by Jon Roland

Many Americans who are alarmed about the exercise of powers by government, especially the central government, that go beyond those delegated by the Constitution, think that most of these usurpations began with the New Deal, but an examination of the constitutional history of the United States reveals that efforts to exercise unconstitutional powers date back to the beginning of the Republic.

Perhaps the two most revealing issues that divided early Americans centered on the Alien and Sedition Act of 1798 and proposals to establish a National Bank. The former provoked a vigorous response, represented by the Kentucky Resolutions of 1798 and 1799 and the Virginia Resolution of 1798, led by Thomas Jefferson and James Madison, the leaders of those favoring a strict construction of the delegation of powers to the central government.

When Joseph Story was appointed to the Supreme Court at the instigation of Jefferson and Madison, his views on constitutional interpretation were similar to theirs, but the fourth Chief Justice of the Supreme Court, John Marshall, favored a broader interpretation of delegated powers, and under Marshall's influence Story's views changed. He began to find implied powers in the words of the Framers, mainly in the Commerce Clause, discussed in his Commentaries in Book III Chapter XV, and the Necessary and Proper Clause, discussed in Book III, Chapter XXIV.

This is not to say that Story, or even Marshall, would have agreed with how far the proponents of the New Deal interpretative doctrine went. Story's words make it clear that he would at least comply with the basic grammar of the language of the Constitution and the clear intent of the Framers. But by opening the door to expansion of powers by re-interpreting the language of the Constitution rather than by amending it, and writing a work, these Commentaries, which dominated constitutional interpretation for the next 100 years, he certainly laid the basis for these usurpations, which would be further advanced by Justice Oliver Wendell Holmes before the Supreme Court became packed with justices appointed by President Franklin D. Roosevelt and his successors.

The reader should focus on a few key points that define the divide between the two interpretative doctrines. First, in the 1798 Kentucky Resolutions we find that the central government has been delegated powers to make criminal laws in only the following jurisdictions:

State territory: subject jurisdiction only over
Piracy and felonies on the high seas
Offenses against the laws of nations

Ceded (non-state) territory: general jurisdiction over all matters (municipal powers), subject to the restrictions of the Bill of Rights and other constitutional protections of rights

Anywhere: personal jurisdiction over U.S. military personnel and militia personnel when in federal service

Second, commerce was interpreted by the Jeffersonians as including only commercial transactions, not primary production such as farming, mining, or manufacturing, not retail sales, and not possession and use. It also did not include travel or navigation unless such travel or navigation was also a commercial transaction, that is, an exchange of goods or services for a valuable consideration.

Third, those powers considered necessary and proper included only the following:

Sub-powers of those explicitly delegated
Powers essential to exercise explicitly delegated powers

They did not include powers needed to achieve the same objects that the delegated powers were apparently intended to achieve.

Third, the power to regulate did not include the power to prohibit or to impose criminal penalties for violating regulations, only civil penalties, such as fines.

The first expansion of the commerce power was inclusion of navigation. This is discussed by St. George Tucker in Tucker's Blackstone, which represents the state of thought on the subject in 1803. One suspects that had the issue been raised in the Federal Convention the Framers would have added "and navigation" after "commerce", but they didn't think about it. The result was a practical problem which it was easier to resolve by expanding the definition of "commerce" than by amending the Constitution.

By the time Story wrote in 1833, however, powers considered necessary and proper included those needed to achieve the apparent objects of the explicitly delegated powers, and in particular, powers to impose criminal penalties for violation of regulations. Once one admits that interpretation, there is no longer a clear line for limiting the expansion of federal powers.

In fairness, however, it does not appear that Story was attempting to impose his own views of how the Constitution should be interpreted so much as reflecting the emerging consensus of his times. How he dealt with the logical and interpretative problems that this presented is most clearly revealed in his chapter on Rules of Interpretation, Book III Chapter V.

A particularly interesting chapter is the one on the Militia, Book III Chapter XXII, which should lay to rest any efforts to interpret the Right to Keep and Bear Arms as some kind of "collective right" rather than an individual right.

A few words need to be said about this online edition. The original footnotes have been converted to chapter endnotes and numbered. Very long chapters have been divided into parts, and in a few cases long endnotes get their own files. This editor's additional endnotes are indicated by an "E" prepended to the number. The index has page numbers replaced by Book, Chapter, and Section references using the format BB:CC:SSSS. Where possible, references to other works have links to the actual works and the referenced passages in those works.

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