This is the second of a three-part series examining the Virginia Ratifying Convention that took place between June 2-27, 1788.
As the convention progressed, the discussion turned to freedom of religion, a concept which had played a pivotal role in the development of the American colonies and their intense fervor for independence from one another.
Just as the Constitution delegated Congress zero authority to censor the press, it provided for no authority to restrict religion. Federalists insisted this was the case.
Again, for Patrick Henry it wasn’t enough to take someone’s word for it. Nor could he rely on “constructive, logical reasoning” which allowed well-educated men to reach this conclusion. It had to be painfully obvious to the most uneducated men these rights were secured.
When we see men of such talents and learning compelled to use their utmost abilities to convince themselves that there is no danger (to religious freedom), is it not sufficient to make us tremble? Is it not sufficient to fill the minds of the ignorant part of men with fear? If gentlemen believe that the apprehensions of men will be quieted, they are mistaken, since our best informed men are in doubt with respect to the security of our rights. [Emphasis added]
James Madison’s answer put it plainly and directly as possible:
There is not a shadow of right in the general (federal) government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.
Later in the convention, Madison also explained how Article 1 Section 6 delegated certain powers to the federal government because “it was thought improper to leave it to the state legislatures.”
Again, we see the same principle reiterated; all federal powers originated in the states. Federal authority had to be specifically delegated to it or else it didn’t have it.
Even then, not all powers delegated the federal government were made exclusive to them, for instance arming militia. George Mason believed giving the feds this power would lead to the “annihilation of the state governments” by calling them up at any time to enforce whatever law they decreed.
On June 14, Madison said the authority to the federal government in this area was “concurrent, and not exclusive.” The states were not giving up their authority to call up militia just because they had delegated similar authority to the feds.
Here too John Marshall offered his perspective.
“The state governments did not derive their powers from the general government, but each government derived its powers from the people,” he said.
Because of this “the state still had a power “unless there be something in this Constitution that takes it away.”
For Continental purposes Congress may call forth the militia, — as to suppress insurrections and repel invasions. But the power given to the states by the people is not taken away; for the Constitution does not say so. In the Confederation Congress had this power; but the state legislatures had it also.
The truth is, that when power is given to the general legislature, if it was in the state legislature before, both shall exercise it; unless there be an incompatibility in the exercise by one to that by the other, or negative words precluding the state governments from it. But there are no negative words here. It rests, therefore, with the states. To me it appears, then, unquestionable that the state governments can call forth the militia, in case the Constitution should be adopted, in the same manner as they could have done before its adoption. [Emphasis added]
This is the spirit of the Tenth Amendment neatly described. If a power isn’t prohibited to the states by the Constitution, it is reserved to the states or the people – many times, even if the federal government has been delegated the same powers.
Necessary and Proper
Attacking the necessary and proper clause, Patrick Henry said it would give Congress “a right to pass any law that may facilitate the execution of their acts.”
But the clause was a mere “superfluity” that “gives no supplementary power,” James Madison said. “It only enables them to execute the delegated powers.”
“If the delegation of their powers be safe, no possible inconvenience can arise from this clause,” he added. “It is at most but explanatory.”
Patrick Henry wasn’t swayed. If Congress were vested with this power, the dangers he had described might happen.
“For that Congress would not be confined to the enumerated powers,” he said. With the clause they “could make any laws which they might think necessary to execute the powers of any department or officer of the government.”
Once more, George Mason hammered away the need for a clause “with respect to all powers which are not granted, that they are retained by the states.”
“Otherwise, the power of providing for the general welfare may be perverted to its destruction,” he said. “There was a clause in the Confederation reserving to the states respectively every power, jurisdiction, and right, not expressly delegated to the United States.”
Without it, the necessary and proper clause will go “to anything our rulers may think proper Unless there be some express declaration that everything not given is retained, it will be carried to any power Congress may please.”
At this point George Nicholas affirmed the right of the people to nullify unconstitutional federal acts.
“If they(the federal government) exceed these powers…the people will have a right to declare it void,” he said.
The discussion continued with Mason insisting that unless explicit restrictions on federal authority were imposed, “many valuable and important rights would be concluded to be given up by implication.”
If it was necessary for Virginia to have a bill of rights with its constitution, why would it be any different with a national constitution, he argued.
The person taking meeting minutes recorded him as saying “Unless there was a bill of rights, implication might swallow up all our rights.”
At that point Patrick Henry pulled no punches, saying “the necessity of a bill of rights appears to me to be greater in this government than ever it was in any government before.”
“All nations have adopted this construction; that all rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers, as necessarily inseparable from the delegated powers,” he said.
He painted a dark picture of what would happen if they failed to do so.
If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw; government that has abandoned all its powers, the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights — without check, limitation, or control…A bill of rights may be summed up in a few words. What do they tell us? That our rights are reserved. Why not say so? Is it because it will consume too much paper? [Emphasis added}
While men like George Nicholas believed the clause was unnecessary, delegate William Grayson pointed out that the Articles of Confederation had contained a similar clause upholding the rights of the states not delegated to the confederation. Why include it if it was not necessary, he asked.
However, state governments were different from national governments, said George Nicholas. The people directly delegated their authority to the states, whereas they indirectly delegated authority to the national government through the states. The federal government’s “certain special powers were delegated for certain purposes.”
Besides, a bill of rights was “but a paper check” that has been violated in the past, he added. Better to have a government “with special powers, without any express exceptions, is better than a government with general powers and special exceptions.”
This debate carried on into June 17, where Madison repeated his assertion that the necessary and proper clause “only extended to the enumerated powers” and “should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause.”
As stated before, none of the text implied any powers. All powers had to be specifically laid out.
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