an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Necessary and Proper Clauses, Part 3: James Wilson's Contribution to the Virginia Plan
In my previous posts (here and here), I drew attention to the frequently neglected fact that there are, in effect, three Necessary and Proper clauses in the Constitution, and I sketched a number of claims about the origin and meaning of these clauses, highlighting the distinction between the Foregoing Powers and All Other Powers provisions. I made no sustained effort, however, to justify any of these claims or to consider plausible counterarguments. In this post, I’ll begin the process of defending them and filling in some of the relevant details.
A useful starting point is the critical language of Resolution VI of the Virginia Plan, which gave Congress the power “to legislate in all cases to which the States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.”
This proposal was adopted by the convention and sent to the Committee of Detail, which then produced a list of enumerated powers that later became Article I, Section 8. As a result, historians and jurists have long recognized the importance of Resolution VI for interpreting the conceptions of federalism that motivated the Founders. In recent years, these ideas have been given renewed attention in work by Jack Rakove, Joseph Lynch, Jack Balkin, Kurt Lash, Robert Cooter & Neil Siegal, and many other writers, including my friend and colleague Randy Barnett.
By contrast, the origin of this critical passage in Resolution VI has received little or no attention. Instead, most scholars have simply assumed that all of the key provisions of the Virginia Plan, including this one, originated with James Madison.
The assumption rests mainly on a pair of letters Madison wrote to Edmund Randolph and George Washington in April, 1787. These letters clearly prove that Madison played a leading role in drafting the Virginia Plan. The one-to-one correspondence between ideas outlined in Madison’s letters and specific resolutions proposed by the Virginia Plan admits of no other explanation.
In at least one crucial respect, however, the parallel between Madison’s letters and the Virginia Plan is incomplete: the powers of the national legislature.
In his April 8 letter to Randolph, Madison sketched his ideas on this topic in these terms:
Let the national Government be armed with a positive & compleat authority in all cases where uniform measures are necessary. As in trade &c. &c. Let it also retain the powers which it now possesses.
Let it have a negative in all cases whatsoever on the Legislative Acts of the States as the K. of G. B. heretofore had. This I conceive to be essential and the least possible abridgement of the State Sovereignties. Without such a defensive power, every positive power that can be given on paper will be unavailing. It will give internal stability to the States. There has been no moment since the peace at which the federal assent would have been given to paper money &c. &c. (9 PJM 370)
On April 16, Madison sent a revised version of the same proposals to George Washington:
I would propose next, that in addition to the present federal powers, the national Government should be armed with a positive & compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports and imports, the fixing the terms and forms of naturalization, &c. &c.
Over and above this positive power, a negative in all cases whatsoever on the Legislative Acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions. Without this defensive power, every positive power that can be given on paper will be evaded or defeated. The States will continue to invade the national jurisdiction, to violate treaties and the law of nations & to harass each other with rival and spiteful measures dictated by mistaken views of interest. (9 PJM 383-84, emphasis original)
Compare these passages with Resolution VI of the Virginia Plan, whose separate clauses are numbered below for easy reference:
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 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 duty under the articles thereof. (1 Farrand 21, emphasis added)
The first clause on the right of originating acts is orthogonal to the present discussion. The second clause vesting Congress with the legislative power it possessed under the Articles of Confederation clearly derives from Madison’s letters to Randolph and Washington. So does the fourth clause giving Congress a veto on state laws. The latter provision is also clearly anticipated in Madison’s March 19 letter to Thomas Jefferson, in which he proposes “to arm the federal head with a negative in all cases whatsoever on the local Legislatures” (9 PJM 318).
The right of coercion in the fifth clause, which is not mentioned in the excerpts quoted above, also can be found in Madison’s pre-convention correspondence. For example, reaffirming a view he had espoused in Congress as early as 1781, Madison wrote to Washington on April 16 that “the right of coercion should be expressly declared” (9 PJM 385).
But where does the italicized third clause in Resolution VI come from?
One possibility is that it is a gloss on Madison’s proposal, made in various forms to Jefferson, Randolph, and Washington, that “the national legislature should be armed with a positive & compleat authority in all cases which require uniformity” (9 PJM 383). Incompetence and harmony, however, are different concepts than uniformity. They raise distinct issues and would be litigated differently in an actual case or controversy, for example. The precise vocabulary of incompetence and harmony does not appear at all in Madison’s correspondence in the spring of 1787. How then did this language find its way into the Virginia Plan?
The most likely source appears to be James Wilson’s 1785 pamphlet, “Considerations on the Bank of North America.”
