The Constitution of 1787 – Designed to Protect Liberty

Liberty is defined as, the state of being free within a society from oppressive restrictions imposed by authority on one’s way of life, behavior, or political views.  Liberty entails the responsible use of freedom under the rule of law, and not depriving anyone else of their freedom.  In the United States, the people agreed to give up some of their rights to form a government in exchange for the government agreeing to protect the people’s retained liberties, and their responsible freedoms.  This contract between the people and a future government is anticipated in The Declaration of Independence. The first Constitution of the United States was written by John Dickinson in 1777 and after modification by the Continental Congress was sent to the states [formerly colonies] for ratification by their legislatures, which was achieved in 1781.  This first Constitution, called TheArticles of Confederation, transferred weak powers from the States to the central government and reserved policy and execution to the states.  It was sufficient to win the Revolutionary War, negotiate a peace treaty and finance the war with borrowed money, but it did not unite the country; the states failed to execute many of their obligations to the Confederation and similarly acted on their own behalf versus other states on trade and tariff issues. Delegates from all the states except Rhode Island met in Philadelphia in the summer of 1787 to create a new Constitution.  Rhode Island’s refusal to attend was typical of the “confederation problem.”  This new Constitution was ratified by the people in conventions of twelve states by 1789 and the new government was operable in 1790. Rhode Island later ratified in 1790. The preamble of the 1787 Constitution states its purpose.  “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence (sic), promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”  

The Powers of the new government were enumerated in Article I, Section 8 of the Constitution. The Clauses of this Section state the exact boundaries of the government of the United States of America.  Liberty is on the line here!   Stated are how the government raises revenue and what objects it may spend for.  There are eighteen Clauses in Section 8, sixteen containing enumerated powers to legislate and spend money (Clauses 2 through 17), one to define revenues and non-enumerated spending (Clause 1) and one to create auxiliary means of carrying into effect only the sixteen-enumerating Clauses (Clause 18). At the time the Constitution was signed at the closing of the Constitutional Convention, the sixteen-enumerating Clauses were mostly agreed to be harmless, excepting the Clause enabling the Congress to regulate commerce among the states and with foreign governments and making war and peace; propositions only the central government should make for the entire nation.  The federal government was prohibited from exercising preferences among ports of commerce and that was deemed sufficient protection to the States.  The most consequential Clause is the first, which states, “The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defense and general Welfare of the United Sates; but all Duties, Imposts and Excises shall be uniform throughout the United States; furthermore, revenues are from only the specifically listed taxes and that certain of these taxes must be apportioned by census and are to be uniform throughout the United States.  The Federalists claimed this Clause means the government can spend money only to pay the governments’ debts and for the common defence and general welfare.  The word “debts” incorporates the obligations of all of the spending applicable to the sixteen enumerating-clauses, plus the common defense and general welfare (which are not included among the enumerating Clauses, but are contained in Cause 1).  Anti-federalists were not so sure.  Clause 18 establishes that Congress shall have the power to “make all laws Necessary and Proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government or in any officer or department thereof. This clause was said by the Federalists to be specific to only Clauses two through seventeen — the foregoing powers being the enumerated powers. The “Necessary and Proper clause” means the federal government has means to enforce laws, such as for example against counterfeiters of the money.  The Executive branch of government may employ agents to pursue, capture and bring to trial such people and penalize them if found guilty in court.  The expansion of the meaning of such Clause has to be closely related to an enumerated clause, as the example illustrates.

The Constitution was not unanimously approved by the fifty-five Constitutional Convention delegates that wrote the document, so the individual State Ratifying Conventions were contested affairs, and caused the Constitution’s supporters to agree to make amendments to the Constitution for a Bill of Rights, but otherwise the Constitution was ratified by the people of every State.  

For nearly seventy years, the Constitution was tested by Congress attempting to spend on objects not permitted by the Constitution.  All these tests were upon The Spending Clause (Clause 1).  President Buchanan vetoed a Congressional appropriation to fund land-grant colleges and sent an explanation of his reasons that in my mind best explicate what the Federalists’ said was the meaning of the limitations upon the Spending Clause.  Said Buchanan: “The idea that the resources of the federal government – either taxes or the public lands – could be diverted to carry into effect any measure of state domestic policy that Congress saw fit to support would be to confer upon Congress a vast and irresponsible authority, utterly at war with the well-known jealousy of Federal power which prevailed at the formation of the Constitution.”  For nearly seventy years, most of the Presidents were tested by Congress, but with no important breakthroughs.  Presidents Monroe and Jackson were also explicit in their vetoes.                                                                                      September 7, 2020