The Naturalization Act was the first of the four laws. It passed on June 18, 1798, and extended the amount of time immigrants were required to live in the United States before becoming eligible for citizenship from five to 14 years.
The Alien Friends Act (An Act Concerning Aliens) passed Congress on June 25, 1798, and gave the president sweeping power to deport “dangerous” aliens. It read, in part:
“It shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States,
within such time as shall be expressed in such order.”
On July 6, Congress passed the An Act Respecting Alien Enemies, authorizing the arrest, imprisonment and deportation of any male who was a citizen of a nation at war with the U.S., even without any evidence he was an actual threat. There was no provision for judicial due process. It read, in part:
“All natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.”
Finally, Congress passed the Sedition Act on July 14. It effectively outlawed criticizing the Congress or the president. It declared any “treasonable activity” a high misdemeanor punishable by fine and imprisonment. Treasonable activity included “any false, scandalous and malicious writing” against the government or its officials. It read, in part:
“If any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”
The Alien and Sedition Acts raised a host of constitutional issues and Madison vehemently opposed them. In the Virginia Resolutions, he said they contained “palpable and alarming infractions of the Constitution,” that dangerously expanded the powers of the federal government:
“That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.”
Unsurprisingly, supporters of the Alien and Sedition Acts took umbrage at Madison’s characterization of the laws and rushed to defend them – in effect proving Madison’s point. They turned to expansive readings of the Constitution’s general welfare clause, the necessary and proper clause, federal supremacy and the preamble to justify the expansion of power.
Madison’s response in the Report of 1800 tore those arguments to shreds.
In the following sections, we will dissect several constitutional issues through the lens of Madison’s Report of 1800. By analyzing Madison’s arguments, we gain a deeper understanding of constitutional originalism, as well as the forces that have always longed
Who decides the constitutionality of a federal action? Most people immediately answer, “Why, the Supreme Court, of course.”
But if you stop and think about it, this doesn’t make a whole lot of sense. If the founders intended to create a federal government with limited power – and they clearly did – would they really put part of the federal government in charge of defining the limits of federal powers?
James Madison didn’t think so.
Supreme Court Authority
In fact, he alluded to this principle in Federalist #10 before the Constitution was even ratified. “No man is allowed to be a judge in his own case, because his interest would certainly bias his judgment, and not improbably, corrupt his integrity.” When the Kentucky and Virginia legislatures declared the Alien and Sedition Acts unconstitutional, some supporters of these federal laws claimed the states had no authority to weigh in on issues of constitutionality. They claimed it was solely the role of the Supreme Court.
Madison rejected this notion, arguing that since the states formed the Union and delegated powers to the general government to begin with, the states have a say in determining when the Constitution has been violated. He based his reasoning on the very nature of the constitutional system.
“It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts; that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made, has been pursued or violated. The constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the constitution, that it rests on this legitimate and solid foundation. The states then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
He went on to directly address the idea that the Supreme Court is the “sole expositor of the Constitution.”
“But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort; and it may be asked for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner.
“On this objection it might be observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.
“However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”
Madison relied on the very logic of the constitutional system itself to prove the Supreme Court cannot be absolutely supreme. While the SCOTUS is the highest court in the United States federal judicial system, and has the highest judicial authority, it is not superior to the states and doesn’t possess supreme authority in the constitutional system.
The notion that one branch of the federal government somehow enjoys absolute supremacy unravels the entire constitutional system. It sets the created above the creator and makes the federal government truly unlimited.
The political societies that formed the union in the first place remain supreme. The court is merely an agent of those political societies. When the proverbial rubber meets the road, the people of the states always have the final say in America’s constitutional system. To say otherwise transforms it into something altogether different.
Thomas Jefferson summed this up in the Kentucky Resolutions of 1798.
“The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.”
when John Adams signed the three acts relating to aliens into law.
What the Preamble Tells Us
While the preamble does not tell us anything about the extent of government power, it does reveal to us where that power comes from. Have you ever stopped to think about why the opening words of the U.S. Constitution – We the People – appear in large, ornate letters? It’s actually significant. When an 18th century British king issued a grant, his name always appeared at the top in the same fashion. The framers of the Constitution merely replaced the king’s name with “We the People,” signifying the sovereign authority from which the delegation of power flowed. In other words, all authority in the United States ultimately flows from the people, not the government.
