The Original Federalist Theory of Implied Powers

8 Pages Posted: 19 Dec 2022

See all articles by John Mikhail

John Mikhail

Georgetown University Law Center

Date Written: December 16, 2022

Abstract

In March, 2022, Professor Michael McConnell and I debated the original design of the Constitution at The Federalist Society’s annual National Student Symposium. This forthcoming essay in the Harvard Journal of Law & Public Policy is a lightly edited transcript of my opening remarks at that debate. The essay argues that the two principal draftsmen of the Constitution, James Wilson and Gouverneur Morris, framed that instrument to vest sweeping implied powers in the Government of the United States, including but not limited to: (1) all the powers to which any nation would be entitled under the law of nations, (2) all the powers that Blackstone and other writers had explained were tacitly possessed by any legal corporation, (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 individual States, and (4) the power to fulfill all the purposes for which the Government of the United States was formed, including those ends enumerated in the Preamble and General Welfare Clause. The essay responds to some familiar objections to this thesis, with particular reference to the ratification of the Constitution, controversies in the First Congress, early congressional practice, and other evidence of original public meaning. Finally, the essay touches on the implications of this thesis for our understanding of “the federal consensus” and the disputes between later abolitionists, such as William Lloyd Garrison and Frederick Douglass, over the constitutional powers of the United States to abolish slavery.

Keywords: Constitution, Federalist, Anti-Federalist, Preamble, General Welfare Clause, Necessary and Proper Clause, James Wilson, Gouverneur Morris, James Madison, Patrick Henry, George Mason, slavery, abolition, federal consensus, implied powers

Suggested Citation

Mikhail, John, The Original Federalist Theory of Implied Powers (December 16, 2022). Harvard Journal of Law and Public Policy, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4305135 or http://dx.doi.org/10.2139/ssrn.4305135

John Mikhail (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9392 (Phone)
202-662-9409 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
243
Abstract Views
774
Rank
238,306
PlumX Metrics