implied powers in the Articles, nor did he deduce powers from some congressional sovereignty that “necessarily” arose under international law.

The treaty-power dodge reappeared much later, fueling the Old Right’s Bricker Amendment movement of the early 1950s. Senator John Bricker (R-Ohio) and his supporters wanted to keep Congress and the president from aggrandizing themselves under the vaguely worded treaty clause of the present constitution. They meant for their amendment, which failed in the Senate by one vote in February 1954, to meet the problem.

Utilizing Public Debt

Nationalists focused more and more on the public debt. Congress quit issuing credit money in late 1779. Thereafter, as Madison wrote to Jefferson on May 6, 1780, Congress became “as dependent on the States as the King of England is on the Parliament.” Nationalists saw this situation as completely improper. And so, Lance Banning observes, they “proposed to use the national debt to create a single nation—or at least an integrated national elite—where none existed in 1783.”

E. James Ferguson writes, “The Union was a league of states rather than a national system because Congress lacked the power of taxation. This was not an oversight.” Further, the federal debt itself was “inconsistent” with such a union. Jack N. Rakove adds, “Congress lacked the effective power or, once the Articles were ratified, the constitutional right either to levy taxes on its own authority, or to compel the states to obey its recommendations. It is certainly true that the states would never have ratified the Articles had they contained such provisions. . . .”

Nationalists feared the states would pay off the debt. Like the English Whigs in 1649, they needed the debt as the “cement” of union, as Hamilton called it. The debt was needed, in Rakove’s words, “to justify endowing Congress with independent revenues.” If revenue were found, public creditors and the underpaid officer class would rally to the cause of national power. All these advocates well understood the inflationary potential of consolidated public debt in the hands of fractional-reserve bankers. The economy would boom under their own profitable management.

Nationalists conducted an unrestrained campaign against the Confederation’s limits on power. “Water would not boil” due to the Articles. More important, nationalists discovered The People. Within doors, Federalists habitually denounced the people as a great rabble, the source of danger, wild enthusiasms, paper money, and attacks on property. Now they hastened to embrace John Locke’s empty marker of popular sovereignty to justify a takeover in the name of the people. Then they hustled the people off stage so the new machine “could go of itself.”

Social-Contract Theory

Anyone who reads Madison’s enormous journal of the Constitutional Convention will find the delegates arguing a mass of undigested social-contract theory big enough to sicken a hog. Here is an economical explanation: ambitious men with political, economic, and ideological motives wanted a central government with vague (therefore large) powers. They had, doubtlessly, a certain kind of public spirit. The system they created unfolded its inherent defects over time. To provide cover for their more specific goals—power, profit, prosperity, fisheries, security for slavery, land grabbing, glory, fame, good government—the framers issued great clouds of political “science” and theory that have confused Americans ever since. Madison was the outstanding mystifier, but there were others. Nationalists artfully decried the governments of the states while championing the Sovereign People, neatly dodging the question of who the people were and whether there were 13 peoples or one.

The constitutional deed and its defending rationales do not seem much grander than the origins of many other states. But as Jesse Lienesch has written, the founders succeeded in presenting themselves as demigods who saved the nation. It is a point of American orthodoxy to believe them. Charles Beard and J. Allen Smith, seconded by Albert Jay Nock, got much flak for recognizing that the Federalists had mixed motives and self-serving goals.

To win ratification, American nationalists, rechristened as “Federalists,” sold the new Constitution as a document involving “limited” and “enumerated” powers. On this reading, any power not obviously granted was not granted and the new outfit would not have it. Having cornered themselves verbally, Federalists showed their original understanding in the first Congress by enacting all manner of laws directly in conflict with their assurances to the ratifying conventions. Senator William Maclay of Pennsylvania especially noted the Judiciary Act, Hamilton’s funding system, economic coercion to force Rhode Island to ratify the Constitution, the War Department, a standing army—and federal consolidation generally. (See Maclay’s Journal at http://tinyurl.com/3ch2nm.) Seeing this, the Federalists’ opponents, with a different original understanding, argued for theirs as “Republicans” led by Jefferson, John Taylor, and others. They meant to hold the former promising parties to their pledges. Historian Garry Wills affirms that the ratifiers were somewhat swindled, but holds this to be a universal blessing that makes modern American governance possible.

