Did Congress Have Power to Ban the Interstate Sale and Transportation of Slaves?

In an important new article, “To Regulate,” Not “To Prohibit”: Limiting the Commerce Power, Barry Friedman and Genvieve Lakier argue that the Commerce Clause of the United States Constitution does not grant to Congress the power to prohibit interstate commerce.  In the process, the authors shed light on a fascinating historical question: why didn’t southern founders foresee that the Commerce Clause would give Congress the power to strangle slavery by banning the interstate sale and transportation of slaves?  And why did northern antislavery advocates likewise not recognize that the Commerce Clause gave them this powerful weapon until the Missouri Debates of 1819, more than thirty years after ratification?  The answer to both questions, the authors powerfully argue, is that it was generally recognized that the Constitution granted no such power to Congress.

By way of background, the Commerce Clause of the Constitution grants Congress the power to “regulate” both foreign commerce and commerce among the several states.  Article I Section 8 succinctly provides:

The Congress shall have Power . . .

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

There is no doubt that the power to “regulate” foreign commerce was intended and understood to ban such commerce altogether – witness the Migration or Importation Clause, which denied to Congress the power to ban the importation of slaves until 1808:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Had the power to regulate foreign commerce not included the power to prohibit it, the Migration or Importation Clause would have been unnecessary.  And, as the authors detail, the fact that the same verb – “regulate” – defines Congress’s power over both foreign and interstate commerce has led modern courts and commentators to assume that the Constitution similarly granted to Congress the power to prohibit interstate commerce.

But a closer inspection of the history, the authors argue, demonstrates that the founders intended and members of the founding era understood that the same language granted dramatically different powers.  In large part, this was the result of the fact that Congress was granted power over foreign and interstate commerce to facilitate dramatically different purposes.  Power over foreign commerce would allow the states to present a united front against aggressive mercantilist powers such as England by, for example, prohibiting entry of goods or vessels into U.S. ports.  Power over interstate commerce, in contrast, was granted to facilitate that commerce by restricting protectionist and discriminatory state trade policies that had proliferated under the Articles of Confederation.

Ironically, the treatment of and debates over the importation of slaves provide perhaps the single most compelling evidence of the differing understandings of the two clauses in the founding era.  Delegates at the Philadelphia Convention immediately identified the threat that the power over foreign commerce presented to the continued importation of slaves, and delegates from Georgia and South Carolina fought bitterly to avoid that result, going so far as to “threaten[] to walk out of the convention if their concerns on this score were not addressed.”  All of which resulted in the adoption of the Migration or Importation Clause, barring any restriction on the importation of slaves until 1808.

In contrast, “Southern delegates were noticeably silent about that possibility that Congress would use its domestic commerce powers to restrict or prohibit the interstate sale or transport of . . . slaves.”

Southern ratifying conventions were likewise oblivious of any danger from that quarter, to a man: As the historian David Lightner notes [in Slavery and the Commerce Power: How the Struggle Against the Interstate Slave Trade Led to the Civil War], “[a]lthough the Antifederalists racked their brains to conjure up every possible objection to the Constitution, not one of them ever suggested that it opened the way for Congress to restrict the interstate movement of slaves."  Any number of historians have interpreted the silence of the Southern states on this issue as decisive proof that Congress’s interstate commerce powers were not intended by the Framers to empower Congress to prohibit the interstate sale or transport of slaves, or anything else.

Likewise, subsequent debates over slavery-related issues are a primary example of the continuing understanding in the Nineteenth Century that Congress lacked power to prohibit the interstate trade in slaves. A handful of “worried Southerners” first expressed their concern that Congress might attempt to ban interstate sale of slaves in 1807 during the debates over the importation ban passed that year. But the argument did not occur to anti-slavery advocates until the Missouri Crisis:

It was not until the 1819-1819 debates about whether slavery would be permitted in the new state of Missouri that slavery abolitionists came up with the argument that Congress had the constitutional authority to ban the interstate sale as well as the importation of slaves.  The fact that it took thirty years for abolitionist groups to recognize that the Commerce Clause could be interpreted to vest Congress with the same power to prohibit the interstate as the foreign slave trade suggests how strongly the assumption of the Founding Era generation dictated the opposite conclusion.

The Missouri Controversy also prompted James Madison to weigh in on the issue. In a November 27, 1819 letter to Robert Walsh, Madison argued that the evidence from the founding era and thereafter made clear that Congress did not have the power to ban the "removal, voluntary or involuntary, of slaves or freemen, from one to another part of the U. States;"

But whatever may have been intended by the term "migration" or the term "persons," it is most certain, that they referred exclusively to a migration or importation from other countries into the U. States; and not to a removal, voluntary or involuntary, of slaves or freemen, from one to another part of the U. States.  Nothing appears or is recollected that warrants this latter intention.  Nothing in the proceedings of the State conventions indicates such a construction there.  Had such been the construction it is easy to imagine the figure it would have made in many of the states, among the objections to the constitution, and among the numerous amendments to it proposed by the State conventions not one of which amendments refers to the clause in question.

Neither is there any indication that Congress have heretofore considered themselves as deriving from this Clause a power over the migration or removal of individuals, whether freemen or slaves, from one State to another, whether new or old: For it must be kept in view that if the power was given at all, it has been in force eleven years over all the States existing in 1808, and at all times over the States not then existing.  Every indication is against such a construction by Congress of their constitutional powers.  Their alacrity in exercising their powers relating to slaves, is a proof that they did not claim what they did not exercise.  They punctually and unanimously put in force the power accruing in 1808 against the further importation of slaves from abroad.  They had previously directed their power over American vessels on the high seas, against the African trade.  They lost no time in applying the prohibitory power to Louisiana, which having maritime ports, might be an inlet for slaves from abroad.  But they forebore to extend the prohibition to the introduction of slaves from other parts of the Union.  They had even prohibited the importation of slaves into the Mississippi Territory from without the limits of the U S in the year 1798, without extending the prohibition to the introduction of slaves from within those limits; altho' at the time the ports of Georgia and S Carolina were open for the importation of slaves from abroad, and increasing the mass of slavery within the U. States.

Ten years later, in a February 13, 1829 letter to Joseph C. Cabell, “Madison made even more explicit his view that the domestic and foreign commerce clauses were neither intended, nor should be construed, as vesting Congress with equivalent power."  Referring to "the 'power to regulate commerce among the several States,'" Madison asserted:

I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

Was James Madison Fibbing?

