THE ORIGINAL FEDERALIST THEORY OF IMPLIED POWERS.

• Author: Mikhail, John

Thank you, Judge McFadden, for your kind introduction. Let me start by thanking the University of Virginia for hosting this event and the organizers for inviting me, and by noting what a privilege it is for me to participate in this debate with Professor Michael McConnell. He is one of the great constitutional scholars of our time, and it's an honor for me to appear on this stage with him.

I'd like to begin my remarks by drawing some distinctions, in order to sharpen our topic. At the outset, I'll simply note these distinctions without much explanation. I'll then draw on them to state a general thesis I'd like to defend today. Finally, I'll say a few words on behalf of the thesis, before turning things over to Michael.

Here are the distinctions I have in mind. The first is the distinction between how the framers designed the Constitution and how they and other Federalists defended it, once Anti-Federalists began attacking it. The second is the distinction between the powers vested or delegated by the Constitution, on the one hand, and its enumerated powers, on the other. These three terms are often used interchangeably, but that's a mistake, for the simple reason that powers can be vested or delegated without being enumerated. In our Constitution, enumerated powers are a subset of delegated powers, because some delegated powers are implied. Put differently, there is a critical difference between "delegated" powers and "expressly delegated" powers--a point that was squarely raised, extensively debated, and decisively resolved when the Tenth Amendment was proposed and ratified. (1) Since this is a key theme in the account of federal power I'll defend today, it's important to clarify at the outset.

The third distinction is the difference between powers vested by the Constitution in the Government of the United States and those powers vested in Congress, the President, or other Departments or Officers of the United States. The text of the Necessary and Proper Clause requires us to draw this distinction, which is crucial to understanding how the Constitution was designed and ratified. (2) Nevertheless, a vast amount of scholarship and case law conflates these concepts, causing a great deal of confusion.

Finally, the fourth distinction is more methodological. Simply put, it's the difference between historical studies that honestly and squarely confront the role of slavery in the formation of the Constitution and scholarship that ignores or distorts that issue.

With this background in mind, let me now state my thesis. It doesn't fit easily into a single sentence, but I'll try to give a fairly concise statement of it nonetheless. In a nutshell, the thesis is that the framers designed the Constitution to vest implied as well as enumerated powers in the Government of the United States. Those implied powers include, but are not limited to:

1. All the powers to which any nation would be entitled under the law of nations, such as foreign affairs, Indian affairs, immigration, and other incidents of national sovereignty; (3)

2. All the powers that Blackstone and other writers had explained were tacitly possessed by any legal corporation, including the power to own property, make contracts, sue and be sued, operate under a seal, and enact by-laws, along with other corporate powers, such as the power to remove officers for good cause; (4)

3. The power to legislate on all issues that affect the general interests or harmony of the United States, or that lay beyond the competence of the states--in other words, the authorities implicated by Resolution 6 of the Virginia Plan, (5) later modified by the so-called Bedford motion; (6)

4. Finally, the power to fulfill all the purposes for which the Government of the United States was formed, including, but not limited to, those ends enumerated in the Preamble and General Welfare Clause. (7)

That's a lot of implied power. Among other things, it suggests that Congress is constitutionally authorized to legislate directly for the common defense and general welfare of the United States. That may seem shocking to some of you, but after many years of studying this issue, I'm reasonably confident that it is historically accurate, at least with respect to the principal framers of the Constitution. While I don't expect to persuade you of this robust account of federal power in the short time we have today, let me at least try to make the thesis more plausible by offering some clarifications and replies to objections.

First, it's natural to object that the Constitution I've just described is not the one defended by Madison and Hamilton in their Federalist essays or at their state ratifying conventions. (8) That's correct-- but this is where my first distinction comes into play. If one asks how the Constitution was designed by the framers, then that question must be distinguished from what happened during the campaign to ratify the Constitution, once critics began attacking it.

In this context, it's worth noting that a common mistake is to assume that James Madison played the leading role in framing the Constitution. The primary author of the Constitution was not Madison, but two anti-slavery Northerners--James Wilson and Gouverneur Morris--who did most of the actual drafting of the Constitution for the Committees of Detail and Style, respectively. (9) Wilson and Morris were two of the strongest nationalists at the federal convention. They also were among the biggest champions of implied national powers in the period before the convention. Unlike Madison, they believed that, even under the Articles of Confederation, the United States had the implied power to create a national bank, regulate public finance, govern...