The Antifederalist Papers by Unknown

Author:Unknown
Format: epub
Published: 2010-06-13T04:00:00+00:00

Antifederalist No. 46 "WHERE THEN IS THE RESTRAINT?"

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This essay by "AN OLD WHIG" (see AFP #'s Nos. 18-20, 49, 50, and 70) appeared in the Maryland Gazette and Baltimore Advertiser on Nov. 2, 1788.

Let us look to the first article of the proposed new constitution, which treats of the legislative powers of Congress; and to the eighth section, which pretends to define those powers. We find here that the Congress in its legislative capacity, shall have the power to lay and collect taxes, duties, and excises; to borrow money; to regulate commerce; to fix the rule for naturalization and the laws of bankruptcy; to coin money; to punish counterfeiters; to establish post offices and post roads; to secure copy rights to authors; to constitute tribunals; to define and punish piracies; to declare war; to raise and support armies; to provide and support a navy; to call forth the militia; to organize, arm and discipline the militia; to exercise absolute power over a district ten miles square, independent of all the State legislatures, and to be alike absolute over all forts, magazines, arsenals, dock-yards, and other needful buildings thereunto belonging. This is a short abstract of the powers given to Congress. These powers are very extensive, but I shall not stay at present to inquire whether these express powers were necessary to be given to Congress? Whether they are too great or too small?

My object is to consider that undefined, unbounded and immense power which is comprised in the following clause - "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 offices thereof." Under such a clause as this, can anything be said to be reserved and kept back from Congress? Can it be said that the Congress have no power but what is expressed? "To make all laws which shall be necessary and proper" - or, in other words, to make all such laws which the Congress shall think necessary and proper - for who shalt judge for the legislature what is necessary and proper? Who shall set themselves above the sovereign? What inferior legislature shall set itself above the supreme legislature? To me it appears that no other power on earth can dictate to them, or control them, unless by force; and force, either internal or external, is one of those calamities which every good man would wish his country at all times to be delivered from. This generation in America have seen enough of war, and its usual concomitants, to prevent all of us from wishing to see any more of it-all except those who make a trade of war. But to the question - without force what can restrain the Congress from making such laws as they please? What limits are there to their authority? I fear none at all. For surely it cannot be justly

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