In the latter part of July 1788, the convention convened in Poughkeepsie to determine whether New York would ratify the United States Constitution was approaching conclusion.  Several days earlier, on July 17, 1788, anti-Constitution delegate Melancton Smith had proposed that the delegates ratify the Constitution.  But there was a significant catch: New York would expressly reserve the right to recede if the new Congress did not authorize, within a specified number of years, a convention under Article V for the consideration of amendments.  Smith's motion provided in relevant part (emphasis added):

[T]he Convention . . . have therefore agreed to assent to and ratify the said Constitution in the firmest confidence that an opportunity will be speedily given to revise and amend the said Constitution, in the mode pointed out in the fifth article thereof, expressly reserving nevertheless to this state a right to recede and withdraw from the said Constitution, in case such opportunity be not given within ____ years.

James Madison was then in New York City, having recently come from Virginia, where he had successfully led the pro-Constitution forces to victory at that state's ratification convention in late June.  On July 20, 1788, Madison wrote a response to a letter he had received from Alexander Hamilton in Poughkeepsie, in which Hamilton somewhat sheepishly advised Madison that he was inclined to go along with Smith's proposal as the best that could be done.  Madison fired back a letter in which he advised that Smith's proposal was unacceptable and had to be rejected (bold added):

To Alexander Hamilton
N. York Sunday Evening [July 20, 1788]

Yours of yesterday is this instant come to hand & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the New Congress by virtue of the power to admit new States, may be able & disposed to do in such case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more than my fervent wishes for your success & happiness.

[P.S.] This idea of reserving [a] right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection.

This post focuses on Madison's postscript, in which he stated that the Virginia Convention had considered "[t]his idea of reserving right to withdraw" similar to that proposed by Melancton Smith and had rejected it on the grounds that it was "a conditional ratification which was itself considered as worse than a rejection."  The bottom line question: was Madison's assertion true?  Or was Jemmy fibbing?

Madison's postscript in fact contains two assertions: (1) Did the Virginia Convention consider the reservation of a right to withdraw akin to Smith's?  And (2) Did the Virginia Convention reject it because it was a conditional ratification worse than a rejection?  We consider each in turn.

George Wythe's Motion

In her fine book Ratification: The People Debate the Constitution, 1787-1788, Pauline Maier identifies one instance in which the idea of ratification subject to a right to withdraw may have been presented at the Virginia Convention.

On Tuesday June 24, 1788 George Wythe took the floor of the Convention, then sitting as a committee of the whole, and moved for ratification.  The motion, however, was "complex."  Among other things, it described a number of essential rights that could not be abridged under the Constitution, such as liberty of conscience and freedom of the press.  It also specified (in the words of Prof. Maier) "that any imperfections in the Constitution should be addressed through the amending process it prescribed rather than endanger the union by seeking previous amendments."

Although the record is unclear, Wythe may also have proposed that Virginia's ratification would "cease to be obligatory" if recommended amendments were not acted on within two years:

Wythe then moved to his main resolutions: that, in the opinion of committee of the whole, the Constitution should be ratified, and that the convention should recommend amendments to the first federal Congress.  He perhaps asked that another another committee draw up those amendments.  According to Patrick Henry, the text of Wythe's motion, which [David] Robertson [the Reporter of the Convention] did not include in the Debates - also said that Virginia's ratification would "cease to be obligatory" if the amendments the convention proposed were not enacted.

A look at Volume 3 of Elliot's Debates confirms that the official report of the Virginia Convention did not, in fact, include a right of withdrawal in Wythe's motion.  However, the reporter himself admitted that Wythe "spoke so very low that his speech could not be fully comprehended."  For the record, here is Wythe's speech as recorded.  I have added additional paragraph breaks; the emphases are in the original:

Mr. WYTHE arose, and addressed the chairman; but he spoke so very low that his speech could not be fully comprehended.

He took a cursory view of the situation of the United States previous to the late war, their resistance to the oppression of Great Britain, and the glorious conclusion and issue of that arduous conflict. To perpetuate the blessings of freedom, happiness, and independence, he demonstrated the necessity of a firm, indissoluble union of the states. He expatiated on the defects and inadequacy of the Confederation, and the consequent misfortunes suffered by the people. He pointed out the impossibility of securing liberty without society, the impracticability of acting personally, and the inevitable necessity of delegating power to agents.

He then recurred to the system under consideration. He admitted its imperfection, and the propriety of some amendments. But the excellency of many parts of it could not be denied by its warmest opponents. He thought that experience was the best guide, and could alone develop its consequences. Most of the improvements that had been made in the science of government, and other sciences, were the result of experience. He referred it to the advocates for amendments, whether, if they were indulged with any alterations they pleased, there might not still be a necessity of alteration.

He then proceeded to the consideration of the question of previous or subsequent amendments. The critical situation of America, the extreme danger of dissolving the Union, rendered it necessary to adopt the latter alternative. He saw no danger from this. It appeared to him, most clearly, that any amendments which might be thought necessary would be easily obtained after ratification, in the manner proposed by the Constitution, as amendments were desired by all the states, and had already been proposed by the several states.

He then proposed that the committee should ratify the Constitution, and that whatsoever amendments might be deemed necessary should be recommended to the consideration of the Congress which should first assemble under the Constitution, to be acted upon according to the mode prescribed therein.

However, Prof. Maier correctly observes that Patrick Henry's subsequent remarks appear to confirm that he, at least, heard Wythe propose some sort of right to withdraw.  After Wythe concluded, Henry, the leader of the Anti forces at the convention, immediately rose to urge that Virginia should refuse to ratify the Constitution without prior amendments.  What responsible party, Henry argued, would enter into a compact without first obtaining assurances on the most critical points?  In this context, Henry indicated that (emphasis added):

According to the honorable member's proposal, the ratification will cease to be obligatory unless they accede to these amendments.  We have ratified it.  You have committed a violation, will they say.  They have not violated it.  We say, we will go out of it.  You are then reduced to a sad dilemma--to give up these three rights [Henry also complained that Wythe had identified only three rights as having been omitted], or leave the government.  This is worse than our present Confederation, to which we have hitherto adhered honestly and faithfully.  We shall be told we have violated it, because we have left it for the infringement and violation of conditions which they never agreed to be a part of the ratification.  The ratification will be complete.  The proposal is made by the party.  We, as the other, accede to it, and propose the security of these three great rights; for it is only a proposal. In order to secure them, you are left in that state of fatal hostility which I shall as much deplore as the honorable gentleman.  I exhort gentlemen to think seriously before they ratify this Constitution, and persuade themselves that they will succeed in making a feeble effort to get amendments after adoption.  

On balance, then, it appears that Madison did correctly relate "[t]his idea of reserving right to withdraw was started at Richmd."  But what about Madison's second assertion - that the "idea of reserving right to withdraw" was "considered as a conditional ratification which was itself considered as worse than a rejection"?  For the answer to that question, let's look at what became of Wythe's proposal.

