A Tale of Two Sweeping Clauses.

• Author: Mikhail, John
• Position: 'all other powers' clauses in the Declaration of Independence and Constitution - Thirty-Seventh Annual Federalist Society Student Symposium

Whenever there is a discussion about the relationship between the Declaration of Independence and the Constitution, most of the attention naturally gravitates toward the principle of equality and natural rights background of the Declaration, which have played such important roles in American history. The question then becomes whether, or to what extent, the Constitution embodies these background principles. In this Essay, I wish to focus attention on a different and less familiar connection between these two foundational documents--a connection that bears on the issue of government powers rather than of individual rights. I will make three main points, which may be surprising for some readers. I will first state these claims without much elaboration or qualification. Then I will circle back and say a few words of clarification about each of them.

Here are the three points: First, some of the most influential founders considered the Declaration of independence to be, in effect, the "first constitution" of the United States, which not only declared the existence of a new nation, but also vested the United States with all of the express and implied authority of any other nation, including the "full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do." (1)

Second, many of these same individuals celebrated the Constitution precisely because it marked a return to the broad conception of implied national powers vested in the United States by the Declaration, which the Articles of Confederation had sought to deny the national government.

Third, when it came time to draft the Constitution, the principal framers of that document turned back toward the Declaration for inspiration. The specific language on which they relied was its reference to "all other Acts and Things which Independent States may of right do." (2) This language had directly inspired the "all other powers" provisions, or "sweeping clauses," one finds in several early state constitutions, such as the Delaware, Pennsylvania, and Vermont constitutions. (3) It also served as a template for the "all other powers" provision of the Necessary and Proper Clause, (4) which James Wilson drafted for the Committee of Detail. (5)

My three points can be compressed into a single sentence: The Declaration was effectively the first constitution of the United States, which vested the United States with implied national powers and which later inspired one of the key provisions of the Necessary and Proper Clause. That is the main takeaway of my remarks. Let me now try to unpack the various parts of this argument and say a bit more about each of them.

1. The Declaration Was the "First Constitution" of the United States

   Consider first the idea that the Declaration of Independence was, in effect, the first constitution of the United States, which vested the United States with all of the power of any other nation, including the right to do all "Acts and Things" which any other nation might do. What should we make of this language in the final paragraph of the Declaration?

   A conventional reading of this passage assumes that the enumerated powers to which it refers--that is, the power "to levy War, conclude Peace, contract Alliances," and so forth--were declared to belong to each state individually. On this familiar reading, the Declaration produced thirteen independent nations, each of which was a free and independent state, and each of which possessed these powers. At the Constitutional Convention, Maryland's Luther Martin endorsed this conventional view when he claimed that "the people of America preferred the establishment of themselves into thirteen separate sovereignties instead of incorporating themselves into one." (6) Martin added that "the separation from [Great Britain] placed the 13 states in a state of nature towards each other. [and] they would have remained in that state. but for the [Articles of Confederation." (7)

   Martin's interpretation of the Declaration has a certain appeal and plausibility. (8) It is important to recognize, however, that many of the most influential Framers roundly rejected this interpretation. James Wilson, for example, stood at the convention and responded to Martin by reading aloud the final paragraph of the Declaration, arguing that its precise language implied that the states had declared their independence and possessed these enumerated powers "not Individually, but Unitedly" (9)--that is, in their collective, corporate capacity. Alexander Hamilton agreed with Wilson and likewise disputed Martin's claim that the Declaration had placed the states in "a State of nature." (10) And Rufus King reached similar conclusions by arguing that the individual states had never been "'sovereigns' in the sense contended for" (11) by Martin and some of the other delegates. King pointed out that the states lacked many of the sovereign powers to which the Declaration refers--for example, "[t]hey could not make war, nor peace, nor alliances, nor treaties." (12) As "political Beings," he said, the states were "dumb, for they could not speak to any for[e]ign Sovereign whatever." (13) They were also "deaf, for they could not hear any propositions" (14) from these foreign governments.

   Who was right in this debate? It's a longstanding debate, which is still with us in some respects. (15) My own view is that, on balance, the nationalists had the stronger argument. Without trying to settle the matter here, let me simply highlight several key propositions in their favor, drawing on arguments that have been made at various stages in American history by influential figures such as Wilson, Hamilton, Joseph Story, and Abraham Lincoln, along with historians such as John Norton Pomeroy, Curtis Nettles, Richard Morris, and Richard Beeman, among others. (16)

   First, the national government of the United States existed and became operative before the formation of the individual states. The nation preceded the states, in other words. (17) Furthermore, the delegates to the First and Second Continental Congresses were generally selected by the people of the colonies, not by the colonial legislatures. (18) It was these Congresses which directed the people of the colonies to organize new state governments in 1775 and 1776, beginning with New Hampshire and South Carolina in November of 1775, and then followed by the other states. (19)

   During this period, Congress exercised implied national powers of a sweeping sort, as Hamilton and other observers frequently emphasized. (20) So, for example, Congress commissioned a continental army and placed George Washington at its head. (21) It borrowed money on behalf of the United States. (22) It defined treason against the United States. (23) It issued national passports in the name of the United States. (24)

   Throughout the Revolutionary War, Congress's right to conduct foreign affairs--including defense, diplomacy, and the negotiation of treaties--went unchallenged by the states. (25) The Treaty of Peace with Great Britain was ratified solely by Congress on behalf of the United States. (26) Despite the fact that Article Ix of the Articles of Confederation mandated that "no State...