In the British system, the “King in Parliament” was sovereign. In practice, Parliament exercised ultimate authority with the king serving as the arm to put its power into action. The British developed a constitutional system, but not in the same sense as the Constitution for the United States. Their constitution was not written. In the British system, no distinction existed between “the constitution,” or “frame of government” and “the system of laws.” They were one and the same. Every act of Parliament was, in essence, part of the constitution. It was an absurdity to argue an act of Parliament was “unconstitutional.” Since it was sovereign, anything Parliament did was, by definition, constitutional.
In the years leading up to the War for Independence, some began to question this theory of political power. Instead, they began to view a constitution as something existing above the government. The colonists ultimately rejected the idea that governments form the constitution and instead conceived of the constitution as something that binds and forms government. The written U.S. Constitution established by “we the people” reflects this shift.
But “we the people” does not mean the “whole people,” singularly, nor every person in America taken together as one giant glob. The founders understood this to mean “we the people of the several states.” In fact, as originally drafted, the preamble listed every state.
“We the people of Connecticut, Delaware, Georgia…etc.”
So why did the committee of style change the wording to simply “we the people?” Because there was no guarantee every state would ratify. Say Rhode Island decided not to join the union. It would have made no sense to have it listed if it didn’t ratify. The change in style was for that purpose, not a reflection of a change in how the framers viewed sovereignty.
With the ratification of the Constitution, the states remained the preeminent political societies in the American system. As stated in the preamble, the primary purpose of the Constitution was to create “a more perfect union.” This implies the document did not create a new union, but merely built upon the existing union established by the Articles of Confederation.
America’s original constitution explicitly affirmed the independence and sovereignty of the states. This basic structure carried over into the new constitution. James Madison explained this concept in his Report of 1800. In the Virginia Resolutions, Madison asserted “that the states are parties to the Constitution or compact.” By this, he meant the people of the states created the union. He further explained this idea in the Report.
“It is indeed true, that the term ‘states,’ is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus, it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and, lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever different constructions of the term “states,” in the resolution, may have been entertained, all will at least concur in that last mentioned; because, in that sense, the Constitution was submitted to the ‘states,’ in that sense the “states” ratified it; and, in that sense of the term ‘states,’ they are consequently parties to the compact, from which the powers of the federal government result.” [Emphasis added]
In short, the people, organized into political societies known as states, are sovereign in the American system.
Along with revealing the ultimate source of authority in the United States, the preamble also establishes the general purposes of the union and the objectives of the general government created by the Constitution.
In a nutshell, the reasons spelled out in the preamble answer this question: why did the people of the states form a union? The answer: to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.
What the Preamble Doesn’t Tell Us
While the preamble outlines the broad objectives of the federal government, it does not confer any authority to it at all. Delegation of powers follow in the various articles. Article I, Section 8 delegates specific enumerated powers to Congress. Article II delegates specific powers to the president. Article III establishes the authority of the judiciary. Without the delegation of powers that follow, the preamble is nothing but a poetic list of objectives with no mechanism to carry them into effect.
Many people don’t understand this. They believe the preamble empowers the federal government to take virtually any action necessary to achieve the Constitution’s stated objectives. As a result, they point to it to justify all kinds of unconstitutional federal actions. They believe that the federal government can do anything and everything to “provide for the common defense,” or to “promote the general welfare,” or to “secure the blessings of liberty.”
Some people began abusing the words of the preamble almost before the ink was dry. Early on, power-seekers attempting to expand the scope of federal authority argued that the preamble authorized their actions. In fact, defenders of the Alien and Sedition Acts resorted to this tactic. Madison dispensed with their arguments in the Report of 1800.
“They will waste but little time on the attempt to cover the act by the preamble to the constitution; it being contrary to every acknowledged rule of construction, to set up this part of an instrument, in opposition to the plain meaning, expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissable effect, of rendering nugatory or improper, every part of the constitution which succeeds the preamble.”
The preamble is like the introduction to a book. It gives you a general idea as to what the book is about. But you would never write a book report just by reading the introduction – that is if you care about getting a decent grade. Anybody trying to justify federal actions through the words of the preamble is almost certainly expanding government power beyond its constitutional bounds. The preamble tells us a little, but it doesn’t reveal a lot. People need to keep those well-known words in their“Necessary and proper” ranks among the most abused clauses in the Constitution. It has been dubbed the “elastic clause” because of the perception that it allows the scope of federal power to expand at will.
