SHEAR, Philadelphia, July 23, 2005
Comments on Richard Leffler, "A Supream Legislature" Calvin Johnson* Richard Leffer of Wisconsin Documentary History of the Constituion Project has written a lucid and useful description of the nationalizing proposals made before the Articles of Confederation were adopted.1 This brief comment is stimulated by his paper, without being critical of it, and argues that neither the Galloway proposal for a national legislature nor the Burke limitations on the Congress to powers expressly delegated to it, were all that important.
A. Burke's "Expressly Delegated" Limitation.
In April 1777, Thomas Burke of North Carolina convinced the Congress to amend a draft of the Articles of Confederation then under consideration to provide that Congress would have only powers "expressly delegated" to it.2 Burke claimed that without his "expressly delegated" limitation, a future Congress could "explain away every right belonging to the States, and to make their own power as unlimited as they please."3 Franklin's 1775 draft for the Articles had listed powers for the national Congress, but he explicitly made his list illustrative rather than exhaustive:
The Congress shall also make and propose such general Regulations Ordinances as tho' necessary to the General Welfare, particular Assemblies from their local Circum cannot be competent to; viz. such as may relate to those that may relate to our general Commerce; or general Currency; to the Establishment of Posts; and the Regulation of our common Forces.4
Dickinson's 1776 draft of the Articles had listed Congressional powers, without stating whether the list was exhaustive or illustrative.5 The text of the 1787 Constitution returned to something like the Franklin draft, by removing Burke's "expressly delegated" limitation. The Resolution in the 1787 Convention that was supposed to provide binding instructions to the drafting committee, provided that Congress would have power “to legislate in all cases for the general interests of the Union.”6 I think the final Constitution is loyal to that resolution.7 The Committee of Detail, which wrote the first draft of the Constitution, copied the Articles in
* University of Texas Law School 1 Richard Leffler, "A Supream Legislature: The Early Movement for a Strong Central Government," presented to Society of Historians of American Republic, July 23, 2005. 2 Letter from Thomas Burke to Governor Richard Caswell of North Carolina (Apr. 29, 1777), in 6 LETTERS OF DELEGATES TO CONGRESS , 1774-1789 (Smith, Paul H., et al., eds., 1976-2000), at 672, http://memory.loc.gov. The limitation survived into Article II of the Articles of Confederation as ratified. ARTICLES OF CONFEDERATION, art. II, (March 1, 1781), 19 J CONTINENTAL CONG. 214 (Worthington C. Ford et al. 1904-37). http://memory.loc.gov. 3 Id. 4 July 21, 1775, 1 J. CONTINENTAL CONG. 196 (emphasis added). 5 June 17, 1776, 4 LETTERS OF DELEGATES 250 (Article 19) 6 Gunning Bedford, Motion of July 17, 1787, 2 FARRAND’S RECORDS 26, http://memory.loc.gov. 7 Calvin Johnson, The Dubious Enumerated Powers Doctrine, -- CONSTITUTIONAL COMMENTARY – (forthcoming 2005). structure and language but removed the expressly delegated limitation.8 Governor Edmund Randolph of Virginia, who was on the Committee of Detail, explained that the expressly-delegated limitation was removed because it had proved “destructive to the Union” and that even the presumably-noncontroversial federal passport system had been challenged.9 When the Anti-Federalist tried to return the word "expressly" into the 10th Amendment, which limits Congress powers delegated to it, they were defeated overwhelmingly.10 We should take from this history that not all of the powers of Congress are written down in the Constitution, for example, the federal passport. The enumerated powers seem to be illustrative rather than exhaustive. Congress seems to have the written authority to legislate for the common interest. The difficulty is that the polity acted as if "expressly delegated" had never been removed such that the listed power were exhaustive. Charles Pinckney told the South Carolina House in the ratification debate that in the federal government, “no powers could be executed, or but such as were expressly delegated.”11 Madison gave a famous version of the enumerated powers limitation in Federalist No. 45: “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.”12 By 1812, the Jeffersonian Supreme Court was saying that the "powers of the general Government are made up of concessions from the several states – what is not expressly given to the former, the latter expressly reserve."13 “The tenet that Congress has only the power to provide for enumerated powers, and not for the general welfare,” Jefferson wrote in 1811, “is almost the only landmark which now divides the federalists from the republicans”14 Jeffersonian enumerated powers doctrine prevailed at least from 1800 through the civil war. Jefferson read the enumerated powers as exhaustive rather than illustrative even in absence of any textual support. If Burke's creating expressly delegated limitation had been all that dramatic a change, then its removal should have been symmetrically dramatic. In fact, however, the presence or absence of the "expressly delegated" limitation arguably made little difference. Congress chartered the National Bank of North America under the expressly delegated limitation in the Articles of Confederation15 and the Jeffersonians thought that
