It is in that context that Hamilton complains that the two clauses "have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane."
In other words, Scalia's dissent did not only apply Hamilton's comments to the wrong section of the Constitution but reversed their meaning. Hamilton was mocking those who were claiming that these clauses would be "the hideous monster."
Originalist Thinking
Scalia and the Right also misrepresent the actual "originalist" thinking of the Framers. The drafters of the Constitution decided on a system of checks and balances (primarily devised by James Madison) that required deliberate action but gave the nation's elected representatives nearly unlimited authority to do what they deemed necessary for the good of the country.
But American right-wingers are no more honest about the Constitution than they are about most other things. Indeed, an objective reading of the Founding era's history reveals the Framers of the Constitution to have possessed a much more robust view of federal government activism on behalf of American citizens and the country than the modern Right wants you to know.
The Framers of the Constitution, after all, were the Federalists, led by the likes of George Washington, Alexander Hamilton, James Madison (in his earlier incarnation as one of Washington's proteges) and Gouverneur Morris (who was a key drafter of the famous Preamble). This group, which dominated the Constitutional Convention in 1787, were pragmatic nationalists, devising a system that gave the central government all the necessary powers to make the young, sprawling country succeed.
That's why the Constitution grants sweeping powers to the federal government to "provide for ... the general Welfare" and to enact whatever legislation is deemed "necessary and proper" to achieve that and other goals. The language about the "general Welfare" appears both in the Preamble and in Article I, Section 8, the so-called "enumerated powers." It is an open-ended concept giving wide discretion to the country's elected representatives.
And that's not just a retrospective view from the 21st Century. Both at the Philadelphia convention in 1787 and in the ratification fight of 1788, the Framers were opposed by the Anti-Federalists who also perceived the Constitution to be a major concentration of power in the central government. The states went from being "sovereign" and "independent" under the Articles of Confederation to "subordinately useful," in Madison's notable phrase.
"General Welfare" Clause
As historian Jada Thacker has noted, in the "general Welfare" clause and the "elastic" language of "necessary and proper," the Constitution put into the hands of Congress and other federal agencies the authority to meet whatever might confront the nation in the future...
"When viewed in light of the ambiguous authorization of the Article's first clause (which includes the 'general Welfare' language), the importance of the 'necessary and proper' clause truly is astonishing. Taken together, these clauses -- restated in the vernacular -- flatly announce that 'Congress can make any law it feels is necessary to provide for whatever it considers the general welfare of the country.'"
That was precisely how the Constitution was interpreted by dissidents at the Convention. As New Yorker Robert Yates wrote after walking out in Philadelphia:
"This government is to possess absolute and uncontrollable power, legislative, executive and judicial, with respect to every object to which it extends. ... The government then, so far as it extends, is a complete one. ... It has the authority to make laws which will affect the lives, the liberty, and the property of every man in the United States; nor can the constitution or the laws of any state, in any way prevent or impede the full and complete execution of every power given."
When the Constitution was sent to state conventions for ratification, the Anti-Federalists continued to make their case against the transfer of power from the states to the federal government. In Virginia, leading Anti-Federalists Patrick Henry and George Mason tried to rally opposition by warning plantation owners that eventually the North would come to dominate the federal government and end slavery.
"They'll free your niggers," warned Patrick Henry.
Though the Constitution eked through to ratification, the Anti-Federalists did not give up their fight against the governing document. Their strategy changed, however, into seeking to reinterpret it. Rallying behind the charismatic figure of fellow slaveholder Thomas Jefferson, who had been in France during the drafting and ratification of the Constitution, the Anti-Federalists sought to constrain federal powers by insisting that the plain language of the document didn't mean what it said.
This reinterpretation of the Constitution -- spearheaded by Southerners fearful of the eventual loss of their massive investment in slavery -- explains the extraordinary bitterness of the battle between the Jeffersonians and the Federalists in the 1790s.
Ultimately, due to Federalist missteps inherent in the complexity of setting up a new government -- mistakes skillfully exploited by Jeffersonian propagandists -- Jefferson prevailed in developing extra-constitutional theories like the right of states to "nullify" federal laws or even secede. Jefferson defined his reassertion of states' rights as "strict constructionism" but it was clearly not what the original Framers had intended in 1787.
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
1
