A Few Parchment Pages Two Hundred Years Later


Since the proceedings of the convention were secret and mostly not published until after James Madison’s death some fifty years later, there is no possibility that the framers wished future interpreters to extract intention from their private debates. Nevertheless, in the debates over ratification, the Antifederalists expressed worries that the Congress and the federal judiciary would construe broadly the enumerated powers. At the New York ratification convention John Jay sought to allay these fears by insisting that the document involved “no sophistry, no construction, no false glosses, but simple inference from the obvious operation of things.” And Madison took pains to point out that improper construction of the Constitution could be remedied through amendment or by election “of more faithful representatives to annul the acts of the usurpers.”

One of the most revealing examples of determining the intent of the framers occurred in their own later arguments about the “necessary and proper” clause. Article I, Section 8 lists among the powers granted Congress: “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.” Now it so happens that both James Madison and Alexander Hamilton served on the Committee of Style that was responsible for the final wording of the Constitution. In The Federalist No. 44 Madison argued for a liberal interpretation of the “necessary and proper” clause in a way that must have delighted Hamilton, who was later to take the same position in defending the creation of the First Bank of the United States. The convention had in fact rejected a proposal to give Congress explicit power to charter corporations. Only after Madison had become involved with Jefferson in what amounted to the opposition party’s assault on Hamilton’s financial policies did Madison in effect repudiate his Federalist position and adopt the theory of “strict construction.”

Yet it was to be Hamilton’s interpretation of the scope of the “necessary and proper” clause that President Washington accepted and that Chief Justice John Marshall later embraced. Indeed, Hamilton anticipated the later assumption by the Supreme Court of powers for the federal government on the basis of three clauses of the Constitution, which, in addition to the “necessary and proper” clause, included the general welfare clause—granting Congress power “to provide for the...general Welfare of the United States”—and the commerce clause, giving Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes....” There is no question that we today owe to the vision of the framers a Constitution that can accommodate the modern welfare state under the general welfare clause and manufacturing within the commerce clause.

Every regional concession brought its price and begot its compromise.

In The Federalist No. 37 Madison, then sharing Hamilton’s views, argued that the “intent” of any legal document is the product of the interpretive process, not of some fixed meaning that the author locks into the document’s text at the outset. He ventured so far as to declare that even the meaning of God’s Word “is rendered dim and doubtful by the cloudy medium through which it is communicated” when He “condescends to address mankind in their own language....” It was up to the courts, Hamilton argued in a later Federalist letter, to fix the meaning and operation of laws, including the Constitution, and the courts could be expected to use the “rules of common sense” to determine the “natural and obvious sense” of the Constitution’s provisions.

The question of the intention of the Philadelphia framers came up in one of the first great and controversial decisions handed down by the Supreme Court presided over by John Jay. Chishom v. Georgia (1793) raised the question, Could a state be sued by a private citizen of another state? The language of the Constitution was, to say the least, ambiguous; according to Article III, federal judicial power could extend to controversies “between a State and Citizens of another State....” In the debates on ratification the framers went to great pains to deny that the Constitution would affect the state’s sovereign immunity. Even Hamilton gave such assurances in The Federalist No. 81. Yet a majority of the Court, construing the wording of Article HI, held that the text was intended to allow suits against a state. But Georgia did not think so, and few amendments overruling a Supreme Court decision were adopted more speedily than the Eleventh Amendment, which in 1798 upheld the states’ immunity to such actions.