The Response to Wythe's Proposal

As we have seen, Patrick Henry immediately attacked Wythe's proposal on the grounds that anything other than prior amendments would be ineffective and foolish:

With respect to subsequent amendments, proposed by the worthy member, I am distressed when I hear the expression. It is a new one altogether, and such a one as stands against every idea of fortitude and manliness in the states, or any one else. Evils admitted in order to be removed subsequently, and tyranny submitted to in order to be excluded by a subsequent alteration, are things totally new to me. But I am sure the gentleman meant nothing but to amuse the committee. I know his candor. His proposal is an idea dreadful to me. I ask, does experience warrant such a thing from the beginning of the world to this day? Do you enter into a compact first, and afterwards settle the terms of the government?

***

I cannot conclude without saying that I shall have nothing to do with it, if subsequent amendments be determined upon. Oppressions will be carried on as radically by the majority when adjustments and accommodations will be held up. I say, I conceive it my duty, if this government is adopted before it is amended, to go home. I shall act as I think my duty requires. Every other gentleman will do the same. Previous amendments, in my opinion, are necessary to procure peace and tranquillity. I fear, if they be not agreed to, every movement and operation of government will cease; and how long that baneful thing, civil discord, will stay from this country, God only knows: When men are free front restraint, how long will you suspend their fury? The interval between this and bloodshed is but a moment. The licentious and wicked of the community Will seize with avidity every thing you hold. In this unhappy situation, what is to be done? It surpasses my stock of wisdom. If you will, in the language of freemen, stipulate that there are rights which no man under heaven can take from you, you shall have me going along with you; not otherwise.

Henry's long (pp. 587-596) and vehement speech allowed the pro-Constitution forces to focus the substance of his proposed amendments and the danger of requiring that they be incorporated into the Constitution as a condition of ratification - while avoiding Wythe's proposal altogether.  Governor Edmund Randolph followed Henry's speech with an equally long speech of his own, in which he contrasted the catastrophe of conditional ratification with the efficacy of post-ratification recommended amendments, never once mentioning Wythe's compromise:

What are we about to do? To make this [prior amendments] the condition of our coming into this government. I hope gentlemen will never agree to this. If we declare that these amendments, and a bill of rights containing twenty articles, must be incorporated into the Constitution before we assent to it, I ask you whether you may not bid a long farewell to the Union? It will produce that deplorable thing--the dissolution of the Union--which no man yet has dared openly to advocate. . . .  Let gentlemen seriously ponder the calamitous consequences of dissolving the Union in our present situation. I appeal to the great Searcher of hearts, on this occasion, that we behold the greatest danger that ever happened hanging over us; for previous amendments are but another name for rejection. They will throw Virginia out of the Union, and cause heartaches to many of those gentlemen who may vote for them.

But let us consider things calmly. Reflect on the facility of obtaining amendments if you adopt, and weigh the danger if you do not. Recollect that many other states have adopted it, who wish for many amendments. I ask you if it be not better to adopt, and run the chance of amending it hereafter, than run the risk of endangering the Union. The Confederation is gone; it has no authority. If, in this situation, we reject the Constitution, the Union will be dissolved, the dogs of war will break loose, and anarchy and discord will complete the ruin of this country. Previous adoption will prevent these deplorable mischiefs. The union of sentiments with us in the adopting states will render subsequent amendments easy. I therefore rest my happiness with perfect confidence on this subject.

When Madison himself rose somewhat later (pp. 616-622) that same day, he likewise ignored Wythe's compromise, framing the choice as one between ratification with suggested amendments and requiring "certain alterations, as the previous condition of [Virginia's] accession":

Suppose eight states only should ratify, and Virginia should propose certain alterations, as the previous condition of her accession. If they should be disposed to accede to her proposition, which is the most favorable conclusion, the difficulty attending it will be immense. Every state which has decided it, must take up the subject again. They must not only have the mortification of acknowledging that they had done wrong, but the difficulty of having a reconsideration of it among the people, and appointing new conventions to deliberate upon it. They must attend to all the amendments, which may be dictated by as great a diversity of political opinions as there are local attachments. When brought together in one assembly, they must go through, and accede to, every one of the amendments.

The gentlemen who, within this house, have thought proper to propose previous amendments, have brought no less than forty amendments, a bill of rights which contains twenty amendments, and twenty other alterations, some of which are improper and inadmissible. Will not every state think herself equally entitled to propose as many amendments? And suppose them to be contradictory! I leave it to this Convention whether it be probable that they can agree, or agree to any thing but the plan on the table; or whether greater difficulties will not be encountered than were experienced in the progress of the formation of the Constitution.

***

I am persuaded that the gentlemen who contend for previous amendments are not aware of the dangers which must result. Virginia, after having made opposition, will be obliged to recede from it. Might not the nine states say, with a great deal of propriety, "It is not proper, decent, or right, in you, to demand that we should reverse what we have done. Do as we have done; place confidence in us, as we have done in one another; and then we shall freely, fairly, and dispassionately consider and investigate your propositions, and endeavor to gratify your wishes. But if you do not do this, it is more reasonable that you should yield to us than we to you. You cannot exist without us; you must be a member of the Union.

Wythe's proposal never resurfaced.  The next day, Wednesday June 25, 1788, after further unrelated debate, the Virginia Convention, sitting as committee of the whole, rejected, by a vote of 80 to 88, a resolution requiring the submission of proposed amendments to the other states before ratification.  The Convention then adopted, by a vote of 89 to 79, a resolution ratifying the Constitution with recommended amendments only:

Resolved, That it is the opinion of this committee, that the said Constitution be ratified. But in order to relieve the apprehensions of those who may be solicitous for amendments,-

Resolved, That it is the opinion of this committee, that whatsoever amendments may be deemed necessary, be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the 5th article thereof.

So was James Madison fibbing when he stated that "This idea of reserving right to withdraw was . . . considered [by the Virginia Convention] as a conditional ratification which was itself considered as worse than a rejection"?  I would say the answer is clearly "yes." The only person who addressed that aspect of Wythe's proposal was Patrick Henry.  And, as we have seen, he attacked it as ineffectual.  The clear import of Madison's comment to Hamilton was that the pro-Constitution forces at the Virginia Convention had objected to the proposal as "conditional" and "worse than a rejection."  The available record indicates that they did nothing of the sort.  Nor is there any reason to believe that the Virginia Convention rejected Wythe's proposal for that reason.

Six Answers for Seth Barrett Tillman

I posted recently on Lawprof Seth Barrett Tillman's fun article posing Six Puzzles for Professor Akhil Amar.

Now I see that at The Originalism Blog Lawprof Michael Ramsey has taken up the challenge: My Answers to Seth Barrett Tillman's Six Questions.

Enjoy!

The Three-Fifths Clause In the News!

