"WHERE THEN IS THE RESTRAINT?"
The success of the American political system derives largely from the designed elasticity of the Constitution. Had the American character been so disposed, the same Constitution might very well have served as a vehicle for dictatorship. In essence, then, the maintenance of democratic traditions derives from the ability of the American people continually to reshape the fundamental law of the land.
But the Antifederalists of 1787-88 were unsure of the future, and preferred not to gamble on the risky venture of trust in human nature. Would we or would we not be any better than Europeans? If not, the Antifederalists declared, then governmental powers must be carefully limited, and restraints must be meticulously detailed.
In this brief essay "AN OLD WHIG" (see Antifederalist Nos. 18-20, 49, 50, and 70) analyzed the dangers of certain expressed and implied powers the new federal government would enjoy. It appeared in the Maryland Gazette and Baltimore Advertiser, November 2, 1788, reprinted from the [ Philadelphia] Freeman's Journal.
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 miltia; 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 shall 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