In my last post I showed how pre-Revolutionary colonial pamphlets espousing the American cause tend to rebut a favorite theory of some “progressive” writers—that the Constitution granted Congress almost complete power over all activities with interstate effects.
Surprisingly, most delegates to the 1787 constitutional convention initially favored a central government nearly that powerful. They would have subordinated the states to a level just above that of counties in England. Naturally Alexander Hamilton—the founding generation’s “Mr. Big Government”—took this position. But so did many moderates, such as James Madison and Edmund Randolph.
Under Madison’s and Randolph’s guidance, the Virginia delegation presented an initial draft for a constitution commonly known as the “Virginia Plan.” It called for a national legislature with authority “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” The Virginia Plan similarly called for national courts that could hear any matter “which may involve the national peace and harmony.”
To be sure, even this language would not have granted the central government as much authority as the “progressives” claim for it today, since not all interstate effects result in state “incompetence” or damage interstate harmony. Nevertheless, it would have resulted in a very powerful central government.
Early in the convention, the delegates adopted resolutions approving these parts of the Virginia Plan. As time wore on, however, the delegates thought better of it, and changed their minds. One reason was, no doubt, a recognition that the general public would never approve a strongly “national” constitution.
When the Committee of Detail produced the first draft of the Constitution in early August, 1787, the general powers had been altered into lists of powers specifically enumerated. This scheme continued into all later drafts.
“Progressive” theorists sometimes respond that the enumerated powers simply represented elaborate synonyms for the earlier “interstate harmony” wording. For several reasons, this is extremely unlikely.
First, the enumeration of powers represented a radical change in the document’s language. When drafters make changes of this kind, the law usually (and rightly) presumes that they intended to change the meaning of the document. Second, after the plan of enumeration was adopted, the convention rejected multiple proposals to grant Congress more complete authority over activities with interstate effects. And third, during the ratification fight, the Constitution’s advocates repeatedly listed powers the federal government would NOT have, including many better enabling Congress to govern activities with interstate effects.
For more on this subject, see my article The Enumerated Powers of States and Chapter 3 of The Original Constitution: What It Actually Said and Meant.
Next week: Where is that enumeration of judicial powers?