The federal government began abusing this clause within years of ratification. In fact, it was one of the justifications used to support the constitutionality of the Alien and Sedition Acts.
The necessary and proper clause simply states that Congress has the power, “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 Officer thereof.”
Necessary and Proper
During the ratification debates, anti-federalists warned that the central government would abuse the clause to expand power, but supporters of the Constitution swore it would not. Even Alexander Hamilton argued that necessary and proper didn’t add to the government’s power.
In Federalist #33, Hamilton addressed both the necessary and proper clause and the also oftabused supremacy clause.
“It may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. 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.”
It didn’t take long for proponents of centralized federal power to turn to the necessary and proper clause to justify unconstitutional actions. Hamilton did a 180 and used the clause to justify chartering the First Bank of the United States. A few years later, supporters of the Alien and Sedition Acts dusted off the clause and used it as well. In the Report of 1800, Madison addressed this appeal to the necessary and proper clause, ironically echoing what Hamilton had written years earlier. Madison argued that the clause does nothing to expand the powers of the general government, forcefully arguing it is not elastic at all and doesn’t give the government any additional powers.
“The plain import of this clause is, that Congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.”
Madison went on to offer a simple 2-step process to determine the constitutionality of any federal action.
“Whenever, therefore a question arises concerning the constitutionality of a particular power; the first question is, whether the power be expressed in the constitution. If it be, the question is decided.”
If a delegated power exists authorizing the federal action, that settles the issue. Nobody argues that the federal government can’t run a post office. Article I Sec. 8 expressly authorizes this. But no delegated power is found, Madison prescribes a second step.
“If it [the power] be not expressed; the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not; Congress cannot exercise it.”
In other words, if the federal action is absolutely necessary to carry out a power clearly spelled out in the Constitution, and it is a proper, or customary, way of doing so, then, as Madison put it, “it may be exercised by Congress. If it be not; Congress cannot exercise it. Legal documents delegating power to an agent often contain a necessary and proper clause. It has a precise legal definition that was well-understood in the founding era. In simplest terms, a necessary and proper clause authorizes an agent to exercise powers not expressly spelled out in the legal document, but necessary to execute the specific authority given to him. It serves as a kind of shorthand and eliminates the need to list every incidental power the agent can exercise.
Imagine I enter into a contract with somebody to manage my grocery store. If it stipulates that she has all of the powers “necessary and proper” to running a grocery, I don’t have to to specify that she has the authority to pay a guy to clean the floors, or to hire a mechanic to fix a freezer when it goes down, or to pay the soda vendor. Those powers are proper and customary to running a grocery store. But necessary and proper powers wouldn’t give my new manager the authority to give away all of the food in my store and turn it into a hardware shop. That would not be necessary, nor would it be proper. Judges and elected officials have expanded the meaning of necessary and proper far beyond its meaning. Madison clearly argues their view was not the intent.
The General Welfare
The words “provide for the common defense and general welfare” have opened the door to yet another avenue for the expansion of federal power. I often refer to this as the “anything and everything clause.”
Partisans on both the political left and right use “general welfare and common defense” to justify all kinds of federal actions, from wars to social welfare programs. Federal supremacists take the words quite literally, arguing that they authorize the federal government to do absolutely anything, as long as it furthers the general welfare or provides for the common defense – however broadly they may define those words. But this view unravels the entire constitutional structure.
General Welfare and Common Defense
Time after time during the ratification process, supporters of the Constitution swore it created a government with limited powers. How can a government possessing the authority to take any action for the general welfare and common defense be considered “limited” in any sense?
As Madison put it in a letter to Edmund Pendleton dated Jan. 21, 1792, he considered this expansive view of providing for the common defense “as subverting the fundamental and characteristic principle of the Government, as contrary to the true & fair, as well as the received construction, and as bidding defiance to the sense in which the Constitution is known to have been proposed, advocated and adopted.”
Supporters of the Alien and Sedition Act often justified the laws with an appeal to the the common defense and general welfare clause. But Madison asserted that the phrase “provide for the common defense and general welfare” was copied from the Articles of Confederation, and we find its meaning there. Madison expanded on this idea in his Report of 1800, and totally obliterates arguments for an expansive reading of the clause.