As you may have heard, Emory University President James Wagner wrote a column earlier this year in which he praised the Three-Fifths Clause as an example of Constitutional compromise:

During a Homecoming program in September, a panel of eminent law school alumni discussed the challenges of governing in a time of political polarization—a time, in other words, like our own. The panel included a former US senator, former and current congressmen, and the attorney general for Georgia.

One of these distinguished public servants observed that candidates for Congress sometimes make what they declare to be two unshakable commitments—a commitment to be guided only by the language of the US Constitution, and a commitment never, ever to compromise their ideals. Yet, as our alumnus pointed out, the language of the Constitution is itself the product of carefully negotiated compromise.

One instance of constitutional compromise was the agreement to count three-fifths of the slave population for purposes of state representation in Congress. Southern delegates wanted to count the whole slave population, which would have given the South greater influence over national policy. Northern delegates argued that slaves should not be counted at all, because they had no vote. As the price for achieving the ultimate aim of the Constitution—“to form a more perfect union”—the two sides compromised on this immediate issue of how to count slaves in the new nation. Pragmatic half-victories kept in view the higher aspiration of drawing the country more closely together.

Some might suggest that the constitutional compromise reached for the lowest common denominator—for the barest minimum value on which both sides could agree. I rather think something different happened. Both sides found a way to temper ideology and continue working toward the highest aspiration they both shared—the aspiration to form a more perfect union. They set their sights higher, not lower, in order to identify their common goal and keep moving toward it.

The usual suspects called for President Wagner's head and he was forced to grovel:

A number of people have raised questions regarding part of my essay in the most recent issue of Emory Magazine. Certainly, I do not consider slavery anything but heinous, repulsive, repugnant, and inhuman. I should have stated that fact clearly in my essay. I am sorry for the hurt caused by not communicating more clearly my own beliefs. To those hurt or confused by my clumsiness and insensitivity, please forgive me.

With this background, and as one who has read a fair amount about the Three-Fifths Clause, I enjoyed running across this column by one brave soul who dared to speak truth to PC power:

Wagner’s travails strike a personal note: In some twenty years of teaching the Introduction to American Government course at the University of Illinois-Urbana I have often made the identical argument, that the three-fifths compromise was a brilliant political compromise to solve a grave political problem. I made that point in front of as many as 1400 students including many African American students (and who knows how many apprentice PC commissars). I informed them that the compromise was about representation of the states—the apportionment of seats in the House of Representatives—and in principle had nothing to do with slavery per se. I explained that anti-slavery New England delegates wanted slaves to count as zero for purposes of representation, while Southern delegates pressed to have each counted as a full person. Without these artful compromises, I said, both the slave states and New England would have left the Union.

And that wasn’t the end of my heresies. My lectures also explained how the Founders cleverly finessed the slavery issues with multiple compromises, including that the word “slave” never appeared in the Constitution.

***

Yes, everybody agrees that while many Founders had a low opinion of slaves, others believed that slavery was a horrible wrong, but the consensus was that all these slave-related constitutional compromises were unavoidable adjustments to an unpleasant political reality if the Union was to survive. Only the most strident ideologue would insist that the Constitutional Convention could have abolished slavery and still kept the Union. 

Information about the illustration, entitled Abolition of the Slave Trade, or the Man the Master (Britain 1789), may be found at the link.

Six Puzzles for Professor Akhil Amar

The always enjoyable and educational Seth Barrett Tillman has a short and fun (but very dense!) new paper out on SSRN for those of you who enjoy Constitutional puzzles: Six Puzzles for Professor Akhil Amar.  Here's the abstract:

The Constitution of 1787 uses a variety of language in regard to "office" and "officer."

It makes use of several variants on "office under the United States," and it also uses "officer of the United States," "office under the Authority of the United States," and, sometimes, just "officer" without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?

(And what was the Constitution referring to in Article VI's obscure "public trust under the United States" language?)

From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).

I contest their atextual position.

If you are interested in the "officers" dispute, or if you just want to know where the bodies are buried ... this paper is for you. "Six Puzzles for Professor Akhil Amar." Sometimes the title says all you really need to know.

INTRODUCTION: Dear Professor Amar, Here are six constitutional puzzles for your consideration. I would be very pleased if you responded, but I do not expect you to do so. I am sure you are very busy. Still, many, many people have read your books and articles, and heard your lectures and podcasts. And some of them are almost as smart and prolific (at least, collectively) as you are. So, even if you will not, perhaps, one or more of your many colleagues and students, readers and listeners would like to respond to one or more of these challenges.

Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers?
Puzzle 2. Does Impeachment Extend to Former “Officers”?
Puzzle 3. Who are the “Officers of the United States”?
Puzzle 4. Is the President an “Officer of the United States”?
Puzzle 5. Is the Presidency an “Office . . . under the United States”?
Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”

Edmund Randoph's Opinion on the Recess Appointments Clause

As you may have heard, the United States Circuit Court for the District of Columbia recently used originalist analysis to hold that recess appointments that President Obama made to the NLRB violated the Recess Appointments Clause of the Constitution.  All three of the judges on the panel held that the Clause permitted the president to make recess appointments only during inter-session recesses of the Senate.  Two of the three judges also held that the president had the power to make recess appointments only when the vacancy arose during that recess (the third judge found it unnecessary to reach that issue).

For those of you interested in the subject - which should reach the Supremes fairly soon, I would think - I heartily recommend (in addition to the court's opinion), Lawprof Michael B. Rappaport's article The Original Meaning of the Recess Appointments Clause, which discusses both issues at length.

Both the D.C. Circuit and Prof. Rappaport discuss a July 7, 1792 opinion that Attorney General Edmund Randolph delivered to Secretary of State Thomas Jefferson, in which Randolph opined that both the text and the "Spirit" of the Constitution led to the conclusion that the president could not issue a commission during a recess unless the vacancy "happened" - that is, arose - during that recess.  Because I like to see things for myself, I looked around and found that the printed text of Randolph's opinion does not appear to be readily available on the internet.

I did, however, discover that the Library of Congress site does have a copy of Randolph's original handwritten letter to Jefferson.  Because the letter does not seem be available in easily readable form, I have transcribed it (as best I can) for your reading pleasure.  The statute at issue in the opinion is An Act establishing a Mint, and regulating the Coins of the United States, enacted April 2, 1792.  Section 1 of the Act established a "mint for the purpose of national coinage," and provided "that for the well conducting of the business of the said mint" there would be among other officers a "Chief Coiner."

As the opinion explains, no Chief Coiner was nominated by the president or approved by the Senate before the Senate recessed on May 8, 1792.  In July Jefferson asked Randolph to provide an opinion on whether President Washington could make a recess appointment to the position.

