How the Supreme Court Is on the Verge of Delivering Even Greater Power to Corporations
Continued from previous page
And that’s not just a retrospective view from the 21st Century. Both at the Philadelphia convention in 1787 and in the ratification fight of 1788, the Framers were opposed by the Anti-Federalists who also perceived the Constitution to be a major concentration of power in the central government. The states went from being “sovereign” and “independent” under the Articles of Confederation to “subordinately useful,” in Madison’s notable phrase.
‘General Welfare’ Clause
As historian Jada Thacker has noted, in the “general Welfare” clause and the “elastic” language of “necessary and proper,” the Constitution put into the hands of Congress and other federal agencies the authority to meet whatever might confront the nation in the future.
“When viewed in light of the ambiguous authorization of the Article’s first clause (which includes the ‘general Welfare’ language), the importance of the “necessary and proper” clause truly is astonishing. Taken together, these clauses – restated in the vernacular – flatly announce that ‘Congress can make any law it feels is necessary to provide for whatever it considers the general welfare of the country.’”
That was precisely how the Constitution was interpreted by dissidents at the Convention. As New Yorker Robert Yates wrote after walking out in Philadelphia:
“This government is to possess absolute and uncontrollable power, legislative, executive and judicial, with respect to every object to which it extends. … The government then, so far as it extends, is a complete one. … It has the authority to make laws which will affect the lives, the liberty, and the property of every man in the United States; nor can the constitution or the laws of any state, in any way prevent or impede the full and complete execution of every power given.”
When the Constitution was sent to state conventions for ratification, the Anti-Federalists continued to make their case against the transfer of power from the states to the federal government. In Virginia, leading Anti-Federalists Patrick Henry and George Mason tried to rally opposition by warning plantation owners that eventually the North would come to dominate the federal government and end slavery.
“They’ll free your niggers,” warned Patrick Henry.
Though the Constitution eked through to ratification, the Anti-Federalists did not give up their fight against the governing document. Their strategy changed, however, into seeking to reinterpret it. Rallying behind the charismatic figure of fellow slaveholder Thomas Jefferson, who had been in France during the drafting and ratification of the Constitution, the Anti-Federalists sought to constrain federal powers by insisting that the plain language of the document didn’t mean what it said.
This reinterpretation of the Constitution – spearheaded by Southerners fearful of the eventual loss of their massive investment in slavery – explains the extraordinary bitterness of the battle between the Jeffersonians and the Federalists in the 1790s.
Ultimately, due to Federalist missteps inherent in the complexity of setting up a new government – mistakes skillfully exploited by Jeffersonian propagandists – Jefferson prevailed in developing extra-constitutional theories like the right of states to “nullify” federal laws or even secede. Jefferson defined his reassertion of states’ rights as ”strict constructionism” but it was clearly not what the original Framers had intended in 1787.
However, as President, even Jefferson adopted the “pragmatic nationalism” of the Federalists when he justified buying the Louisiana Territories from France and imposing a trade embargo against European states.
Madison, who shifted his allegiance from the Federalists to the Jeffersonians (and thus saved his political career among his fellow Virginian slaveholders), also embraced more expansive federal powers after nearly losing the War of 1812. To help fund the government and build a professional military, Madison set up the Second Bank of the United States before leaving office in 1817. (Treasury Secretary Hamilton had created the First Bank of the United States under President Washington.)