The other questions presenting themselves, are—1. Whether indications have appeared of a design to expound certain general phrases copied from the “articles of confederation,” so as to destroy the effect of the particular enumeration explaining and limiting their meaning…In the “articles of confederation” the phrases are used as follows, in article VIII.
“All charges of war, and all other expences that shall be incurred for the common defence and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land within each state, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.”
In the existing constitution, they make the following part of section 8.
“The Congress shall have power, to lay and collect taxes, duties, imposts and excises to pay the debts, and provide for the common defence and general welfare of the United States.”
This similarity in the use of these phrases in the two great federal charters, might well be considered, as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said that in the former they were ever understood to be either a general grant of power, or to authorize the requisition or application of money by the old Congress to the common defence and general welfare, except in the cases afterwards enumerated which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present constitution, it can never be supposed that when copied into this constitution, a different meaning ought to be attached to them.
That notwithstanding this remarkable security against misconstruction, a design has been indicated to expound these phrases in the Constitution so as to destroy the effect of the particular enumeration of powers by which it explains and limits them, must have fallen under the observation of those who have attended to the course of public transactions. Not to multiply proofs on this subject, it will suffice to refer to the debates of the Federal Legislature in which arguments have on different occasions been drawn, with apparent effect from
these phrases in their indefinite meaning…
Now whether the phrases in question be construed to authorize every measure relating to the common defence and general welfare, as contended by some; or every measure only in which there might be an application of money, as suggested by the caution of others, the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers, which follow these general phrases in the Constitution. For it is evident that there is not a single power whatever, which may not have some reference to the common defence, or the general welfare; nor a power of any magnitude which in its exercise does not involve or admit an application of money. The government therefore which possesses power in either one or other of these extents, is a government without the limitations formed by a particular enumeration of powers; and consequently the meaning and effect of this particular enumeration, is destroyed by the exposition given to
these general phrases.
To these indications might be added without looking farther, the official report on manufactures by the late Secretary of the Treasury, made on the 5th of December, 1791; and the report of a committee of Congress in January 1797, on the promotion of agriculture. In the first of these it is expressly contended to belong
“to the discretion of the National legislature to pronounce upon the objects which concern the general welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, are within the sphere of the national councils, as far as regards an application of money.”
The latter report assumes the same latitude of power in the national councils and applies it to the encouragement of agriculture, by means of a society to be established at the seat of government. Although neither of these reports may have received the sanction of a law carrying it into effect; yet, on the other hand, the extraordinary doctrine contained in both, has passed without the slightest positive mark of disapprobation from the authority to which it was addressed.
Now whether the phrases in question be construed to authorise every measure relating to the common defence and general welfare, as contended by some; or every measure only in which there might be an application of money, as suggested by the caution of others, the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers, which follow these general phrases in the Constitution. For it is evident that there is not a single power whatever, which may not have some reference to the common defence, or the general welfare; nor a power of any magnitude which in its exercise does not involve or admit an application of money. The government therefore which possesses power in either one or other of these extents, is a government without the limitations formed by a particular enumeration of powers; and consequently the meaning and effect of this particular enumeration, is destroyed by the exposition given to these general phrases.
Most Americans reflexively assume the federal government has absolute control over immigration matters. But Madison’s response to the country’s first immigration crisis casts doubt on this idea. In fact, Madison clearly believed states exercise the primary role in controlling who is allowed within their borders.
The Constitution does not expressly delegate any power to the federal government to regulate immigration. Article I Sec. 8 delegates to Congress the authority “to establish an uniform Rule of Naturalization.” But naturalization only relates to granting citizenship.
The authority to deport aliens became a contentious issue in 1798 when John Adams signed the three acts relating to aliens into law.
The Naturalization Act caused some controversy for political reasons, but didn’t raise any constitutional issues. Writing rules of naturalization clearly falls within the federal government’s enumerated powers.
