The modern debate over the meaning of the Constitution often devolves into a dueling opinions between legal experts and judges. But the true meaning of the document and the kind of government it created isn’t found in Supreme Court decrees or through interpretation based on opinion.
Much like an author’s diary or notes on a novel offers the most relevant commentary on the meaning of their book, the best way to learn what the meaning of the Constitution is to find out what those who approved it had to say. For that, we must return to the state ratifying conventions where the Constitution was discussed and debated and clarified before delegates voted to approve it.
While the essays found in the Federalist Papers provide an intellectual argument in favor of the Constitution, it was at the conventions its supporters had to confront the specific concerns of skeptics and opponents.
Of all them all, the Virginia Ratifying Convention held June 2-27, 1788 may offer the best insight into what kind of government the Constitution created.
At the convention, many aspects of the Constitution, such as the power of taxation, were thoroughly discussed and fervently debated. However, those who helped craft the Constitution, as well as its supporters, also made it unmistakably clear if approved it would set up a limited government with only certain specific powers delegated to it – powers that could be taken back if desired.
It is this part of the convention we’ll be focusing on.
To grasp the significance of what was said during the Virginia Ratifying Convention, it is critical to first understand the importance of the people there. Among the delegates were James Madison, Edmund Randolph, John Marshall, Patrick Henry and George Mason. Madison is commonly known as the Father of the Constitution for his role in crafting the document. Randolph was the then-governor of Virginia and the first U.S. attorney general, while Marshall was the fourth chief justice of the U.S. Supreme Court.
Randolph’s statements in particular are notable because he was one of the few people who refused to sign the U.S. Constitution in Philadelphia a year earlier, yet he later changed his mind and voted in favor of it at the Virginia Ratifying Convention.
Both Patrick Henry and George Mason were anti-federalists, intense skeptics of the new Constitution. Yet they were also fierce advocates for the adoption of a bill of rights that would ensure the protection of rights recognized by the state constitutions. They also wanted numerous amendments to the U.S. Constitution as a condition of ratification. Mason earned the title “Father of the Bill of Rights” for his efforts to secure much of what later became the first amendments to the Constitution, including the Tenth Amendment.
Debate over the powers of the proposed national government dominated the Virginia convention.
Early in the convention, delegates raised concern about giving Congress the authority to alter the time, places and manner of elections for U.S. senators and representatives under Article 1 Section. 4. The worry by some was that they would use this power to inappropriately influence elections.
In response to these concerns, delegate George Nicholas made the following remarks (note: all bold emphasis added)
It is absurd to think that Congress will exert this power, or change the time, place, and manner established by the states, if the states will regulate them properly, or so as not to defeat the purposes of the Union. It is urged that the state legislature ought to be fully and exclusively possessed of this power. Were this the case, it might certainly defeat the government. As the powers vested by this plan in Congress are taken from the state legislatures, they would be prompted to throw every obstacle in the way of the general government. It was then necessary that Congress should have this power.
Another strong argument for the necessity of this power is, that, if it was left solely to the states,
Congress will superintend the great national interests of the Union. Local concerns are left to the state legislatures.
Nicholas’ statement reveals several critical facts about the Constitution that would be repeated throughout the convention:
- It was delegating specific powers to the federal government, and no more.
- The powers delegated to the federal government were not general, but specific.
- The new government’s powers were limited to handling external issues; internal issues and the powers to deal with them were to be left to the states.
Nicholas later reiterated this point while referring to the House of Representatives:
The state legislatures, also, will be a powerful check on them: every new power given to Congress is taken from the state legislatures; they will be, therefore, very watchful over them; for, should they exercise any power not vested in them, it will be a usurpation of the rights of the different state legislatures, who would sound the alarm to the people. Upon such an appeal from the states to the people, nothing but the propriety of their conduct would insure the Congress any chance of success.
Again, the federal government’s powers would come from the states. They would not come out of thin air. Nor was the federal government a sovereign entity. It was a national government using powers delegated to it by the states. If the feds had a power it had to be specifically stated.
Anti-federalist George Mason was not convinced this was how things would actually work out. Because a national government would be more powerful than the state governments “the latter must give way to the former,” he said.
He elaborated further:
I hope that a government may be framed which may suit us, by drawing a line between the general and state governments, and prevent that dangerous clashing of interest and power, which must, as it now stands, terminate in the destruction of one or the other. When we come to the judiciary, we shall be more convinced that this government will terminate in the annihilation of the state governments: the question then will be, whether a consolidated government can preserve the freedom and secure the rights of the people.
In response, James Madison stated “that the general limitation of their (federal) powers, and the general watchfulness of the states, will be a sufficient guard.”
The phrase “general watchfulness of the states” implied the states have ultimate authority over the federal government. The powers it exercises are only on loan from the states. Thus, it would be a duty of the “watchful” states to ensure the new government did not go beyond its delegated authority.
This is the concept of nullification neatly summarized a full decade before Madison would pen the Virginia Resolutions of 1798.
However, not all the sections of the Constitution were as clear in language as others. One of the provisions Patrick Henry attacked was the necessary and proper clause, which he saw as giving Congress carte blanche authority and declaring its laws “paramount to the laws and constitutions of the states,” he warned on June 5.
“This, sir, is my great objection to the Constitution, that there is no true responsibility, and that the preservation of our liberty depends on the single chance of men being virtuous enough to make laws to punish themselves,” he said further.
