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


     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 said that they have no power but what 
is expressly given to them, when by the very terms of their 
creation they are vested with the powers of making laws in all 
cases -necessary and proper; when from the nature of their power, 
they must necessarily be the judges what laws are necessary and 
proper. 
    The British act of Parliament, declaring the power of 
Parliament to make laws to bind America in all cases whatsoever, 
was not more extensive.  For it is as true as a maxim, that even 
the British Parliament neither could nor would pass any law in 
any case in which they did not either deem it necessary and 
proper to make such a law, or pretend to deem it so.  And in such 
cases it is not of a farthing consequence whether they really are 
of opinion that the law is necessary and proper, or only pretend 
to think so, for who can overrule their pretensions?  No one; 
unless we had a Bill of Rights, to which we might appeal and 
under which we might contend against any assumption of undue 
power, and appeal to the judicial branch of the government to 
protect us by their judgments.  This reasoning, I fear, is but 
too just.  And yet, if any man should doubt the truth of it, let 
me ask him one other question: What is the meaning of the latter 
part of the clause which vests the Congress with the authority of 
making all laws which shall be necessary and proper for carrying 
into execution all other powers (besides the foregoing powers 
vested, etc., etc.)? Was it thought that the foregoing powers 
might perhaps admit of some restraint, in their construction as 
to what was necessary and proper to carry them into execution?  
Or was it deemed right to add still further that they should not 
be restrained to the powers already named?  Besides the powers 
already mentioned, other powers may be assumed hereafter as 
contained by implication in this constitution.  The Congress 
shall judge of what is necessary and proper in all these cases, 
and in all other cases-in short, in all cases whatsoever. 
     Where then is the restraint? How are Congress bound down to 
the powers expressly given?  What is reserved, or can be 
reserved?  Yet even this is not all.  As if it were determined 
that no doubt should remain, by the sixth article of the 
Constitution it is declared that "this Constitution and the laws 
of the United States which shall be made in pursuance thereof, 
and all treaties made, or which shall be made, under the 
authority of the United States, shalt be the supreme law of the 
land, and the judges in every state shall be bound thereby, any 
thing in the Constitutions or laws of any State to the contrary 
notwithstanding." The Congress are therefore vested with the 
supreme legislative power, without control. In giving such 
immense, such unlimited powers, was there no necessity of a Bill 
of Rights, to secure to the people their liberties? 
     Is it not evident that we are left wholly dependent on the 
wisdom and virtue of the men who shall from time to time be the 
members of Congress?  And who shall be able to say seven years 
hence, the members of Congress will be wise and good men, or of 
the contrary character?