8 2 FARRAND’S RECORDS 97. 9 Edmund Randolph, Debate in the Virginia Ratification Convention (June 24, 1788), in 3 ELLIOT’S DEBATES 600-601, http://memory.loc.gov. 10 August 18, 1789, 1 ANNALS 790, 1st Cong., 1st Sess, http://memory.loc.gov. see also August 21, 1787, in 1 ANNALS 797, 1st Cong., 1st Sess. (reporting that Elbridge Gerry’s proposal to add “expressly delegated” to the Ninth Amendment was defeated, 17-32, without debate). 11 Charles Pinkney, Speech to the South Carolina House of Representatives, (Jan. 16, 1788) in 4 ELLIOT’S DEBATES 259 (emphasis added). 12 THE FEDERALIST No. 45, at 315 (Madison)(Jan. 26, 1788). 13 United States v. Hudson and Goodwin, 11 U.S. 32, 33 (1812) (Johnson, William, J) (emphasis added). 14 Letter from Thomas Jefferson to Albert Gallatin (June 16, 1817), in 12 JEFFERSON PAPERS 71 (Julian Boyd, ed.). 15 December 31, 1781, in 21 J CONTINENTAL CONG. 1186-90. Janet Reisman, Money, Credit and Federalist Political Economy, in BEYOND CONFEDERATION : ORIGINS OF THE CONSTITUTION AND AMERICAN NATIONAL IDENTITY 128, 138-149 (Richard Beeman et. al. eds. 1987) has a fine description of Robert Morris’s plans and the far more modest results that the Bank of North America was able to achieve. a national bank was unconstitutional under a Constitution that had no such limitation.16 There was a consensus, both with and without the expressly delegated limitation, that Congress should act only within the appropriately national sphere, that is, for the common defense and general (inter-state) welfare, and that consensus had more power than the "expressly delegated" limitation did. I suspect that Dickinson's list of federal powers would have been read as exhaustively indicating the appropriate limits of the national government, even without Burke's amendment. * * * * * * * In September 1774, Joseph Galloway called for a national legislature, but it was a "British American Legislature,"17 embedded in his attempt to derail the drive for Independance, and as a part of a compromise that nobody wanted to hear. The 1787 Constitution, thirteen years later, in fact created a strong national government, but not because of any influence from Galloway. By 1787, Galloway was a Tory exile in London who had written polemical pamphlets both on the supposed glories of his compromise and also on how the Redcoats should have conducted its military campaigns to defeat Washington's army.18 Galloway's 1775 "compromise" would have required that if Britain raised taxes in the American colonies to pay for war, both the British Parliament and his "British American Legislature" would need to consent. Galloway's plan would, however, have conceded full authority to the British Parliament to impose the protective Navigation-Act taxes that prevented outside competition from foreign shipping and gave monopoly franchises to colonial shippers within the protection. "Every Gentleman here thinks," Galloway said, "that Parliament ought to have the Power over Trade, because Britain protects it and us."19 The distinction between [bad] internal taxes to raise revenue and [acceptable] taxes to channel trade also shows up in the Stamp Act crisis and in the earliest revolutionary pamphlet literature.20 As he presented his plan, Galloway argued that the colonies needed Great Britain:
"We want the Aid and Assistance and Protection of the Arm of our Mother Country. Protection And Allegiance are reciprocal Duties. Can We lay claim to the Money and Protection of G. Britain upon any Principles of Honour or Conscience? Can We wish to become Aliens to the Mother State [?] We must come upon Terms with G. Britain.21
16 See, e.g., Thomas Jefferson, Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), in 19 JEFFERSON PAPERS 275; James Madison, Speech in the House of Representatives (Feb. 3, 1791), 1 ANNALS 1949, 1st Cong., 3d Sess. (denying that “necessary and proper” clause could cover the bank). 17 John Adam's Notes of Debates in the First Continental Congress, Sept. 28, 1774, 1 LETTERS OF DELEGATES 110. 18 See BARNARD BAILYN, THE ORDEAL OF THOMAS HUTCHINSON, 385 n. (1974) (also arguing that Galloway's 1779 and 1780 pamphlets were lost in the flood of polemical writings and had no influence on the development of historical ideas). 19 Id. at 111. 20 See, e.g. 1 PAMPHLETS OF THE AMERICAN REVOLUTION, 1750-1765, at 124-127 (Bernard Bailyn ed., 1965) (describing arguments by Benjamin Franklin and others that Parliament should not impose internal taxes on the colonies). 21 Id. at 111. Neither side had any interest in Galloway's "compromise." The British Parliament had asserted full power in any case whatsoever22 and was not about to concede power over revenue for war to an American Legislature, even a British American Legislature. The Continental Congress was well on its way to deciding that the Parliament had authority in no case whatso ever.23 Galloway's audience did not think we needed the protective arms of the Mother Country. Galloway would also give his "British American Legislature" co-authority with the British Parliament over "Laws in which more than one Colony were concerned," which is echoed in Madison's 1787 Virginia Plan under which Congress would have power over "those Cases to which the States are separately incompetent."24 The Continental Congress to which Galloway addressed his plan was becoming a national legislature. Given the failed, even stigmatized program to which Galloway's British American Legislature was attached, however, it difficult to see that his plan had any significant historial influence. Galloway's plan is an evolutionary dead end, without offspring
22 Declaratory Act, Great Britain Parliament, The Declaratory Act of March 18, 1766,