How a Constitutional Mistake drove Big Government and Progressivism

During the Constitutional Convention, Anti-Federalists continued to bring up two issues they found unsatisfactory for ratifying the Constitution.  These issues were: 

  1. The Constitution did not contain a Bill of Rights, and 
  1. The powers of Congress were more than were necessary, and could be used by Congress to usurp powers belonging to the States. 

When the Constitutional Convention was adjourned, each state and various publishers were sent copies of the Constitution.  Those directed to the states were to be printed and published for the people to choose ratifiers from throughout the state to assemble in a Ratifying Convention at a place of their choosing.   

When the ratifying conventions occurred, delegates to the Constitutional Conventions noticed there were no changes for the two issues noted above.  At this point some States had ratified the Constitution, but for a majority of States, they refused to ratify without the Constitution embodying a Bill of Rights and assurances their state powers were secure in the Constitutions.  The Federalists promised to prepare Amendments to the Constitution when the first Congress convened in 1789.  These Amendments would be placed in the Constitution as Amendments in accordance with Article V, thus assuring that each could be approved or rejected in whole or in part.  Below are Amendments IX and X, stating the assurances that the Bill of Rights is greater than the ones selected in the Constitution, and assurances for the division of powers between the Federal and State governments, presently and forever; 

 “Amendment IX.  The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. 

“Amendment X.  The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

Regarding the Ninth Amendment, the Federalists believed it was unnecessary to add a Bill of Rights, and was actually dangerous to do so.  Their reason was that the Constitution created a federal government having limited and enumerated powers only.  Thus, the federal government, having only listed powers could not reach any other powers not so listed.  Further, the Federalists insisted that under the normal rules of statutory construction, by forbidding the government from acting in certain areas, a Bill of Rights necessarily implies that the government could act in others not specifically forbidden to it.  That would change the federal government from HAVING ONLY limited powers to one, JUST LIKE THE STATES, having general legislative powers.   

In the interim between the Constitutional Convention and the Ratifying Conventions, Alexander Hamilton in Federalist 84 gave notice to all the people of what would result from a written Bill of Rights.  “Here in strictness, the people surrender nothing; and as they retain everything they have no need for particular reservations….Why for instance, should it be said that the liberty of the press shall not be restrained, when no power is given whereby restraint may be imposed?”  Therefore, the Tenth Amendment was required to be inserted in the Constitution to warn against interpreting the amendments of the Bill of Rights to imply powers in the national government that were not granted by the original document.  The Tenth Amendment was the only means the Federalists could use to provide a bulwark against the written Bill of Rights implying that if the enumerated powers of Congress were not a grant of power to regulate speech and the press, but was only implied.   

The chickens came home to roost in 1871 when the Supreme Court needed to save the Union from losing the Civil Want for want of money to wage it.  The Court indulged exactly the line of reasoning that: 

“Important powers were understood by the people who adopted the constitution to have powers not enumerated and powers outside the scope of originally-intended powers.  They tend plainly to show that in the judgment of those who adopted the Constitution there were powers created by it, neither expressly specified nor deducible from any one specified power or ancillary to it alone, but which grew out of the aggregate of powers conferred upon the government or out of the sovereignty instituted.”  (In effect, these are powers a divinely-invested king would claim to have.)  

So, by insisting to have a written Bill of Rights, and compromising on permitting it, everybody loses.  All restraints upon the federal government were gone.   

The Gilded Age (1870 – 1899) was a period of great prosperity.  Wealthy people, and there were thousands in America, sent their children to Europe to finish their educations.  Returning home with degrees in political science, or other subjects, but most dubiously, political science, their minds were filled with the results of the Supreme Court’s 1871 decisions in the Legal Tender Cases.  The Progressive Movement was off and running when President Theodore Roosevelt succeeded William McKinley and whole heartedly took charge of the Progressive Movement and provided great entertainment for the nation at the same time.  The federal government no longer had Constitutional boundaries, and Roosevelt loved the lack restraint upon the power of his office.  It was difficult for Congress to keep up with him.   

The American Political Science Association was established in 1903, after installing political science as an intellectual department among the social studies of many universities.  The American judicial system began following what they observed were the political needs for change.  It was undoubtedly fun to be a political scientist and having a majority of the leaders of the nation, ministers, teachers, sociologists, social workers paving the road ahead with ideas of government reform.  Such was the beginning of big government and Progressive politics.