Although the opinion indicates that there were good reasons why a Chief Coiner could not be nominated before the Senate recessed, it does not explain what those reasons were.  My guess - and it is just a guess - is that the difficulty lay in finding a qualified candidate who could comply with Section 5 of the Act, which required the Chief Coiner to post a bond with the Secretary of the Treasury in the amount of $10,000, "with condition for the faithful and diligent performance of the duties of his office."

Here then is Randolph's opinion.  Emphases are in the original:

The answer of the attorney general of the United States to the question propounded to him by the Secretary of State on the following case

By the constitution, the President shall nominate and by and with the advice and consent of the Senate shall appoint Ambassadors, &c, and all other officers of the United States whose appointments are not therein otherwise provided, and which shall be established by law.  He has also power to fill up vacancies, that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

The act establishing a mint directs, that for the well conducting of the business there shall be among other officers a chief Coiner.

This act passed on the 2nd of April 1792 and the Senate which concurred was sitting daily from thence until the 8th of May following.  But the chief Coiner was not nominated during their then sitting, tho' a Director was appointed.

The question is, whether the President can, constitutionally, during  the now recess of the Senate grant to a chief Coiner a Commission which shall expire at the end of their next session

Is there a vacancy in the office of chief Coiner?  An ofice is vacant when no officer is in the exercise of it.  So that it is no less vacant when it has never been filled up, than it is upon the death or resignation of an Incumbent.  The office of Chief Coiner is therefore vacant.

But is it a vacancy which has happened during the recess of the Senate?  It is now the same and no other vacancy, than that, which existed on the 2nd of April 1792.  It commenced therefore on that day or may be said to have happened on that day.

The Spirit of the Constitution favors the participation of the Senate in all appointments.  But as it may be necessary oftentimes to fill up vacancies, when it may be inconvenient to summon the senate a temporary commission may be granted by the President.  This power then is to be considered as an exception to the general participation of the Senate.  It ought too to be interpreted strictly.  For altho' I am well aware, that a chief Coiner for satisfactory reasons could not have been nominated during the last session of the Senate; yet every possible delicacy ought to be observed in transferring power from one order in government to another.  It is true that the Senate may finally disapprove.  But they are not left to a judgment absolutely free, when they are to condemn the appointment of a man actually in Office.  In some instances indeed this must be the case; but it is in them a case of necessity only; as where the Officer has died, or resigned during the recess, or a person appointed during the Session shall not notify his refusal to accept, until the recess.

It may well be asked in what the power of now for the first time granting a temporary commission for this new office is distinguishable in principle from granting a commission to one person in consequence of another who has been approved by the Senate, refusing to accept the first appointment to a new office?  Is not the Vacancy under these circumstances once which has never been filled up and therefore in the same predicament, as the Office of Coiner?  However a refined construction may make the cases approach each other, they are different in their relation to the constitution.  In the one, the Senate have had a full opportunity to shew their sense.  In the other not.  In the one the vacancy was filled up, as far as the President and Senate could go; and the Vacancy may be said to have happened during the Recess in consequence of the Refusal.  In the other, not.

An analogy has been suggested to one between a Minister to foreign court and the appointment now under consideration.  With much strength it has contended that a Minister may be appointed who, or whose mission was never mentioned to the Senate.  But, mark the peculiar condition of Minister.  The President is allowed by law to spend a limited sum on diplomatic appointments.  No particular courts are designated; but they are consigned [?] by the Constitution to his [?].  The truth then is that independently of congress, or either house the President may at any time during the Recess declare the court and the grade.  But this power would nugatory during the Recess if he could not also name the Person.  How unlike is this example to that of the Coiner, in which the office can be created by congress alone; and in the appointment to which the Senate might have an opportunity, of concurring  at the Session when the law was passed creating it?

My opinion upon the whole is, that the President cannot now grant a temporary commission to a Chief Coiner.

/s/ Edm. Randolph
July 7 1792

James Madison and the Federal Veto: Pinckney's Motion Defeated

 Charles Pinckney's June 8, 1787 motion to expand the federal veto to encompass "all laws which they [the Federal Legislature] shd. judge to be improper", discussed in my last post on the subject, immediately drew fire.  Hugh Williamson was first, declaring that he "was agst. giving a power that might restrain the States from regulating their internal police."  And at the end of the day Pierce Butler of South Carolina was "vehement agst." the suggestion.

Elbridge Gerry of Massachusetts articulated a more nuanced opposition.  In part, he seemed to relate his objection to the idea that the federal government was one of limited powers, and that there could be certain specified powers denied to the states.  A federal veto was acceptable, but only if it was limited to those specific areas, such as the emission of paper money, which should be "amg. the exclusive powers of Congress":

Mr. GERRY cd. not see the extent of such a power, and was agst. every power that was not necessary. He thought a remonstrance agst. unreasonable acts of the States wd. [restrain] them If it shd. not force might be resorted to. He had no objection to authorize a negative to paper money and similar measures. When the confederation was depending before Congress, Massachussetts was then for inserting the power of emitting paper money amg. the exclusive powers of Congress.

And Roger Sherman of Connecticut seemed to pick up Gerry's suggestion.  He "thought the cases in which the negative ought to be exercised, might be defined" and suggested that the delegates defer the issue "till a trial at least shd. be made for that purpose."

James Wilson of Pennsylvania disputed these assertions.  The principle of a federal veto was "right."  Unless the states conceded their sovereignty they would be living like savages in a state of nature with each other.  "A definition of the cases in which the Negative should be exercised, is impracticable."  Wilson went on to deliver a speech that came close to advocating elimination of the states altogether:

Among the first sentiments expressed in the first Congs. one was that Virga. is no more, that Masts. is no [more], that Pa. is no more &c. We are now one nation of brethren. We must bury all local interests & distinctions. This language continued for some time. The tables at length began to turn. No sooner were the State Govts. formed than their jealousy & ambition began to display themselves. Each endeavoured to cut a slice from the common loaf, to add to its own morsel, till at length the confederation became frittered down to the impotent condition in which it now stands. Review the progress of the articles of Confederation thro' Congress & compare the first & last draught of it. To correct its vices is the business of this convention. One of its vices is the want of an effectual controul in the whole over its parts. What danger is there that the whole will unnecessarily sacrifice a part? But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?

John Dickinson of Delaware similarly saw a fundamental either/or choice.  One party or the other had to have controlling power, and he believed that the "Natl. Govt." should prevail:

Mr. DICKENSON deemed it impossible to draw a line between the cases proper & improper for the exercise of the negative. We must take our choice of two things. We must either subject the States to the danger of being injured by the power of the Natl. Govt. or the latter to the danger of being injured by that of the States. He thought the danger greater from the States. To leave the power doubtful, would be opening another spring of discord, and he was for shutting as many of them as possible.

