Tuesday, March 27, 2012

Madison and Enumerated Powers

Over at National Review Online, Rich Lowry has a column discussing how expansive, modern interpretations of the Commerce Clause---such as those which allegedly support the Affordable Care Act---are incompatible with the Founders' vision of a national government of limited powers within a federal system.
In the mind of contemporary progressivism, these words of Madison from the Federalist Papers simply don’t compute: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” They are an antiquated 18th-century sentiment unsuited to our more complex and more sophisticated time, to be ignored when not actively scorned. 
It's a good read, but its strikes me that it is not quite right to invoke Madison (at least the Madison of the Constitutional Convention) as the Father of Enumerated Powers and Federalism.

After all, it was Madison who drafted the so-called "Virginia Plan" (although it was introduced by Edmund Randolph), which framed the Constitutional Convention's deliberations over a replacement for the Articles of Confederation. Under the Virginia Plan, though, the federal Congress was not restricted to a finite set of enumerated powers. rather:
the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress bar 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
Moreover, Congress would be empowered to "negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union." In other words, under Madison's original plan, Congress could legislate "in all cases" and "negative" or veto an state law the federal government determined to violate the "articles of Union."

Enumerating the powers of Congress was formally brought into the Convention's  discussions by Thomas Patterson's "New Jersey Plan."This proposal would have kept the Articles of Confederation intact while expanding the scope of federal power to include a larger, but still finite, set of specific powers including new authority to collect taxes and regulate commerce between states:
in addition to the powers vested in the United States in Congress, by the present existing articles of Confederation, they be authorized to pass acts for raising a revenue, by levying a duty or duties on all goods or merchandises of foreign growth or manufacture, imported into any part of the United States... to pass Acts for the regulation of trade and commerce as well with foreign nations as with each other
Madison continued to fight for important elements of the Virginia Plan, especially the federal negative over state laws, throughout the Convention.

Certainly, by the time of the pivotal ratification debates in Virginia and New York, Madison adopted a strong limited government, pro-federalism position as he rallied to the watered-down version of federal power in the Constitution as a superior alternative to the inadequate Articles of Confederation. This is evident throughout The Federalist. Later still, when Madison and his political allies were battling Adams, Hamilton, and the emerging Federalist Party over the Alien and Sedition Acts, he took an even stronger states-rights position in the Kentucky and Virginia Resolutions.

All of which is to say that Madison's attitudes about the wisdom of enumerated powers for the federal government and the correct balance of state and national authority changed a lot over time. My own sense, though, is that is is difficult to accurately invoke him as an obvious and consistent supporter of limited federal government. In contrast, Madison's consideration of and support for the united systems of separated powers and checks and balances seems to have been incredibly consistent over time, and Madison well-deserves his reputation as the father of the Constitution.

No comments:

Post a Comment