Democrat-Republicans, including Madison and Thomas Jefferson, primarily opposed the Alien Acts because they violated the Fifth Amendment by denying due-process. They also argued the acts were unconstitutional because they placed judicial powers in the hands of the executive branch. But in his Report of 1800, Madison also argued that the Act Concerning Aliens
violated the Tenth Amendment by asserting power over resident aliens. Madison denied the federal government had any such authority and said it was rightly the role of a state to determine who was allowed within its own borders. Madison begins by distinguishing between alien enemies and alien friends. He admits Congress does have power over alien enemies, but denies the same authority extends to citizens of countries with which the U.S. is not at war.
“With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens, who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress, is denied to be constitutional.”
Here, Madison plainly asserts that Congress does not have the authority to deport noncitizens, nor does the president. He hints at this again a few paragraphs later. Supporters of the Alien Act claimed that admittance into the U.S. is a “favor,” not a “right.” As such, it can be revoked at any time.
Madison said even if this were the case, it would not prove the Alien Act constitutional.
“A question would still occur, whether the constitution had vested the discretionary power of admitting aliens in the federal government or in the state governments.”
Madison then addresses an argument based on the law of nations. Supporters of the Alien Act claimed aliens may be removed “at discretion, for offenses against the law of nations.” But Madison again turns to the distinction between alien enemies and alien friends.
“The distinction between alien enemies and alien friends, is a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.”
Again, Madison says the federal government does not have any authority over persons welcomed within the borders of a state. He goes on to expand on the distinction between alien friends and alien enemies even further by considering the various offenses an alien can commit.
“Offences for which aliens within the jurisdiction of a country, are punishable, are first, offences committed by the nation of which they make a part, and in whose offences they are involved: Secondly, offences committed by themselves alone, without any charge against the nation to which they belong. The first is the case of alien enemies; the second the case of alien friends. In the first case, the offending nation can no otherwise be punished than by war, one of the laws of which authorizes the expulsion of such of its members, as may be found within the country, against which the offence has been committed. In the second case, the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations; the individual only, and not the nation is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations. Under this view of the subject, the act of Congress, for the removal of alien enemies, being conformable to the law of nations, is justified by the constitution: and the ‘act,’ for the removal of alien friends, being repugnant to the constitutional principles of municipal law, is unjustifiable.”
Here we find Madison’s most emphatic statement regarding the deportation of alien friends by the federal government. He calls it “repugnant.”
While Madison’s arguments in the Report of 1800 themselves don’t prove beyond a doubt that the federal government only has limited power over immigration, they certainly strongly support this position. Madison builds his case on the most fundamental constitutional principle.
“In the first place; it is to be borne in mind, that it being a characteristic feature of the Federal constitution, as it was originally ratified, and an amendment thereto having precisely declared, ‘That the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people’; it is incumbent in this, as in every other exercise of power by the federal government, to prove from the constitution, that it grants the particular power exercised.”
As the saying goes, the winners write the history.
Even a cursory study of the ratification period confirms the people of the states ratified the Constitution based on the belief that it would create a general government with limited enumerated powers. Every supporter of ratification sold it on this premise. Even those yearning for a strong national government such as Alexander Hamilton and James Wilson argued that federal power would remain limited under the proposed constitutional system.
It’s not even arguable: the Constitution was written and ratified to create a limited government, with virtually all power remaining with the states and the people. The fact that some in the founding generation almost immediately reversed course and began advocating the exact opposite doesn’t change the truth. Unfortunately, by the end of the Civil War, the supporters of a strong national government dominating the states had won. Today, the constitutional system is a shadow of its former self. The states are effectively relegated to the role of corporations with the federal government wielding almost absolute power.
As a result, virtually every lawyer, academic expert, politician and history teacher in America peddles a federal supremacist reading of the Constitution. It has become indisputable dogma. Nevertheless, Madison’s arguments in the Report of 1800 stand the test of time. The “Father of the Constitution” offers us a glimpse at the original understanding of the Constitution, even as
opportunistic pundits and politicians bastardize it in pursuit of their own agendas.
Instead of basing our view of the Constitution on modern legal experts and Supreme Court opinions, we should turn to sources such as the Report of 1800. It reflects the understanding of the ratifiers, and as Madison himself argued in a letter to Henry Lee, that’s where we find the true meaning of the Constitution.
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!”
The Report of 1800 isn’t a comprehensive exposition of the Constitution, but it does provide valuable insights into the sense in which it was accepted and ratified. As such, it offers valuable insight into the Constitution.