Last February, in prepared remarks given at a Georgetown Law faculty retreat, I drew attention to the defense of implied powers in Wilson’s pamphlet and its likely impact on the Constitution’s critically important All Other Powers provision, which gives Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof.” In my last post, I suggested that this provision has been unduly neglected in recent commentary on the N&P Clause, a theme to which I will return. Here I wish to focus attention on the probable influence of Wilson’s bank essay on the Virginia Plan, which until now appears to have been overlooked by historians and legal scholars.
The legal question presented in Wilson’s essay was whether Congress had the power to incorporate a national bank. The argument that it did not was simple and plausible enough. First, no such power was expressly given by the Articles of Confederation. Second, an implied power to do so was clearly foreclosed by Article 2, which limited Congress to those powers “expressly delegated” to it and reserved all other powers to the states.
Wilson denied this conclusion, supplying a novel argument that exercised a powerful influence on Hamilton, Madison, Gouverneur Morris, and other Federalist leaders. The power to incorporate a truly national bank, he reasoned, is not a power possessed by any individual state. Therefore, it is not a power the states could delegate in the first place. On the contrary, this power must derive from the union of the individual states. A national power for national purposes, it must inhere in the nation that was declared in 1776.
The six paragraphs in which Wilson outlined this theory may be the single most important constitutional argument given during the period leading up to the federal convention. Because it is also critical for understanding how Wilson later enumerated the powers of Congress for the Committee of Detail, the argument deserves to be quoted in full:
Though the United States in congress assembled derive from the particular states no power, jurisdiction, or right, which is not expressly delegated by the confederation; it does not hence follow, that the United States in congress have no other powers, jurisdiction, or rights, than those delegated by the particular states.
The United States has general rights, general powers, and general obligations, not derived from any particular states, nor from all the particular states, taken separately; but resulting from the union of the whole: and, therefore, it is provided, in the fifth article of the confederation, “that for the more convenient management of the general interests of the United States, delegates shall be annually appointed to meet in congress.”
To many purposes, the United States are to be considered as one, undivided, independent nation; and as possessed of all the rights, and powers, and properties, by the law of nations incident to such.
Whenever an object occurs, to the direction of which no particular state is competent, the management of it must, of necessity, belong to the United States in congress assembled. There are many objects of this extended nature. The purchase, the sale, the defence, and the government of lands and countries, not within any state, are all included under this description. An institution for circulating paper, and establishing its credit over the whole United States, is naturally ranged in the same class.
The act of independence was made before the articles of confederation. This act declares, that “these United Colonies,” (not enumerating them separately) “are free and independent states; and that, as free and independent states, they have the full power to do all acts and things which independent states may, of right, do.”
The confederation was not intended to weaken or abridge the powers and rights, to which the United States were previously entitled. It was not intended to transfer any of those powers or rights to the particular states, or any of them. If, therefore, the power now in question was vested in the United States before the confederation; it continues to vest in them still. The confederation clothed the United States with many, though, perhaps, not with sufficient powers: but of none did it disrobe them. (1 Works 65-66, emphasis original)
It is tempting to dwell on the ideas expressed in these paragraphs and the rest of Wilson’s essay and to reflect on how profoundly they anticipate the course of American constitutional law over the next eighty years. As Robert McCloskey observes in his marvelous introduction to Wilson’s collected works (1967 edition), Wilson’s defense of the bank
advanced the doctrine that a corporate charter is an inviolable contract between the state and the company, and the doctrine that the national congress (even under the Articles of Confederation) enjoys, in addition to the powers specifically delegated, ‘general powers . . . resulting from the union of the whole.’ The first of these ideas prefigures the holdings of Marshall in Fletcher v. Peck and the Dartmouth College case; the second certainly anticipates the ‘implied powers’ conception of McCulloch v. Maryland and will further suggest to students of constitutional history the ‘inherent powers’ doctrine of such relatively recent modern decisions as Missouri v. Holland and United States v. Curtiss-Wright. In the same tract he set forth what has been called the doctrine of ‘dual sovereignty’: that while the states are sovereign within their sphere, the nation is sovereign with respect to national affairs—that sovereignty is divisible. This all-important idea, which Wilson himself developed further in the Federal Convention and in Chisholm v. Georgia, foreshadows Marshall’s words in Cohens v. Virginia: ‘[the states] are members of one great empire—for some purposes sovereign, for some purposes subordinate.’ (McCloskey, Introduction, pp. 3-4)
To McCloskey’s recital one might add other striking features of Wilson’s essay: for example, its creative use of Burlamaqui’s The Principles of Natural and Politic Law (1747/1763) to elucidate the concept of sovereignty, its then cutting-edge appeal to Smith’s Wealth of Nations (1776) and Stewart’s Principles of Political Economy (1770) to explain the political economy of banking, and its bold assertion that the birth of the United States as a new nation could be dated to 1776, a controversial account of national origins at the time, which would later be echoed by Abraham Lincoln in his July 4, 1861 message to Congress and the Gettysburg Address.
