The singular purpose of the Constitution was to enumerate the specific powers that the people conferred to government. How is that endavor, in and of itself, not an express statement of the intent of limiting powers?
Are you saying that the Constitution is the base, the starting point, the
least amount of powers that the government possessed when established and whatever powers it thinks it needs in the future can just be created out of thin air?
Perhaps, instead, it your contention that the people's reservation of the innumerable powers
not granted to the federal government simply shrinks over time, until what, government is omnipotent? I mean really, let's take your preposterous theory to its ultimate conclusion.
You didn't look very hard (or my opinion, . . . at all).
For instance, how can one read
Federalist 84 without learning and understanding that the express, enumerated powers of the Constitution is the full and complete and permanent (until amendment) exposition of the full ambit and orbit of government's powers?
The fundamental principle of specifically enumerated powers limiting the acts of government is perhaps the primary Federalist argument
against adding a bill of rights to the Constitution. That the Constitution was a charter of conferred powers which originated from the people who consent to being governed, with the people reserving (retaining) what was
not conferred, was seen as making the addition of a declaration of rights unnecessary, absurd and even dangerous.
The Federalists, in reviewing history, considered the claims of privilege known as bills of rights to be primitive and only necessary under lesser forms of government. Our novel Constitution was considered to reside on a
much higher plane based in legitimacy of government action and that legitimacy is entirely based on government ONLY exercising the specific powers granted to it. You demand us to deny and ignore the most fundamental principles of the Constitution!
The Federalists maintained that bills of rights . . .
- "have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government."
And why is that? Well, because under
this Constitution, the powers of government were strictly limited to just the precise enumerations in the Constitution.
Our rights were safe because no power was ever granted to government that could be construed to permit it to act beyond what was granted:
- "I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"
The liberty interests known as "rights" are not "our rights" because of they appear in the Bill of Rights; they are our rights because no power exists that would legitimately allow government to act to harm them.
Rights are "EXCEPTIONS OF POWERS NOT GRANTED"; that means the Bill of Rights, under true Constitutional principles, is redundant.
Of course powers
could be claimed to exist using inventive construction but they would be illegitimate, they would be stolen from the people:
- "Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power."
The Federalists feared those "disposed to usurp" saying that the simple statement that the government can't do something must mean that somewhere, somehow, a ---
we just gotta find it--- power
DOES exist to do what was expressly forbidden . . . Uhhhhh, 2nd Amendment anyone???????
Well, you're the one that mentioned the Federalist. Let's see if the concept of powers being "limited" by the Constitution is represented at all in the Federalist Papers (emphasis added):
- "In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, . . . "
Federalist 14
- "We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."
Federalist 40
And to the often seen claim that the "doubtful and indefinite terms" of "general welfare" imputes a power to do whatever Congress thinks would benefit the "general welfare" and in the specific argument you make, that no limits on power are created by the "precise expressions" of § 8. (paragraph breaks added, edited for brevity, original here;
Federalist 41)
And yes, I did intend to bold the whole damn thing . . .
- "It has been urged and echoed, that the 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,'' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. . . . Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. . . . But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?
hall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, . . .
Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare?"
Federalist 41
Discussing mandatory intervals between elections, the Federalists argued that the more frequent the better for other nations. A one year interval would serve as a "security" for the people against an "unlimited government" unencumbered by a constitution. In our case, where the dangers of "the gradual innovations of an unlimited government" are NOT A FEAR, such short time frames are unnecessary for a people living under "a government limited, as the federal government will be, by the authority of a paramount Constitution":
- "Where no Constitution, paramount to the government, either existed or could be obtained, no constitutional security, similar to that established in the United States, was to be attempted. Some other security, therefore, was to be sought for; and what better security would the case admit, than that of selecting and appealing to some simple and familiar portion of time, as a standard for measuring the danger of innovations, for fixing the national sentiment, and for uniting the patriotic exertions? The most simple and familiar portion of time, applicable to the subject was that of a year; and hence the doctrine has been inculcated by a laudable zeal, to erect some barrier against the gradual innovations of an unlimited government, that the advance towards tyranny was to be calculated by the distance of departure from the fixed point of annual elections. But what necessity can there be of applying this expedient to a government limited, as the federal government will be, by the authority of a paramount Constitution? Or who will pretend that the liberties of the people of America will not be more secure under biennial elections, unalterably fixed by such a Constitution, than those of any other nation would be, where elections were annual, or even more frequent, but subject to alterations by the ordinary power of the government?"
Federalist 53
Discussing the Anti-federalist objection to the number of representatives in the Congress, Federalist 55 argues that the same principles apply as interval of elections. Additionally, since the limits on Congressional power are unique and comprehensive, (by this account, seemingly un-ordinary restraints), federal power does not extend to all matters, especially those under the control of subordinate legislative bodies which then were intended to have a voice in Congress (the Senate):
- "It is necessary also to recollect here the observations which were applied to the case of biennial elections. For the same reason that the limited powers of the Congress, and the control of the State legislatures, justify less frequent elections than the public safely might otherwise require, the members of the Congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies. . . .
The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States?"
Federalist 55
So it is clear that the concept of "limited powers" is well represented in the Federalist.
What's your next absurd argument?
That SCOTUS has never endorsed the doctrine of strictly limited powers dependent upon express enumeration in the Constitution?
