Congress Is Not an Oligarchy - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]
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Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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Congress Is Not an Oligarchy
Turning to specific complaints lodged against the Constitution respecting the enumerated powers of Congress, Publius denied the allegation that the “times, places and manner” provision, which gave Congress concurrent authority to regulate the election of its own members, would displace the State legislatures. The States would regulate Federal elections in the first instance, contended Alexander Hamilton in Federalist 59, and Congress would not generally interfere except when “extraordinary circumstances might render the interposition necessary to its safety.” The “times, places and manner” clause was simply a device to protect Congress from being placed at the mercy of the States. Without it, the States might prevent the election of members of Congress altogether. It was justified by the general principle that “every government ought to contain in itself the means of its own preservation.”
Anti-Federalist arguments against the General Welfare, Tax, and Necessary and Proper clauses of Article I, and the Supremacy Clause of Article VI, were also not justified, the Federalists countered. A proper interpretation of these provisions, said The Federalist, showed they were entirely consistent with the principles of limited government. The power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare” was not an “unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” Congress had not been given a general power to legislate for the general welfare, because the General Welfare Clause was tied inextricably to the power to tax and spend. Congress, said Madison in Federalist 41, could tax and spend only to carry out one of its enumerated powers. Any other interpretation would render superfluous the specific enumeration of other Congressional powers.
It was true, of course, that the Framers had placed no limit on the amount that might be taxed. It would not be practical, the Federalists believed, to do so. In time of war and national emergencies, suggested Hamilton in Federalist 34, the situation might call for added revenue. “Constitutions of civil government are not to be framed upon a calculation of existing emergencies. … There ought to be a capacity to provide for future contingencies, as these may happen; and, as these are illimitable in their nature, it is impossible safely to limit that capacity.” Given the various constitutional restraints on government and the system of popular control over members of Congress, abuses of the tax power thus seemed remote.
Similarly unwarranted, argued Publius, were Anti-Federalist assaults on the Necessary and Proper and Supremacy clauses. “These two clauses,” observed Hamilton in Federalist 33, “have been sources of much virulent invective and petulant declamation. … [and] have been held up to the people, in all the exaggerated colors of misrepresentation, as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated.” Upon close examination, however, it was clear that both clauses were “perfectly harmless.” Indeed, wrote Hamilton, “the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated. … They are only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of constituting a Federal government, and vesting it with certain specified powers.” By this he meant that the Necessary and Proper clause was intended “to leave nothing to construction” and to remove all doubt that the delegation of certain powers to Congress carried with it the implied right to execute those powers by necessary and proper laws; and that the Supremacy Clause simply acknowledged the fact that “a law by the very meaning of the term includes supremacy.” The supremacy of national laws “flows immediately and necessarily from the institution of a Federal government.” The States were protected by language which “expressly confines this supremacy to laws made pursuant to the Constitution.”
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