Several of these themes are only loosely related to our topic, but the reference to Burlamaqui is directly on point. Immediately following the six paragraphs quoted above, Wilson invoked the Swiss jurist to support his claim that the United States was inherently authorized to legislate in any case “to the direction of which no particular state is competent.”
It is no new position, that rights may be vested in a political body, which did not previously reside in any or in all of the members of that body. They may be derived solely from the union of those members. “The case,” says the celebrated Burlamaqui, “is here very near the same as in that of several voices collected together, which, by their union, produce a harmony, that was not to be found separately in each.” (1 Works 66-67)
Burlamaqui’s harmony metaphor can be found in Part I, Chapter 6, Paragraph 15 of Volume Two of the Principles, entitled “Of the immediate source, and foundation of sovereignty.” Read in context, the paragraph appears to be an important source of the radically egalitarian and democratic conception of popular sovereignty that animated Wilson at the federal convention and throughout his public life. In Chisholm v. Georgia, Wilson framed this conception dramatic terms, arguing that whatever authority governments possessed must ultimately be rooted in the sovereign rights of individuals. “The sovereign, when traced to his source, must be found in the man.” (Like much of Wilson’s Chisholm opinion, this remark was in fact lifted from his Law Lectures: “The dread and redoubtable sovereign, when traced to his ultimate and genuine source, has been found, as he ought to have been found, in the free and independent man.”)
In the same case, Chief Justice Jay and Justice Cushing expressed similar views. (Jay: “The sovereignty of the nation is in the people of the nation;” Cushing: “The rights of individuals and the justice due to them, are as dear and precious as those of States. Indeed the latter are founded upon the former.”) The underlying political theory of all three opinions is “Burlamaquian” and is reflected in the same passage Wilson quotes in his bank essay:
XV. Since every individual has a natural right of disposing of his natural freedom according as he thinks proper, why should he not have a power of transferring to another that right which he has of directing himself? Now is it not manifest, that if all the members of this society agree to transfer this right to one of their fellow-members, this cession will be the nearest and immediate cause of sovereignty? It is therefore evident, that there are, in each individual, the seeds, as it were, of the supreme power. The case is here very near the same as in that of several voices, collected together, which, by their union, produce a harmony, that was not to be found separately in each. (Para. XV)
Burlamaqui was not a particularly original thinker, and many of his ideas can be found in earlier writers, such as Hutcheson, Locke, Pufendorf, and Grotius. But he was an effective popularizer, and he exerted a significant influence on many of the Founders, including Wilson. On another occasion, when Wilson was just 26 years old, he drew from Burlamaqui to compose one of the most influential American statements of popular sovereignty during the revolutionary period, which, according to many historians, Jefferson later took as an inspiration for the Declaration of Independence:
All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government. (1 Works 4-5).
Again, these important themes deserve more attention than can be given here. Our immediate topic is not the broader reach of Wilson’s political philosophy, but how his bank essay appears to supply the critical missing ingredient in Resolution VI of the Virginia Plan.
Whenever an object occurs, to the direction of which no particular state is competent, the management of it must, of necessity, belong to the United States in congress assembled.
‘The case . . . is here very near the same as in that of several voices collected together, which, by their union, produce a harmony, that was not to be found separately in each.’
Resolution VI gives Congress the power to legislate:
... in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.
Based on the language alone, it seems likely that the source of this passage was Wilson’s bank essay. When one considers the corresponding gap in Madison’s letters to Randolph and Washington, the conclusion seems even more probable.
Moreover, if one reflects on what must have transpired between May 3 and May 25, 1787, when Madison and other Virginia delegates to the federal convention arrived in Philadelphia and began conferring with the Pennsylvania delegation while waiting for the other delegates to arrive, it seems almost certain that this passage was a Pennsylvania contribution to the Virginia Plan.
In future posts, I’ll expand on this thesis and consider whether this part of Resolution VI might nonetheless be derived from other pre-convention sources, such as Madison’s “Vices of the Political System of the United States” and Benjamin Franklin’s 1775 draft of the Articles of Confederation. I’ll also canvass what Madison’s biographers and other historians have written on the topic. Finally, I’ll discuss why all of this history appears to matter for the enumerated powers doctrine and contemporary debates about judicial review of federal laws under the N&P Clause.