Unfortunately for proponents of the motion, Wilson's (and Dickinson's?) comments threatened to enmesh the veto issue in the large states vs. small states issue, drawing a stinging rebuke from Delaware delegate Gunning Bedford:

Mr. BEDFORD. In answer to his colleague's question where wd. be the danger to the States from this power, would refer him to the smallness of his own State which may be injured at pleasure without redress. It was meant he found to strip the small States of their equal right of suffrage. In this case Delaware would have about 1/90 for its share in the General Councils, whilst Pa. & Va. would posses 1/3 of the whole. Is there no difference of interests, no rivalship of commerce, of manufactures? Will not these large States crush the small ones whenever they stand in the way of their ambitious or interested views. This shews the impossibility of adopting such a system as that on the table, or any other founded on a change in the principle of representation. And after all, if a State does not obey the law of the new System, must not force be resorted to as the only ultimate remedy, in this as in any other system. It seems as if Pa. & Va. by the conduct of their deputies wished to provide a system in which they would have an enormous & monstrous influence. Besides, How can it be thought that the proposed negative can be exercised? are the laws of the States to be suspended in the most urgent cases until they can be sent seven or eight hundred miles, and undergo the deliberations of a body who may be incapable of Judging of them? Is the National Legislature too to sit continually in order to revise the laws of the States?

James Madison saw that the tide was turning against the amendment.  Seeking to retrieve the situation, he reiterated that some sort of veto power was essential, while suggesting that the details might require further attention.  At the same time, he again explicitly raised and unwisely praised the British precedent:

Mr. MADISON observed that the difficulties which had been started were worthy of attention and ought to be answered before the question was put. The case of laws of urgent necessity must be provided for by some emanation of the power from the Natl. Govt. into each State so far as to give a temporary assent at least. This was the practice in Royal Colonies before the Revolution and would not have been inconvenient, if the supreme power of negativing had been faithful to the American interest, and had possessed the necessary information. He supposed that the negative might be very properly lodged in the senate alone, and that the more numerous & expensive branch therefore might not be obliged to sit constantly.

Seeking to counter the small-states concerns expressed by Bedford, Madison asked whether the small states would be better off with no central government at all:

[Madison] asked Mr.[Bedford] what would be the consequence to the small States of a dissolution of the Union wch. seemed likely to happen if no effectual substitute was made for the defective System existing, and he did not conceive any effectual system could be substituted on any other basis than that of a proportional suffrage? If the large States possessed the avarice & ambition with which they were charged, would the small ones in their neighbourhood, be more secure when all controul of a Genl. Govt. was withdrawn.

Madison's last-ditch effort failed to save the day.  Pinckney's amendment to expand the veto power was defeated.  Only three states, all of them large (Massachusetts, Pennsylvania and Virginia) voted in favor; seven states (Connecticut, New York, New Jersey, Maryland, North Carolina, South Carolina and Georgia) opposed; and one state (Delaware) was evenly divided.

Publius Valerius Publicola and the Federalist Papers

You probably know that Alexander Hamilton, John Jay and James Madison wrote the Federalist Papers under the pseudonym "Publius." Publius was a common Roman name, and I always assumed that the Federalist authors used it generically, to invoke the aura of the Roman republic, not to refer to a specific person.

But today I heard that the Federalist authors did mean to summon up the image of a particular Roman. A quick check of the Wikipedia entry for the Federalist Papers corroborates that at least one academic has asserted that Hamilton decided to use the name "in honor of" a specific Roman: Publius Valerius Publicola.

Hamilton chose "Publius" as the pseudonym under which the series would be written. While many other pieces representing both sides of the constitutional debate were written under Roman names, Albert Furtwangler contends that "'Publius' was a cut above 'Caesar' or 'Brutus' or even 'Cato.' Publius Valerius was not a late defender of the republic but one of its founders. His more famous name, Publicola, meant 'friend of the people.'" It was not the first time Hamilton had used this pseudonym: in 1778, he had applied it to three letters attacking Samuel Chase.

Publicola, a legendary figure from the dawn of the Roman republic, helped drive out the last of the kings and later sponsored a law that permitted the murder of anyone who tried to become king. Here's Plutarch:

But although in these particulars [Publicola] showed himself a popular and moderate lawgiver, in the case of an immoderate offence he made the penalty severe. For he enacted a law by which any one who sought to make himself tyrant might be slain without trial, and the slayer should be free from blood-guiltiness if he produced proofs of the crime. For although it is impossible for one who attempts so great a task to escape all notice, it is not impossible for him to do so long enough to make himself too powerful to be brought to trial, which trial his very crime precludes. He therefore gave any one who was able to do so the privilege of anticipating the culprit's trial.

But, if the story is true, I can't help wondering whether Hamilton settled on the name because he enjoyed the delicious irony that the most famous tale about Publicola revealed the inherently irrational nature of an insufficiently controlled populace.

As the story goes, having established his devotion to republicanism beyond any possible doubt, Publicola built a house on a height above Rome called the "Velia". The Roman public promptly drew the bizarre conclusion that Publicola was going to use the house as base from which to establish himself as king. Here's Livy:

After the battle had gone in this way [a battle in which Publicola had led a Roman army which defeated an Etruscan attempt to reinstate the last king], so great a panic seized Tarquin and the Etruscans that the two armies of Veii and Tarquinii, on the approach of night, despairing of success, left the field and departed for their homes. . . .

At all events the Romans left the field as victors; the Etruscans regarded themselves as vanquished, for when daylight appeared not a single enemy was in sight. P. Valerius [Publicola], the consul, collected the spoils and returned in triumph to Rome. He celebrated his colleague's obsequies with all the pomp possible in those days, but far greater honour was done to the dead by the universal mourning, which was rendered specially noteworthy by the fact that the matrons were a whole year in mourning for him, because he had been such a determined avenger of violated chastity.

After this the surviving consul, who had been in such favour with the multitude, found himself - such is its fickleness - not only unpopular but an object of suspicion, and that of a very grave character. It was rumoured that he was aiming at monarchy, for he had held no election to fill [Lucius Junius] Brutus' place [Brutus had been killed in the battle], and he was building a house on the top of the Velia, an impregnable fortress was being constructed on that high and strong position.

The consul felt hurt at finding these rumours so widely believed, and summoned the people to an assembly. As he entered the "fasces" were lowered, to the great delight of the multitude, who understood that it was to them that they were lowered as an open avowal that the dignity and might of the people were greater than those of the consul. Then, after securing silence, he began to eulogise the good fortune of his colleague [Brutus] who had met his death, as a liberator of his country, possessing the highest honour it could bestow, fighting for the commonwealth, whilst his glory was as yet undimmed by jealousy and distrust. Whereas he himself had outlived his glory and fallen on days of suspicion and opprobrium; from being a liberator of his country he had sunk to the level of the Aquilii and Vitellii.