And for all their high-minded talk about The People, popular consent, and so on, nationalists did not rule out violence. Benjamin Rush wrote Richard Price on June 2, 1787, that, if needed, “force will not be wanting,” since the wealthy and military classes wanted a new government. As Jensen writes, “It was power, not powers, that they wanted.”

Could the nationalizers have gotten their way by ingeniously stretching the Articles? One possible way would have been to filch the states’ powers and reassemble them into a collective power. Nationalists might have contended that a majority of congressional delegations—each delegation embodying, fully and immediately, its state’s separate sovereign powers—could, in concert, do any old thing, outside the Articles, that came to mind. Similar ideas had yielded results before the Articles came into force in 1781.

The nationalists were not the sort to be denied power. They might have made interesting inroads by discovering “indefinite” or “implied” powers, or by invoking the Articles’ “spirit.” Patiently accumulating “precedents,” they could cash them in, down the road, as grounded on powers that had always “been there.” But nationalists were not as patient as, say, the Supreme Court.

And certain structural advantages still remained to the states and the people(s). Their key advantage involved taxation. Congress had to ask the states for its money. It still seems a good arrangement.

Here our sub-theme—originalism—returns. It appears that original contestants contested many constitutional “meanings” at the very beginning. On this view, any simple originalism means clinging to original mistakes. The framers’ opinions were certainly original; how or whether they dictate to us today through the ether is another matter.

Works Used

1. Lance Banning, “James Madison and the Nationalists, 1780–1783,” William & Mary Quarterly, April 1983.
2. Edward S. Corwin, The President: Office and Powers, New York, 1957.
3. Thomas Y. Davies, “Correcting Search and Seizure History,” Mississippi Law Journal, vol. 77, 2007.
4. Jonathan Elliot, Debates in the State Conventions on the Adoption of the Federal Constitution, I, 1973 [1830]).
5. E. James Ferguson, “The Nationalists of 1781–1783 and the Economic Interpretation of the Constitution,” Journal of American History, September 1969.
6. E. James Ferguson, The Power of the Purse, Chapel Hill, N.C., 1961.
7. Paul Leicester Ford, ed., The Works of Thomas Jefferson, IV, New York, 1904.
8. Merrill Jensen, “The Idea of a National Government during the American Revolution,” Political Science Quarterly, September 1943.
9. Jesse Lienesch, “The Constitutional Tradition: History, Political Action, and Progress in American Political Thought, 1787–1793,” Journal of Politics, February 1980.
10. William Maclay, The Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791, New York, 1965.
11. Roger McBride, Treaties versus the Constitution, New York, 1955.
12. John L. O’Sullivan, Union, Disunion, and Reunion: A Letter to General Franklin Pierce, London, 1862.
13. Jack N. Rakove, The Beginnings of National Politics, New York, 1979.
14. Murray Rothbard, Conceived in Liberty, IV, New Rochelle, N.Y., 1979.

We might think those words—or words to the same effect—are in the U.S. Constitution. But they are not. They are from Article II of the Articles of Confederation, America’s first constitution. They could have been placed in the U.S. Constitution but were deliberately left out in 1787.

After the Constitution was ratified, something like Article II was added to the Constitution as the Tenth Amendment. Unfortunately it is like Article II in the same sense that a whale is like a fish—superficially.

The Tenth Amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The most significant difference is that Article II qualifies the word delegated with expressly. The Tenth Amendment does not. The difference was no oversight. This suggests that while the Articles of Confederation was a document of express, enumerated congressional powers, the Constitution, contrary to widespread belief, was not.

Professor Calvin H. Johnson of the University of Texas Law School published a paper in 2006 that sheds light on this subject. “The Dubious Enumerated Power Doctrine” presents formidable evidence that the framers had no intention of limiting the national government’s powers to the 16 items listed in Article I, Section 8, of the Constitution.

