Is it Possible to Restore Constitutionalism?

by Gary S. Lawson, Heritage Foundation

When the Constitution was sent to the states for ratification in 1787, many citizens worried that the new national government proposed by the document was a Leviathan in waiting. During the crucial New York ratification debate, James Madison, writing as Publius, sought to allay these fears in the 45th Federalist Paper by emphasizing that adoption of the Constitution would create a government of enumerated, and therefore strictly limited, powers. Madison said: “The powers delegated by the proposed Constitution to the federal government are few and defined… [and] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce….”[1] Federal tax collectors, Madison assured everyone, “will be principally on the seacoast, and not very numerous.”[2] Exactly six months after publication of this essay, New York became the 11th state to ratify the Constitution.

Once the national government was up and running, disputes naturally arose about the proper scope of its “few and defined” powers and about the proper institutional form for the exercise of those powers. It is helpful to examine just a few of those early disputes to get a sense of the frontiers of constitutional argument in the Founding era–that is, to gauge the kinds of claims regarding federal power that generated serious discussion. Those examples provide an interesting basis for comparison with modern law.

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