If the Constitution established a national form of government, then Congress would have been granted general legislative authority over all persons and things throughout the several States. In the alternative, if the Constitution established a federal government of limited enumerated powers, which concern the collective interests of the States, then Congress could not have been granted this power. In the authors' opinion, this is the most important question facing the American people because it brings into question the constitutionality of congressional legislation being applied directly to the people of the several States.
In order to understand the nature of the Constitution and the character of the federal government, it is necessary to trace the evolution of the United States beginning with the Declaration of Independence.
The Declaration Of Independence
The words used in the Declaration show that the document was a declaration of independence for the Colonies, not the people as such. In fact, it is subtitled as "The unanimous Declaration of the thirteen united States of America."
That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.
Following the signing of the Declaration, it was proposed that the thirteen united States, not the people collectively, enter into a union or confederation for their mutual security.
The Articles Of Confederation
On November 15, 1777, the thirteen united States, in Congress assembled, agreed to a plan of confederation. Unanimous ratification was accomplished when Maryland, on March 1, 1781, ratified the Articles of Confederation. The Articles, which were federal in nature, established a union or compact between the thirteen united States. Under the Articles, each State retained its sovereignty, freedom and independence. They also retained every power, jurisdiction and right that was not expressly delegated to their general government.
Article III shows that neither the people nor the federal government was a party to the union established between the several States.
The said states hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other... (emphasis added)
Under the Articles, Congress had no power to pass any law that applied directly to the people of the several States.
Defects In The Articles
By 1786 it had become apparent that the Articles had several defects and were in need of revision. First, was the inability of Congress to raise sufficient revenue from the individual States. Second, was the inability of Congress to control commerce between the member States and with foreign nations. On September 11, 1786, five States met at Annapolis, Maryland, to discuss defects in the existing federal system of government. As a result, it was recommended that the States send delegates to Philadelphia in May of 1787 for the "sole and express purpose of revising the Articles of Confederation" and rendering "the federal constitution adequate to the exigencies of Government & the preservation of the Union."
The Federal [Constitutional] Convention
When the Federal Convention convened in May of 1787, there were two opposing factions. One side pushed for a strong "national" system of government, while the other favored a revision of the federal system of government established by the Articles of Confederation.
On May 29, Edmund Randolph, Governor of Virginia, gave a speech in which he enumerated perceived defects in the Articles. He concluded his remarks by introducing a set of fifteen resolutions that he hoped the Convention would adopt as the "leading principles whereon to form a new government." Randolph's proposed resolutions would have consolidated the individual States into one nation with them becoming subordinate or nonexistent. After nearly two months of heated debate, the Convention rejected the national plan put forth by Randolph. The result of what transpired thereafter sparked a debate that continues to this day.
The Anti Federalists
Immediately following the signing of the proposed constitution in the Federal Convention, its opponents, known as the Anti-federalists, began writing essays critical of the document. They argued that the adoption of the proposed constitution would effect a change in the existing federal system of government. The Anti-federalists asserted that adoption of the proposed constitution would result in a consolidation of the States.
From October of 1787 to April 1788, a series of sixteen essays, written under the pseudonym Brutus, appeared in the New York Journal. The essays were a detailed critique of the proposed Constitution. In essay number one, the author stated that the first question to be addressed was:
[W]hether a confederated government be the best for the United States or not? Or in other words, whether the thirteen United States should be reduced to one great republic, governed by one legislature, and under the direction of one executive and judicial; or whether they should continue thirteen confederated republics, under the direction and control of a supreme federal head for certain defined national purposes only?
The essay went on to state:
If then this new constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted.
The Anti-federalist position was expressed very succinctly in a document signed by 21 of the dissenting members of the Pennsylvania ratifying convention [Pennsylvania adopted the Constitution by a vote of 46 to 23]:
We dissent, secondly, because the powers vested in congress by the constitution, must necessarily annihilate and absorb the legislative, executive and judicial powers of the several states, and produce from their ruins one consolidated government, which from the nature of things will be an iron handed despotism, as nothing short of the supremacy of despotic sway could connect and govern these United States under one government. (emphasis not added)
They concluded this part of their dissent by stating:
Thus we have fully established the position, that the powers vested by this constitution in Congress, will effect a consolidation of the states under one government, which even the advocates of this constitution admit, could not be done without the sacrifice of all liberty.
The proponents of the proposed constitution, the Federalists, responded to these assertions with a series of eighty-five essays commonly known as the Federalist Papers.
The Federalist essays, published under the pseudonym Publius, were written by John Jay, Alexander Hamilton and James Madison. In essay No. 40, Madison, who has been referred to as the father of the Constitution, addressed the argument that ratification of the proposed constitution would change the nature of the general government:
The truth is that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation.
He went on to support his assertion in much more detail in essay No. 45:
If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL powers. The regulations of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. (Emphasis not added)
The proposed constitution, as stated by Madison, was simply a modification of the system of government established by the Articles of Confederation. Thus, there would be no change in the nature of the general government. The federal government would remain the general government of the several States.
This article, "Do the Constitution and the Powers of the Federal Government Pertain to You?, is in response to correspondence from readers who requested more information about the Constitution and the powers of the federal government. We have spent many years doing research in what we call "the forgotten books" in an attempt to resurrect the true intent of the Constitution. We liken this to a monopoly game where the rules of the game are set in stone. The Constitution, as far as the powers of the federal government are concerned, constitutes the rules of the game. These rules are fixed and have a precise meaning based on the intent of those who crafted them. The problem flows from the fact that two players in the game, the several States and American people, have lost their copy of the rules while the other player, the federal government, is cheating by redefining the rules and changing the rules as the game unfolds. Until the States and the American people rediscover the rulebook and understand those rules, the federal government will always win the game. It is hoped this brief article on the Constitution will stimulate debate and help resurrect the rulebook.
If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob
Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.