In one of his later essays, the Federal Farmer made a strong case for what eventually became the Tenth Amendment.
A major contention among anti-federalists and other skeptics of the proposed Constitution revolved around the limits on federal power.
In particular, they were skeptical the federal government would remain limited to the “enumeration” of federal powers in the document. Their fear was that the Constitution’s ratification would lead to the evolution of unenumerated or implied powers and a much larger, more powerful central government than the one promised.
Many opponents of ratification, such as Patrick Henry, insisted that a bill of rights be included making it unmistakably clear that the powers not expressly delegated to the federal government were reserved by the states and ultimately the people themselves.
The Federal Farmer held a similar view, and offered numerous examples from the Constitution that he believed could be argued in favor of unenumerated or implied powers.
In his 16th letter dated Jan. 20, 1788, he made the case that a bill of rights should be included, as he had previously written amendments were needed. However, he felt a better approach was to simply amend the proposed language of the Constitution itself.
He wrote (bold emphasis added):
“We often find, these articles and stipulations placed in bills of rights; but they may as well be incorporated in the body of the constitution, as selected and placed by themselves. The constitution, or whole social compact, is but one instrument, no more or less, than a certain number of articles or stipulations agreed to by the people, whether it consists of articles, sections, chapters, bills of rights, or parts of any other denomination, cannot be material.
This is actually the approach that James Madison took when he proposed a new Article VII in 1789.
Federal Farmer continued:
“On the one hand, it seems to be considered as a necessary distinct limb of the constitution, and as containing a certain number of very valuable articles, which are applicable to all societies; and, on the other, as useless, especially in a federal government, possessing only enumerated power—nay, dangerous, as individual rights are numerous, and not easy to be enumerated in a bill of rights, and from articles, or stipulations, securing some of them, it may be inferred, that others not mentioned are surrendered.”
He also expressed sentiments on federalism that closely mirror the language eventually used in the Tenth Amendment itself.
“The supreme power is undoubtedly in the people, and it is a principle well established in my mind, that they reserve all powers not expressly delegated by them to those who govern; this is as true in forming a state as in forming a federal government.”
Here, he emphasizes the importance of clarity on the matter. He wrote that whenever powers are delegated to a government, the extent of those powers need to be understood by all. And not just at the current time but later on as well. He also noted the problem some anti-federalists had with a proposed bill of rights; if some rights were mentioned but not others, it could be construed as to protect just those rights and not others.
He wrote (bold emphasis added):
“When we particularly enumerate the powers given, we ought either carefully to enumerate the rights reserved, or be totally silent about them; we must either particularly enumerate both, or else suppose the particular enumeration of the powers given adequately draws the line between them and the rights reserved, particularly to enumerate the former and not the latter, I think most advisable: however, as men appear generally to have their doubts about these silent reservations, we might advantageously enumerate the powers given, and then in general words, according to the mode adopted in the 2d art. of the confederation, declare all powers, rights and privileges, are reserved, which are not explicitly and expressly given up.”
However, the Federal Farmer argued this type of opposition to a bill of rights was invalid if it included a statement explicitly stating the only powers granted were those specifically delegated, in effect declaring in no uncertain terms it would be a limited government.
“It is not merely in this point of view, that I urge the engrafting in the constitution additional declaratory articles. The distinction, in itself just, that all powers not given are reserved, is in effect destroyed by this very constitution, as I shall particularly demonstrate—and even independent of this, the people, by adopting the constitution, give many general undefined powers to congress, in the constitutional exercise of which, the rights in question may be effected. Gentlemen who oppose a federal bill of rights, or further declaratory articles, seem to view the subject in a very narrow imperfect manner.”
“To make declaratory articles unnecessary in an instrument of government, two circumstances must exist; the rights reserved must be indisputably so, and in their nature defined; the powers delegated to the government, must be precisely defined by the words that convey them, and clearly be of such extent and nature as that, by no reasonable construction, they can be made to invade the rights and prerogatives intended to be left in the people.” (bold emphasis added).
Many Federalists felt a bill of rights was unnecessary. They argued that the Constitution was written in such a way as to only delegate specific authority to the general government. The Constitution lists specific powers that a particular branch “shall” be able to do. Anything not delegated, they argued, was prohibited.
In other words, the Constitution only defined what the federal government could do, not what it couldn’t do. James Madison wrote in Federalist #45 that the powers of the federal government were “few and defined.”
However, the Federal Farmer considered this to be an inaccurate interpretation of the document, as there are, in fact, sections where the Constitution forbids the federal government from doing certain things. For example, Article Section 9 prohibits Congress from granting a title of nobility.
Why was this necessary, if in fact all powers granted were only those explicitly stated? he asked.
The Federal Farmer notes that the implication of this prohibition is that without it, Congress would in fact have that authority even though it’s not mentioned anywhere. Thus, one could conclude the document confers implied powers.
The Federal Farmer concluded that this is why the protection of certain rights was necessary, along with a statement regarding the Constitution’s limited scope.
“All parties apparently agree, that the freedom of the press is a fundamental right, and ought not to be restrained by any taxes, duties, or in any manner whatever. Why should not the people, in adopting a federal constitution, declare this, even if there are only doubts about it. But, say the advocates, all powers not given are reserved.—true; but the great question is, are not powers given, in the excercise of which this right may be destroyed?” (bold emphasis added).
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