By Allen C. Guelzo, Ph. D., Gettysburg College
After two days of debate in 1787, the Confederation Congress had referred to the new Constitution to the state legislatures for debate. It was in those state conventions that James Madison, George Washington, and the other promoters of the new Constitution had reason for worry. Was it because the authority of the states had taken the most severe beating in the new Constitution?
It was in the state conventions that the proponents of the new federal system would have their heaviest work to do. The preamble announced that the purpose of the Constitution would be to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty.”
So, the implication was that the states had failed, after Shays’s Rebellion and the behavior of Rogues Island, to ensure domestic tranquility. To correct that, the Constitution would give five new powers to the new federal Congress, and impose five restrictions on the states’ powers which just might cause them to gag.
This is a transcript from the video series America’s Founding Fathers. Watch it now, on Wondrium.
The New Congressional Power of Taxation
Congress would now have the power to levy taxes of its own for its own needs. Article 1, section 8 spelled out that national tariffs on imports, excises or user fees, and direct assessments “to pay the debts and provide for the common Defence and general Welfare of the United States.” Of the three, tariffs would be the most important means for generating revenue, partly because they would generate a substantial volume of revenue—95% of all federal needs—and partly the revenue would come from commercial sources rather than from of the backs of farmers like Daniel Shays.
Of course, the happiness of these farmers would be in inverse proportion to the powers of the states, who would not be shorn of their authority to impose tariffs; but pleasing the farmers would be one way to pressure the state in ratifying conventions into approval.
Learn more about Daniel Shays’s misbehavior.
The Taxing Authority
It was the authority Congress would have “to regulate Commerce with foreign Nations, and among the several States”. There would be no more need for clumsy interstate commercial conventions, like the one at Annapolis which had called the Philadelphia assembly into being in the first place.
And since, at the insistence of the Maryland delegates, the Constitution also stipulated that “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another, nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another”, a gigantic free trade zone would be created in the place of the welter of state tariffs and duties which had prevailed under the Articles of Confederation. Congress would “have the power of preventing the States from cheating one another as well as their own citizens by means of paper money.”
The Militia of the States Under Congress
Congress would not have to worry that the states might defy it because it could now preempt the states’ control of their own armed forces. In fact, Congress would even make the loyalties of the state militias subservient to the Constitution by “organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the Service of the United States.”
Congress was now authorized to use the militia of the states. This was clearly intended as an insurance policy against further Shays-style rebellions, as well as transferring the power to deal with any future insurgencies. It had been one of the principal complaints of Edmund Randolph when he introduced the original Madison plan for the Constitution that the Articles of Confederation contained “No Provision against Foreign Powers and invasion” and “No Provision against Internal Insurrections.” Those loopholes had now been decisively closed—and the money Congress would need to enforce that closure would come from its own tariff revenue so that it could fund a standing army of its own.
Learn more about Randolph’s plan for the improved system of government.
The Final Authority of the Congress
The provision at the end of Article 1, section 8 authorized Congress “to make all laws which shall be necessary-and-proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
Ostensibly, the necessary-and-proper clause was only intended to ensure, according to James Wilson, that Congress “shall have the power of carrying into effect the laws which they shall make under the powers vested in them by this Constitution.” It was not intended to be a grant of, what Wilson called “general legislative power.” After all, John Rutledge’s Committee on Detail had clearly decided that the federal government’s powers were to be enumerated—rather than the Constitution giving a general grant of powers, those powers were to be identified one-by-one in the Constitution, so that it was clear that the new government would be exercising only those powers and none other.
So, Madison concluded, “Whatever meaning this clause, ‘necessary-and-proper’, may have, none can be admitted that would give an unlimited discretion to Congress.” A law must be necessary, not merely convenient. But Edmund Randolph had made the “general clause concerning necessary-and-proper laws” one of his chief objections to signing the Constitution, precisely because he did fear that it would give Congress power to enact any law it pleased.
However, the necessary-and-proper provision was intended not so much to maximize the sweep of the new Congress’s powers as it was to arm the new Congress to intervene in state actions that it might consider a threat to its own.
Common Questions about the New Constitution
The states in America had failed to ensure domestic tranquility and this was one of the primary aims of the new Constitution.
According to the new Constitution, Congress had the power to levy taxes of its own for its own needs.
Congress was authorized to use the militia of the states as a measure against further Shays-style rebellions, as well as transferring the power to deal with any future insurgencies. It also meant the Congress had better control over the states.
