Inherent powers, again

It is a reasonable view that powers not expressly given to the government are denied it, in the US constitution, even apart from the flat assertion of that notion in the 10^th Amendment.

But in that case the stipulations of the powers of congress, for instance, in Article I Section 8 and elsewhere ought to have been sufficient.

Whence the need, then, for the express denials of power in Section 9 and elsewhere?

To make assurance doubly sure against the temptation to refuse to understand?

To ensure the denied powers were not misconstrued as separately contained and hence affirmed in the inherent nature of the legislative power attributed to the congress at Section 1 of Article I?

And in that case do conditional or partial denials imply powers only limited or partly denied?

Are there un-enumerated powers inherent in the nature of legislative power, itself, that, so to speak, “go without saying”?

Much reliance has been traditionally placed on the powers allegedly inherent in the executive power vested in the president by Article II, Section 1, so little being actually said about what his job is.

And the same is true of the judicial power attributed to the supreme and other federal courts in Article III, Section 1.

But that way lies an ocean of invisible ink, alleged mind-reading of those long dead, and insertion into the constitution and government of what the reader himself thinks necessary, inevitable, unavoidable, or merely a very good idea.

On the other hand, perhaps too much has been made of this approach by the “limited government” side.

Perhaps the point of the affirmations of power was not to provide a complete list, making safe and valid the idea if a power was not affirmed then it does not exist and has not been granted to the congress, the president, or whomever.

Perhaps those who talk in terms of inherent powers are really right, and the point of the affirmations is to make specific denials impossible, while the point of the denials is to make specific affirmations impossible.

So, again, could it be the men of the convention and of their time took it for granted that of course there were powers that were inherent in the executive, legislative, and judicial powers and “went without saying”?

Often remarks before, during, and after the convention made by men at Philadelphia or in the ratifying conventions or engaged in the political battle wrote exactly as though they thought so.

And if they are right then Article 10 subtracts nothing from these powers since they are in fact attributed to the branches of the general government as inherent in the nature of the executive, legislative, or judicial powers.

Well, there is this to give the fan of inherent powers pause.

The powers of a national government not federative in character are quite different from those of a national government claiming to live only by powers conceded of necessity by a group of states too small and weak to do well in their separated and jarring sovereignties.

At the convention, several men spoke out, in fact, for abolishing the states or making a national government strong enough to simply overwhelm their pretentions to independence and residual sovereignty.

In their eyes, the national government should be omnicompetent, leaving for regional or provincial governments only delegated, revocable, and overridable authority to deal with local matters and matters too insignificant for the national government to wish to deal with, itself.

In fact, on some occasions during and after the ratification struggle, Hamilton variously espoused the views that the federal government crafted in Philadelphia did or should stand in such a relationship to the states.

But he and other such extreme nationalists were a minority before, at, and after the convention.

Madison, himself a less extreme nationalist, was certainly himself for a strong central government, and his proposals that representation in both houses be proportional to population and that the federal legislature be empowered to review and nullify state legislation before it could take effect were both rejected.

As was the suggestion of others (not Madison) that senators be popularly elected from districts of equal population whose boundaries might be drawn across state lines, and drawn so large that some of them might encompass not only entire smaller states but parts of neighboring states.

That, too, was a non-starter.

Part of the point of these suggestions, as was very well understood by those present, even in the mind of Madison who would later, to a degree, join Jefferson on the other side, was to end state pretentions to sovereignty and give the lie to any notion that the new government was a mere creature of a compact among states, their creation and their servant.

But discussion of invention of such a strong national government to replace not only the Articles of Confederation but the union as previously understood, the union as a confederation of states retaining their separate identities, independence, and sovereignty provoked a reaction.

At the opposite pole there were those in attendance who were jealous of the prerogatives and powers of the states that sent them to Philadelphia, and disposed more to rectify than to replace the Articles of Confederation.

Remember the New Jersey Plan.

And remember as well the weakness of the plural executive it proposed.

As I said, the nationalism of not only Hamilton but even the likes of Madison was in fact rejected by the convention, both on its own account and because the conventioneers were unwilling to accept a final proposal without unanimous support from the state delegations.

Or, despite Madison’s bold talk, one that might be ultimately ratified by the small states only because they faced the frightening prospect of being left out of a new union comprising all the larger and more powerful ones.

In the end, the Great Compromise produced a kind of hybrid between the two, more national than the Articles of Confederation but still far more merely federal than the indisputably sovereign central government wanted and dreamed of by Hamilton then and later and Madison then, but later not so much.

Bearing all that in mind, I think we are forced to be wary of assertions of powers based only on bluster about inherent powers and appeals to invisible ink.