"Will you," he cried, "never deem any man's merit so assured that it cannot be tainted by suspicion? Am I, the most determined foe to kings, to dread the suspicion of desiring to be one myself? Even if I were dwelling in the Citadel on the Capitol, am I to believe it possible that I should be feared by my fellow-citizens? Does my reputation amongst you hang on so slight a thread? Does your confidence rest upon such a weak foundation that it is of greater moment where I am than who I am? The house of Publius Valerius shall be no check upon your freedom, your Velia shall be safe. I will not only move my house to level ground, but I will move it to the bottom of the hill that you may dwell above the citizen whom you suspect. Let those dwell on the Velia who are regarded as truer friends of liberty than Publius Valerius."

All the materials were forthwith carried below the Velia and his house was built at the very bottom of the hill where now stands the temple of Vica Pota.

And here's Plutarch:

But that which the rather displeased and offended the people in Valerius was this. Brutus, whom they regarded as the father of their liberties, would not consent to rule alone, but once and again chose a colleague to rule with him. "But this Valerius," they said, "in concentrating all power upon himself, is not a successor to the consulate of Brutus, to which he has no right, but to the tyranny of Tarquin. Yet why should he extol Brutus in words, while in deeds he imitates Tarquin, descending to the forum alone, escorted by all the rods and axes together, from a house no less stately than the royal house which he demolished?"

For, as a matter of fact, Valerius was living in a very splendid house on the so‑called Velia. It hung high over the forum, commanded a view of all that passed there, and was surrounded by steeps and hard to get at, so that when he came down from it the spectacle was a lofty one, and the pomp of his procession worthy of a king.

Accordingly, Valerius showed what a good thing it is for men in power and high station to have ears which are open to frankness and truth instead of flattery. For when he heard from his friends, who spared him no detail, that he was thought by the multitude to be transgressing, he was not obstinate nor exasperated, but quickly got together a large force of workmen, and while it was still night tore the house down, and razed it all to the ground.

In the morning, therefore, the Romans saw what had happened, and came flocking together. They were moved to love and admiration by the man's magnanimity, but were distressed for the house, and mourned for its stately beauty, as if it had been human, now that envy had unjustly compassed its destruction. They were also distressed for their ruler, who, like a homeless man, was now sharing the homes of others. For Valerius was received into the houses of his friends until the people gave him a site and built him a house, of more modest dimensions than the one he had lived in before, where now stands the temple of Vica Pota, so‑called.

Wishing now to make not only himself but also the government, instead of formidable, submissive and agreeable to the multitude, he removed the axes from the lictors' rods, and when he came into the assembly, inclined and lowered the rods themselves to the people, emphasizing the majesty of the democracy. This custom the consuls observe to this day. And before the multitude were aware of it, he had succeeded, not by humbling himself, as they thought, but by checking and removing their envious feelings through such moderation on his part, in adding to his real influence over them just as much as he had seemed to take away from his authority, and the people submitted to him with pleasure and bore his yoke willingly.

They therefore called him Publicola, a name which signifies people-cherisher. This name prevailed over the older names which he had borne, and it is the name which I shall use for him in the remainder of this Life.

Resolution VI of The Virginia Plan

Lawprof Kurt T. Lash has written some great articles on the Ninth and Tenth Amendments, among other things. A new article is always a treat. I haven't read it yet, but I see via Lawrence Solum's Legal Theory Blog that the good professor has a new article up at SSRN: "Resolution VI": The Virginia Plan and Authority to Resolve "Collective Action Problems" Under Article I, Section 8. The abstract is as follows:

In the past few years, a number of influential constitutional scholars such as Jack Balkin, Robert Cooter, Andrew Koppelman, Neil Siegel and others have called for doing away with the traditional principle of judicially limited enumerated power and replacing it with the principle declared in Resolution VI of the Virginia Plan originally introduced in the Philadelphia Constitutional Convention. According to Resolution VI, federal power should be construed to reach all matters involving the “general interests of the Union,” those “to which the “states separately are incompetent” and those affecting national “harmony.” Resolution VI advocates maintain that, under this principle, Congress has power to regulate all collective action problems of national importance. In support of their claim, Resolution VI advocates argue that the members of the Philadelphia Convention adopted Resolution VI and sent the same to the Committee of Detail with the expectation that the resulting text would be based on this overriding principle of national power, and that they accepted the text of Article I, Section 8 as the enactment of Resolution VI. These scholars also claim (or rely on the claim) that Philadelphia Convention member James Wilson publicly declared during the ratification debates that the framers based Article I, Section 8 on the principle of Resolution VI.

A close reading of the historical sources, however, shows that the framers did not view Article I, Section 8 as having operationalized the general principle of Resolution VI and allowing federal action in all cases in which the “states separately are incompetent.” In fact, they expressly stated otherwise. Even more importantly, it turns out that there is no historical evidence that Resolution VI played any role whatsoever during the ratification debates. Claims to the contrary are based on an error of historical fact.

For those who are not familiar with it, the full text of Resolution VI, as reprinted in Farrand's Records, provided as follows:

6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in all which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duties under the articles thereof.

Prof. Solum awards the article his "Download of the Week" prize and opines, "Highly recommended. Download it while its hot!" I've already done so.

Henry Clay and the First Bank: The Cow and the Turkey

In the early 1820s William Harris Crawford of Georgia would become a conservative, almost winning the presidency in 1824. But all that lay in the future. In February 1811, he was a staunch defender of the First Bank of the United States in the Senate, "deliver[ing] a brilliant speech is support of the bank, which even [Nathaniel] Macon called 'a better argument in favor of it on constitutional ground than ever has been made. . . .'"

In his February 15, 1811 Senate speech opposing the extension of the First Bank's charter, Henry Clay, having disposed of William Branch Giles, next turned to Sen. Crawford's complaint, as paraphrased by Clay, "that this has been made a party question." In fact, Clay pointed out, the original bank bill, passed in 1791, "was one of the causes of the political divisions of this country" and had spurred the formation of the Jeffersonian Republicans. It was Crawford, not opponents of the bank, who was playing politics and abandoning the Republican party:

And if, on this occasion, my worthy friend from Georgia has gone over over into the camp of the enemy, is it kind in him to look back upon his former friends, and rebuke them for the fidelity with which they adhere to their old principles?

Taking advantage of the fact that Crawford and other proponents had cited different provisions of the Constitution as the source of Congress's power to create the bank, Clay mocked their attempts to locate "some congenial spot" in which to locate "[t]his vagrant power":

This vagrant power to erect a bank, after having wandered throughout the whole Constitution in quest of some congenial spot whereupon to fasten, has been at length located by the gentleman from Georgia on that provision, which authorizes Congress to lay and collect taxes, &c. In 1791, the power is referred to one part of the instrument; in 1811, to another. Sometimes it is alleged to be deducible from the power to regulate commerce. Hard pressed here, it disappears, and shows itself under the grant to coin money.

