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The happy Union of these States is a wonder; their Constitution a miracle; their example the hope of Liberty throughout the world… James Madison

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Section 8 of Article 1 of the Constitution of the United States of America lays out exactly what the Congress may do:

  • The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
  • To borrow Money on the credit of the United States;
  • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
  • To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
  • To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
  • To provide for the Punishment of counterfeiting the Securities and current coin of the United States;
  • To establish Post Offices and post Roads;
  • To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
  • To constitute Tribunals inferior to the supreme Court;
  • To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  • To provide and maintain a Navy;
  • To make Rules for the Government and Regulation of the land and naval Forces;
  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
  • To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
  • To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And
  • 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.

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If we ever had a Congress that did those things well it might be time to consider further grants of power to the federal government. The simple fact of the matter is that many of the founders, led by Madison – and more importantly the great majority of the people – realized the inability of politicians to do anything other than feather their own nests. To stop the power grabs by people like Hamilton the Tenth Amendment was put into place.

The tenth amedment to the Constitution reads, 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. The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified. The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

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The irony of this book is that Rakove is presented as a fan of Madison and the limited government faction. The reality is that in spite of the volume of words produced in support of Madison, Rakove has in another book [Revolutionaries] presented him as an accidental constitutionalist and his real argument here seems to be in favor of Madison’s eclipse by the Hamiltonians and his rejection by the Jacksonians and all that came after. The true measure of his skepticism may be his inverting Madison to use his own arguments against him which makes this book less about originalism and more about flavor of the week constitutionalism.

Original meanings : politics and ideas in the making of the Constitution  Jack N. Rakove  New York : A.A. Knopf, 1996  Hardcover. 1st. ed., later printing. xvi, 439 p. ; 25 cm. Includes bibliographical references and index. Clean, tight and strong binding with clean dust jacket. No highlighting, underlining or marginalia in text. VG/VG  

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Original Meanings is not really about “how Americans created a national polity during the Revolutionary era.” Rather, it is an exposition on the centrality of James Madison and his thoughts, plans, ideas, and ideals in the shaping of the American constitutional structure. Clarity and precision of language bedeviled the delegates through the course of their deliberations in Philadelphia, and clarity and precision of language bedeviled the defenders of the proposed Constitution during ratification. After completing Original Meanings, one better understands why Madison’s star continues to rise in the estimation of Constitutional and Revolutionary historians.

Rakove wants to recover the “original meanings” and controversies, fears, and hopes of the Founders in general, and of Madison in particular, as they crafted the Constitution in convention and defended the Constitution in the state ratifying conventions. By closely and minutely examining what the delegates debated and compromised, Rakove actually tests originalism’s usefulness. By arguing up from the sources, up through the secondary literature, and to his own conclusions, Rakove has produced an addition to, and interpretation of, American constitutional history.

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As the text makes clear Rakove is a skeptic of originalism. He found that the theory provided him a conceptual tool that both aided and hindered his task as a historian. Originalism, the interpretive approach, forced a re-evaluation of the primary sources. What those sources suggest to Rakove about the “original meanings” of the drafting and ratification of the Constitution will disappoint strident originalists.

One of the oldest and most troubling questions for Americans has been, as Rakove points out, “[w]hich came first, the Union or the states?”. How Americans have struggled with and separated the division of powers and duties among the levels of government is one of the key questions in constitutional history. What Rakove posits is that “the Founders” were themselves divided on the relative power of the states versus the central government. One group, led by Alexander Hamilton  believed that the states formed the key evil in the polity and that, once the federal government took life after ratification, the states would decrease in importance. Another key group, led by Madison, believed that local attachments to states would last long and die hard, if they died at all. As Rakove explains, “But whereas Hamilton was rash enough to predict that the functions of the states must decline in importance relative to those of the Union, Madison better grasped just how provincial American governance would long remain”.

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