Except this clause actually didn’t give them any unspecified authority, said Madison the following day.
“The powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction,” he said.
Another prominent delegate at the Convention was Richard Henry Lee. A signer of the Articles of Confederation, his motion for separation from Great Britain at the Second Continental Congress in 1776 led to the Declaration of Independence.
Lee argued that a simple question could determine Congress’ powers.
“It is plain on the side of the governed: Is it enumerated in the Constitution?” he stated on June 9. “If it be, it is legal and just. It is otherwise arbitrary and unconstitutional.”
Lee was recorded as arguing further:
Under the state governments, the people reserved to themselves certain enumerated rights, and that the rest were vested in their rulers; that, consequently, the powers reserved to the people were but an inconsiderable exception from what were given to their rulers; but that, in the federal government, the rulers of the people were vested with certain defined powers, and that what were not delegated to those rulers were retained by the people.
The consequence of this, he said, was that the limited powers were only an exception to those which rested in the people, and that they knew what they had given up, and could be in no danger.
There would be no hidden powers in the Constitution. It would not be a “living, breathing” document that could be changed by the whims of those in power. But this couldn’t be more false. The document was created as unambiguous and unchanging outside of the amendment process. Any power it had could be determined simply by reading it.
A common misinterpretation of the Constitution and the subsequent amendments is that unless a right is expressly stated it does not exist. Likewise, if the federal government is not expressly prohibited from doing something it has the authority to do so. Or, the power could be “implied” in certain clauses.
It’s an interpretation anti-federalists at the convention feared the federal government would adopt one day. One delegate critical of the Constitution noted the lack of expressed protections for freedom of the press that could be found in state constitutions like Virginia’s. What would prevent Congress from censoring newspapers?
In response, Edmund Randolph explicitly denounced such an interpretation of the Constitution as backwards.
“He (another delegate) says that every power is given to the general government that is not reserved to the states,” Randolph said June 10. “Pardon me if I say the reverse of the proposition is true. I defy anyone to prove the contrary. Every power not given it by this system is left with the states. This being the principle, from what part of the Constitution can the liberty of the press be said to be in danger?”
Randolph then read Article 1 Section 8 listing congressional powers and challenged the delegates to “examine every one, and tell me if the most exalted genius can prove that the liberty of the press is in danger.”
Once more, this failed to placate George Mason. No matter what reassurances they were given, a bill of rights was still needed, he argued.
George Nicholas warned this flipped the meaning of the Constitution. It was a document listing limited government powers, he said. A document with the limited rights of the people was the European approach.
In England, in all disputes between the king and people, recurrence is had to the enumerated rights of the people, to determine. Are the rights in dispute secured? Are they included in Magna Charta, Bill of Rights.? If not, they are, generally speaking, within the king’s prerogative.
In disputes between Congress and the people, the reverse of the proposition holds. Is the disputed right enumerated? If not, Congress cannot meddle with it. Which is the most safe? The people of America know what they have relinquished for certain purposes. They also know that they retain everything else, and have a right to resume what they have given up, if it be perverted from its intended object.
“It is a principle universally agreed upon, that all powers not given are retained,” he declared.
Contrary to the “one nation, indivisible” phrase in the Pledge of Allegiance, they were not creating a permanent government that could never be abolished. To do so would have been to betray the fundamental principles of the Declaration of Independence. The people were, through their legislatures, delegating powers to a federal government – but if they no longer wished to delegate them they could take them back.
In other words, because the people were sovereign they had a right to abolish a government or withdraw their consent to its rule, just as they had done with Great Britain.
If there is any doubt left in someone’s mind as to the authorities of the federal government, James Madison put it as well as anyone could when he said their powers were intended chiefly for times of war, “while those of the state governments will be exercised in time of peace.”
“The powers of the general government relate to external objects, and are but few,” he said on June 11. “But the powers in the states relate to those great objects which immediately concern the prosperity of the people.”
It was a government that was given powers mainly to be utilized at a time of war; and the founders hoped to avoid the kind of wars that had ravaged European. It was a government that had few powers which were to be exercised infrequently.
But what about the Supremacy Clause, which declares that all laws made in pursuance of the Constitution supersede state laws? Surely this erased any limitations from the new government, said George Mason.
“Are not those rights with which we were afraid to trust our own citizens annulled and given up to the general government?” he argued on June 11.
Clauses like this made a bill of rights in the U.S. Constitution as necessary as ones for state constitutions, he went on:
Let gentlemen show that they are secured in a plain, direct, unequivocal manner. It is not in their power. Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government? These rights are given up in that paper; but I trust that this Convention will never give them up; but will take pains to secure them to the latest posterity.”
He then proposed a constitutional amendment evoking the same spirit of the Tenth Amendment.
We wish only our rights to be secured. We must have such amendments as will secure the liberties and happiness of the people on a plain, simple construction, not on a doubtful ground….We ask such amendments as will point out what powers are reserved to the state governments, and clearly discriminate between them and those which are given to the general government, so as to prevent future disputes and clashing of interests. Grant us amendments like these, and we will cheerfully, with our hands and hearts, unite with those who advocate it, and we will do everything we can to support and carry it into execution. But in its present form we never can accede to it.”
“The liberty or misery of millions yet unborn are deeply concerned in our decision,” he added.
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