Tuesday, January 10, 2023

The Original Federalist Theory of Implied Powers

John Mikhail

In March, 2022, Professor Michael McConnell and I debated the original design of the Constitution at an annual meeting of The Federalist Society. A short essay comprising my opening remarks in that debate is now posted here. The essay argues that the two principal draftsmen of the Constitution, James Wilson and Gouverneur Morris, framed that instrument to vest sweeping implied powers in the Government of the United States, including but not limited to: (1) all the powers to which any nation would be entitled under the law of nations, (2) all the powers that Blackstone and other writers had explained were tacitly possessed by any legal corporation, (3) the power to legislate on all issues that affect the general interests or harmony of the United States, or that lay beyond the competence of the individual States, and (4) the power to fulfill all the purposes for which the Government of the United States was formed, including those ends enumerated in the Preamble and General Welfare Clause. The essay responds to some familiar objections to this thesis with particular reference to the ratification of the Constitution, controversies in the First Congress, early congressional practice, and other evidence of original public meaning. Finally, the essay touches on the implications of this thesis for our understanding of “the federal consensus” and famous disputes between later abolitionists, such as William Lloyd Garrison and Frederick Douglass, over the constitutional powers of the United States to abolish slavery.

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