The Constitution: Was It An Economic Document?


Nor were there other specific limitations of an economic character upon the powers of the new government that was being erected on the ruins of the old. The framers properly gave the Congress power to regulate commerce with foreign nations and among the states. The term commerce—as Hamilton and Adair (and Crosskey, too!) have made clear—was broadly meant, and the grant of authority, too, was broad. The framers gave Congress the power to levy taxes and, again, wrote no limitations into the Constitution except as to the apportionment of direct taxes; it remained for the most conservative of Courts to reverse itself, and common sense, and discover that the framers had intended to forbid an income tax! Today, organizations that invoke the very term “constitutional” are agitating for an amendment placing a quantitative limit upon income taxes that may be levied; fortunately, Madison’s generation understood better the true nature of governmental power.

The framers gave Congress—in ambiguous terms, to be sure—authority to make “all needful Rules and Regulations respecting the Territory or other Property” of the United States, and provided that “new states may be admitted.” These evasive phrases gave little hint of the heated debates in the Convention over western lands. Those who delight to find narrow and undemocratic sentiments in the breasts of the framers never cease to quote a Gouverneur Morris or an Elbridge Gerry on the dangers of the West, and it is possible to compile a horrid catalogue of such statements. But what is significant is not what framers said, but what they did. They did not place any limits upon the disposition of western territory, or establish any barriers against the admission of western states.

The fact is that we look in vain in the Constitution itself for any really effective guarantee for property or any effective barriers against what Beard calls “the reach of popular majorities.”

It will be argued, however, that what the framers feared was the states, and that the specific prohibitions against state action, together with the broad transfer of economic powers from state to nation, were deemed sufficient guarantee against state attacks upon property. As for the national government, care was taken to make that sufficiently aristocratic, sufficiently the representative of the propertied classes, and sufficiently checked and limited so that it would not threaten basic property interests.

It is at this juncture that the familiar principle of limitation on governmental authority commands our attention. Granted the wisest distribution of powers among governments, what guarantee was there that power would be properly exercised? What guarantees were there against the abuse of power? What assurance was there that the large states would not ride roughshod over the small, that majorities would not crush minorities or minorities abuse majorities? What protection was there against mobs, demagogues, dangerous combinations of interests or of states? What protection was there for the commercial interest, the planter interest, the slave interest, the securities interests, the land speculator interests?


It was Madison who most clearly saw the real character of this problem and who formulated its solution. It was not that the people as such were dangerous; “The truth was,” he said on July 11, “that all men having power ought to be distrusted to a certain degree.” Long before Lord Acton coined the aphorism, the Revolutionary leaders had discovered that power corrupts. They understood, too, the drive for power on the part of individuals and groups. All this is familiar to students of The Federalist, No. 10. It should be familiar to students of the debates in Philadelphia, for there, too, Madison set forth his theory and supported it with a wealth of argument. Listen to him on one of the early days of the Convention, June 6, when he is discussing the way to avoid abuses of republican liberty—abuses which “prevailed in the largest as well as the smallest [states] …”

… And were we not thence admonished [he continued] to enlarge the sphere as far as the nature of the Government would admit. This was the only defence against the inconveniences of democracy consistent with the democratic form of Government [our italics]. All civilized Societies would be divided into different Sects, Factions & interests, as they happened to consist of rich & poor, debtors and creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader, the disciples of this religious Sect or that religious Sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger.… In a Republican Govt. the Majority if united have always an opportunity [to oppress the minority. What is the remedy?] The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the first place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the second place, that in case they should have such an interest, they may not be apt to unite in the pursuit of it. It was incumbent on us then to try this remedy, and … to frame a republican system on such a scale & in such a form as will controul all the evils which have been experienced.