“In carrying over the Articles’ wording and structure, they removed old Article II’s limitation that Congress would have only powers ‘expressly delegated’ to it,” Johnson writes. “When challenged about the removal, the Framers explained that the expressly delegated limitation had proved ‘destructive to the Union’. . . . Proponents of the Constitution defended the deletion of ‘expressly’ through to the passage of the Tenth Amendment. That history implies that not everything about federal power needs to be written down.”

The Constitutional Convention operated on the assumption that more, not fewer, powers were needed for the national government than were allowed under the Articles. Johnson quotes some of the framers to indicate this attitude. “The evils suffered and feared from weakness in Government have turned the attention more toward the means of strengthening the [government] than of narrowing [it],” Madison said to Thomas Jefferson.

When the convention began its work the delegates passed resolutions to guide the committees that were drafting particular sections of the document. Johnson writes that one such binding resolution specified that the new government would have every power enumerated in the Articles and an additional power (quoting the resolution): “to legislate in all Cases for the general Interests of the Union.”

This is contrary to the common view that Article I, Section 8, of the Constitution necessarily exhausts the national government’s powers. That view is undermined by several inconvenient facts. For example, the first clause of Article I, Section 8, states, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. . . .” That’s a hefty grant of power that does not appear to be further restricted by any subsequent language. (Jefferson and Madison disagreed. See Federalist 41 by Madison, keeping in mind that the Federalist Papers were essentially ad copy for the Constitution and against the Anti-federalist opposition.) The 16 specific powers that follow don’t appear to be limits on the taxation clause but rather coequal provisions.

But then why include a list of powers? Johnson writes: “Reading the Constitution as giving a general power to provide for the general welfare means that the enumerated powers of clauses 2 through 17 are illustrative of what Congress may do within an appropriately national sphere, but are not exhaustive.”

In other words, Congress can’t do whatever it wants. It can only act on behalf of the common defense and general welfare. Thus in the eyes of the framers, the government would be limited, but not nearly as limited as today’s constitutionalists believe. The view among the framers was that Congress’s jurisdiction covered all matters national in scope, leaving local matters to the states. But, as Johnson writes, “both Madison and Hamilton argued that the division between the federal and state governments was a legislative or political question that would be set in the future by competition between those governments for the loyalty of the people.”

Implied Powers

We know that the Constitution must have contained implied powers from the beginning. Article I, Section 9, expressly prohibits Congress from doing certain things, such as passing ex post facto laws and bills of attainder, granting titles of nobility, and interfering with the slave trade until 1808. Why would such prohibitions have been thought necessary if Congress could exercise only the enumerated powers? Another example: The Fifth Amendment limits the power of eminent domain, but the Constitution itself does not enumerate any power of eminent domain. It must be implied.

Johnson’s argument would not be news to the Anti-federalists, that group of early Americans who feared the proposed Constitution would create an imperial national government with virtually unlimited power. (It should be noted that southern Anti-federalists like Patrick Henry objected to an expanded national government in part because they feared the taxing power might be used to free their slaves. Thus was a good cause, decentralization of power, perhaps permanently stained by a link to the abomination of slavery. Samuel Johnson had it right, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”) When advocates of the proposed Constitution advertised the document as containing express, enumerated powers, the Anti-federalists and fellow travelers such as Thomas Jefferson scoffed.

For example, James Wilson said: “The congressional authority is to be collected, not from tacit implication but from the positive grant expressed in the [Constitution]. . . . [E]verything which is not given [to the national government], is reserved [to the states].”

To which Jefferson replied: “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.”

How the Constitution was intended to be interpreted and how it was in fact interpreted under the pressure of public opinion were initially two different things. As historian and economist Jeffrey Rogers Hummel explains, “To oversimplify only slightly, the Federalists got their Constitution, but the Anti-Federalists determined how it would be interpreted.” For a while anyway.

Calvin Johnson is happy the Constitution has implied powers. No libertarian would be. But we must separate what the Constitution appears to say and how we evaluate it, and resist the temptation to let our political-moral views warp our reading. As Lysander Spooner in 1870 wrote, the Constitution “has either authorized such a government as we have had, or has been powerless to prevent it.” Liberty’s champions have to come to terms with that logic.