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James Madison: Father of the Implied-Powers Doctrine The Future of Freedom Foundation

TGIF: James Madison: Father of the Implied-Powers Doctrine The Future of Freedom Foundation.

by  July 26, 2013

James Madison famously wrote in Federalist 45: “The powers delegated by the proposed Constitution to the federal government, are few and defined.” Strict constructionists are fond of this quote, and often cite it in defense of their view that the Constitution established a government of strictly limited powers.

But did it?

One way to approach this question is to look at Madison’s record. Some people will be surprised to learn that the author of the Constitution was also the author of the implied-powers doctrine, which would seem to run counter to the few-and-defined-powers doctrine.

The U.S. Constitution, of course, was America’s second constitution, the first being the Articles of Confederation (1781–1789). The Articles did little more than formalize the confederation of soon-to-be sovereign states, leaving few powers to the single-branch national government. (It created Congress only, no executive or judiciary.) This government lacked two powers that national governments routinely exercise: the power to tax and the power to regulate trade. Indeed, the power to tax is so essential to the identity of government that we are warranted in calling what the Articles created a quasi government. For its revenue it depended on the power of the states to impose taxes on the people, but it could not tax the people directly. (Attempts to permit the national government to impose a duty on imports failed.)

The bare-bones Articles left little for ambitious politicians to work with. What was a statesman to do? Less than two weeks after the Articles took effect, Madison hit on a solution. As a member of the Congress, he proposed an amendment:

A general and implied power is vested in the United States in Congress assembled to enforce and carry into effect all the articles of the said Confederation against any of the States which shall refuse or neglect to abide by such determinations.

Note the phrase “general and implied power.”

As his biographer, Ralph Ketcham, wrote, “Madison sought as well to make the mode of enforcement explicit: Congress was authorized ‘to employ the force of the United States as well by sea as by land’ to compel obedience to its resolves.”

The amendment, along with others that would have bulked up the central government, failed. (Ketcham noted that Madison then became “more devious”  in his attempts to enlarge its powers.)

The view held by Madison and other Founders that the central government was too weak paved the way to the convention in Philadelphia in 1787. Albert Jay Nock called this the “coup d’etat,” because rather than amending the Articles per its mandate, the convention, which worked behind locked doors, started from scratch. (Changes to the Articles would have required unanimous consent of the states. But the proposed Constitution set its own rules for ratification: only 9 of 13 states were required.

As Madison wrote to Thomas Jefferson: “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].”

This was echoed by James Wilson, a well-respected judge from Pennsylvania and an ardent nationalist: “It has never been a complaint [against congresses] that they governed overmuch. The complaint has been that they have governed too little.”

Madison’s interest in implied powers is indicated by what didn’t get into the Constitution. For example, the Articles of Confederation contained this language in Article II:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expresslydelegated to the United States, in Congress assembled. [Emphasis added.]

Nothing like this appeared in the Constitution drafted in Philadelphia. On the other hand, the document did extend to Congress the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”

This is the “necessary and proper” clause so feared by the Antifederalist critics of the proposed Constitution. As the Antifederalist “Brutus” wrote, “No terms can be found more indefinite than these, and it is obvious, that the legislature alone must judge what laws are proper and necessary for the purpose.”

Once the Constitution was released to the public, its champions set out to sell it to a skeptical populace. Wilson sought to assure the people that the government’s powers were expressly limited by enumeration:

The congressional authority is to be collected, not from tacit implication but from the positive grant expressed in the [Constitution].… [E]very thing which is not given [to the national government], is reserved [to the states].

But this assertion was met with incredulity by many who read the document. Jefferson responded:

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 dictum, 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.

Arthur Lee of Virginia also scoffed (PDF):

Mr. Wilson’s sophism has no weight with me when he declares … that in this Constitution we retain all we do not give up, because I cannot observe on what foundation he has rested this curious observation.

The lack of something like Article II of the Articles of Confederation, along with the lack of a bill of rights, created enough concern about the proposed Constitution that its advocates felt compelled to promise to make things right.

After ratification, the first Congress, largely on Rep. Madison’s initiative, set to work writing a bill of rights. (Other nationalists would have just as soon broken their promise.) Twelve amendments made the final cut in the congressional committee. Amendment XII (later to become X when two failed to be ratified by the states) read,

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.

It was a pale reflection of the old Article II. On seeing this language, Rep. Thomas Tudor Tucker of South Carolina rose to amend the amendment by inserting the word expressly before the word delegated.

According to the record, Madison objected that “it was impossible to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae.” (Emphasis added.)

Tucker’s amendment failed, and failed again when submitted to the whole Congress. (According to the record, “Mr. Tucker did not view the word ‘expressly’ in the same light with the gentleman who opposed him; he thought every power to be expressly given that could be clearly comprehended within any accurate definition of the general power.”)

Thus, the man who promised that the powers of government under the new Constitution would be “few and defined” now said that any constitution must have unenumerated implied powers. His colleagues should not have been surprised. In Federalist 44 Madison had written that “No axiom is more clearly established in law or in reason than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.”

Even earlier, before the convention, writes biographer Ketcham, Madison “opposed a strict definition of ‘the extent of Legislative power’” in advising Kentuckians who were contemplating a state constitution.

Madison was right, of course. No constitution could expressly enumerate all powers without appending an endless list of minutiae. There must be implied powers — and that’s the danger of any constitution. Implied powers of course must be inferred, and inference requires interpretation. Who is likely to have the inside track in that process: those who seek to restrict government power or those who seek to expand it?