Clay's arguments had to this point been largely playful. But now he became more serious. The Constitution granted Congress limited and defined powers. "The power to charter companies is not specified in the grant." And while the Necessary and Proper Clause may effectively grant implied powers, those powers "must be necessary, and obviously flow from the enumerated power with which it is allied."

What is the nature of this Government? It is emphatically federal, vested with an aggregate of specified powers for general purposes, conceded by existing sovereignties, who have themselves retained what is not so conceded. It is said that there are cases in which it must act on implied powers. This is not controverted, but the implications must be necessary, and obviously flow from the enumerated power with which it is allied.

Emphasizing the fearsome powers of corporations, Clay denied that the power to charter companies could be created by mere implication:

The power to charter companies is not specified in the grant, and I contend is of a nature not transferable by mere implication. It is one of the most exalted attributes of sovereignty. In the exercise of this gigantic power we have seen an East India Company created, which has carried dismay, desolation, and death throughout one of the largest portions of the habitable world. A company which is, in itself, a sovereignty - which has subverted empires and set up new dynasties - and has not only made war, but war against its legitimate sovereign!

Examples of implied powers cited by supporters - such as "the power 'to make rules and regulations for the government of the land and naval forces,' which, it is said, is incidental to the power to raise armies and provide a navy" - only proved Clay's point, for they demonstrated "[h]ow extremely cautious the Convention were to leave as little as possible to implication."

In all cases where incidental powers are acted upon, the principal and incidental ought to be congenial with each other, and partake of a common nature. The incidental power ought to be strictly subordinate and limited to the end proposed to be attained by the specified power. In other words, under the name of accomplishing one object which is specified, the power implied ought not to be made to embrace other objects, which are not specified in the Constitution.

Applying these principals might permit the creation of a bank of limited powers. But the First Bank had, and was proposed to have, powers that extended far beyond any enumerated end:

If then you could establish a bank to collect and distribute the revenue, it ought to be expressly restricted to the purpose of such collection and distribution. It is a mockery, worse than usurpation, to establish it for a lawful object, and then extend it to other objects which are not lawful. In deducing the power to create corporations, such as I have described it, from the power to collect taxes, the relation and condition of principal and incident are prostrated and destroyed. The accessory is exalted above the principal. As well might it be said that the great luminary of day is an accessory, a sattelite [sic] to the humblest star that twinkles forth its feeble light in the firmament of the heavens!

In order to illustrate his point Clay resorted to an analogy. I'm not sure it works, but who can resist a story about a cow and a turkey?

Like the Virginia justice, you tell the man, whose turkey had been stolen, that your book of precedents furnishes no form for his case, but then you will grant him a precept to search for a cow, and when looking for that he may possibly find his turkey! You say to this corporation, we cannot authorize you to discount - to emit paper - to regulate commerce, &c. No! Our book has no precedents of that kind. But then we can authorize you to collect the revenue, and, while occupied with that, you may do whatever else you please!

About the illustration, entitled A Foot-Race (1824):

A figurative portrayal of the presidential race of 1824. A crowd of cheering citizens watch as candidates (left to right) John Quincy Adams, William Crawford, and Andrew Jackson stride toward the finish. Henry Clay has dropped from the race and stands, hand on head, on the far right saying, "D--n it I cant save my distance--so I may as well "draw up."" He is consoled by a man in riding clothes, "Well dont distress yourself--there'll be some scrubbing by & by & then you'll have a chance." Assorted comments come from the crowd, reflecting various sectional and partisan views. A Westerner with stovepipe hat and powder horn: "Hurra for our Jacks-"son."" Former President John Adams: "Hurra for our son "Jack."" Two men in coachmen's livery: "That inne-track fellow [Crawford] goes so well; that I think he must have got the better of the bots [boss?]." and "Like enough; but betwixt you & I--I dont think he'll ever get the better of the "Quinsy."" A ragged Irishman: "Blast my eyes if I dont "venter" a "small" horn of rotgut on that "bald filly" in the middle [Adams]." A Frenchman: "Ah hah! Mon's Neddy I tink dat kick on de "back of you side" is worse den have no dinner de fourt of july." In the left background is a platform and an inaugural scene, the "Presidential Chair" with a purse "

"In every tax, your object should be revenue"

In The Old Republicans, Norman K. Risjord cites a speech delivered by Virginia Rep. Alexander Smyth on Thursday January 30, 1823 as "the first time it was openly asserted on the House floor" "that the protective tariff was unconstitutional." Rep. "Smyth maintained that the power to lay and collect taxes was for purposes of revenue only; Congress had no power to protect domestic manufactures":

Sir, I consider the committee who brought in this bill as an unconstitutional committee. Show me your authority to encourage domestic manufactures. You have nothing to do with manufactures but to pass a law for giving up runaway apprentices; and nothing to do with agriculture, but to pass a law for giving up runaway slaves.

You have power "to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States." The power granted to you is a power to raise revenue for the purpose of executing your granted powers; not a power to impose taxes to diminish the revenue, thereby to encourage and protect domestic manufactures. If you levy taxes for any other purpose but to raise revenue bona fide, you abuse your power.

You have a choice of subjects of taxation, but, in every tax, your object should be revenue. If, by the imposition of the duties necessary to the raising an adequate revenue, manufactures are encouraged, it is a beneficial consequence. The Convention who former the Constitution, have never mentioned the subject of manufactures; yet, they had under consideration a proposition to give the General Government a controlling power over manufactures, which they appear to have rejected. [Here Mr. S. read some passages from the Journal of the Convention to show that such a proposition was, with others, referred to a committee; that several of the other propositions, which were referred with it, were inserted in the Constitution; but this was omitted.]

"The Goviner of the universe"

I've been reading Pauline Maier's fine Ratification: The People Debate the Constitution, 1787-1788 slowly and savoring it. I've also been reading it mostly backwards. I started at the beginning, but then skipped forward to New York, followed by Virginia, back to Pennsylvania, then forward to Connecticut and Massachusetts, which is where I am now.

Don't know what to make of this, however. Prof. Maier reports that the Massachusetts town of Ashfield, considering back in 1776 the form of government that the state should adopt, came up with a somewhat "unconventional" answer:

Massachusetts townsmen also had a proven capacity to think in unconventional ways. In 1776, for example, the people of Ashfield in western Massachusetts said they wanted no "Goviner but the Goviner of the universe and under him a States Ginaral to Consult with the wrest of the united States for the Good of the whole" . . ..

The lesson that Prof. Maier draws is that not all people in western Massachusetts - the neighborhood of Daniel Shays' Rebellion - were "die hard localists. Some, at least, had a powerful sense of national identity."