Fighting the Constitution
Despite these few concessions, the Constitution emerged from the secret meetings in Philadelphia as a stunning assertion of federal power. Anti-Federalists immediately recognized what had happened and rallied strong opposition to the new governing framework.
As dissidents from the Pennsylvania delegation wrote: "We dissent ... because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government." [See Consortiumnews.com's "The Right's Inside-Out Constitution."]
The Constitution's broad powers were particularly alarming to southern slaveholders because of the prospect that the North would eventually gain economic and political supremacy and push through anti-slavery legislation that would wipe out the South's vast investment in human chattel and thus destroy the region's plantation aristocracy.
Virginia's Patrick Henry and George Mason made this argument most aggressively to Virginia's ratifying convention, with Henry warning the Commonwealth's slave owners that if they approved the new governing structure, "they'll free your niggers!"
Faced with these alarms about federal powers, Madison agreed to propose some limiting amendments though he felt that a Bill of Rights was superfluous. Nevertheless, some of the first ten amendments did specifically restrict Congress's power.
For instance, the First Amendment begins with the phrase "Congress shall make no law..." while other amendments assert specific rights of citizens. The Tenth Amendment, however, simply states that powers not granted to the national government by the Constitution remain with the people and states.
Thus, the scope of the Tenth Amendment is entirely dependent on what preceded it, i.e., the nearly unlimited powers that the Constitution granted to the national government. In other words, if the Framers declared -- as they did -- that Congress could enact any law that it deemed necessary to promote "the general Welfare" and that federal law would be supreme, then the Tenth Amendment meant almost nothing since there were few powers left over for the states. It was a sop to the Anti-Federalists.
Still, the Constitution's opponents -- especially slave owners in Virginia -- did not just surrender after ratification. Instead, they devised a clever strategy for preventing the possibility that Congress would wipe out their massive capital investment in slavery.
Behind the charismatic Thomas Jefferson, who was in Paris in 1787 and thus did not participate in the Constitutional Convention, the plantation aristocracy simply pretended that the Constitution didn't mean what it said.
Jefferson's Wordsmithing
Jefferson, one of Virginia's biggest slaveholders and a masterful wordsmith, promulgated the absurd notion of "strict construction," which meant that only specific powers mentioned in Article One, Section Eight could be exercised by Congress. Regarding domestic policy, that meant such relatively narrow powers as coining money, setting up post offices, establishing rules for nationalization, regulating interstate commerce, etc.
Jefferson's "strict construction" was absurd because it ignored the obvious intent of the Framers and the need for the United States to act in ways that could not be specifically anticipated in 1787, a reality that confronted Jefferson himself after he was elected president in 1800.
Three years later, President Jefferson had the opportunity to buy the Louisiana Territories from France but there was no wording in Article One, Section Eight about expanding the size of the United States. Clearly, the Framers had enacted elastic phrasing for just such an eventuality but Jefferson had insisted on his crazy "strict construction" argument.
So, what did Jefferson do? He simply ignored his previous "principle" and implicitly accepted the Federalist interpretation of the Constitution, which they had principally authored. Congress approved the purchase of the Louisiana Territories doubling the size of the United States and giving Jefferson what is regarded as his greatest accomplishment as president.
Though even Jefferson -- the inventor of "strict construction" -- chose to repudiate his own argument, this insidious notion has survived the past two centuries in the fetid swamps of Right-Wing World.
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