This post was written by:

Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF’s monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF’s award-winning book Separating School & State: How to Liberate America’s FamiliesYour Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling.Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: “I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank… . I also think that Mr. Richman is right to fear that state education undermines personal responsibility…” Sheldon’s articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington PostWall Street JournalAmerican ScholarChicago TribuneUSA Today,Washington TimesThe American ConservativeInsightCato Policy ReportJournal of Economic DevelopmentThe FreemanThe World & IReasonWashington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.

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Another Nonsensical Attack on Libertarians

by Jacob G. Hornberger
Future of Freedom Foundation

Recently by Jacob G. Hornberger: The CIA and the Assassination of John Kennedy

I can’t help but comment on the latest liberal attack on libertarians because the entire episode is so humorous. This newest attack comes from Joshua Holland, senior editor at Alternet.org, one of the most liberal organizations in the country.  

The controversy involves a decision by a fire department in Obion County, Tennessee, to stand by and watch a house burn down because the owner hadn’t paid the $75 fee to be protected by the fire department.

Holland went on the attack, describing the episode as an example of libertarianism and “Ayn Rand conservativism” at work. Holland wrote: “It’s a picture of a society in which ‘rugged individualism’ run amok means every man for himself. Call it Ayn Rand’s stark, anti-governmental dream come true.”

Well, except for one important detail: It was a government-owned, government-operated fire department!

In other words, Holland took a decision made by a socialist enterprise and used it to attack libertarianism!

How’s that for liberal logic at work?

One of the principal tenets of liberals is their overarching belief in the goodness of government.

Indeed, whenever libertarians call for the repeal of socialist welfare-state programs, what is the standard attack leveled by liberals?

“You hate the poor, the needy, and the disadvantaged!”

The implication, of course, is that government can be trusted to love the poor, needy, and disadvantaged.

Well, I don’t know how poor that homeowner was whose house burned down or how disadvantaged he was, but I do know one thing: He was quite needy at the time his house was burning down.

Where was the much-vaunted government compassion when his house was burning down? It was nowhere to be found!

Needless to say though, liberals aren’t going to condemn a government-owned enterprise. That would be akin to blasphemy. Better to use the lack of compassion by government bureaucrats to attack libertarians instead!

Let’s assume that the fire department was entirely private, as libertarians call for. Would a private fire department have made the same decision as the socialized, governmental-owned fire department?

Holland says yes because he obviously thinks that people in the private sector would be just as uncaring and indifferent to the sufferings of people as those government bureaucrats were.

Sure, it’s entirely possible that a private fire department would have made the same decision as the socialized, government-owned fire department.

But not very likely.

You see, Holland ignores a critical difference between the private sector and the government sector: the profit motive. The private company exists to make money. Therefore, a private fire department would have the incentive to have pre-written contracts in which an owner who had failed to purchase fire protection would be asked to agree to pay, say, double the costs of putting out the fire.

When that guy whose house was burning down offered to pay the costs of putting out the fire, the government bureaucrats not only didn’t accept the offer, they didn’t make a counter-offer. Socialized institutions aren’t driven by the profit motive.

In a follow-up post to his article, Holland displayed a surprising naïveté about another point about government operations that libertarians have long made: that people are “taxed at gunpoint.”

(This isn’t the only area in which liberals have a blind spot. Another one is their support of minimum-wage laws, as I pointed out in my article “Why Do Daily Kos and Alternet Support a Racist Program?”)

Holland writes: “Fun fact: if you don’t pay your taxes, you get a letter in the mail informing you that your wages will be garnished or a lein (sic) is being placed on your property. No guns involved!”

I hate to burst Holland’s bubble but he’s obviously unfamiliar with what happens after the government places a lien on someone’s house. It’s not fun, if the property owner steadfastly refuses to pay his taxes. Here’s what happens. The government will proceed to foreclose its lien by advertising a foreclosure sale. At the foreclosure sale, a government official auctions the property and sells it to the highest bidder. A deed transferring ownership of the property is given to the new owner. He now legally owns the property.

The new owner calls the taxpayer and says, “Get out of my house.” The taxpayer says, “Nope. This is my house, not yours.”

The new owner goes to a judge and secures a writ of possession and an order commanding the taxpayer to get out of the house. The writ and order will be served by deputy sheriffs (or deputy U.S. Marshalls in the case of IRS liens), all of whom have loaded guns on them. What happens if the taxpayer refuses to vacate? What happens if he decides to use force against those deputy sheriffs who are charged with evicting him? They will pull their guns out and they will use them against the recalcitrant taxpayer who is using his guns to resist the eviction. The final outcome of the encounter will be called “resisting arrest.”

As libertarians have long pointed out, the entire socialist paradigm is founded on force, which is antithetical to principles of individual liberty, free markets, and voluntary charity. That’s reason enough to reject such collectivist notions as government-owned fire departments as well as such immoral and destructive socialist programs as Social Security, Medicare, Medicaid, education grants, agricultural subsidies, bank bailouts, food stamps, foreign aid, and other welfare programs.

Reprinted from The Future of Freedom Foundation.

October 8, 2010

Jacob Hornberger [send him mail] is founder and president of The Future of Freedom Foundation.

Copyright © 2010 Future of Freedom Foundation

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