Answers to Mason’s “Objections”: “Marcus” [James Iredell] IV

Norfolk and Portsmouth Journal (Virginia), March 12, 1788

Following are excerpts from James Iredell’s responses to George Mason’s “Objections” to the Constitution:

VIIIth. Objection. ‘Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper; so that the State Legislatures have no security for the powers now presumed to remain to them, or the people for their rights. There is no declaration of any kind for preserving the Liberty of the Press—the Trial by Jury in civil cases—nor against the danger of standing armies in time of peace.'”

Answer. The general clause at the end of the enumerated powers is as follows:—’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 United States, or in any department or office thereof.'”

“Those powers would be useless, except acts of Legislation could be exercises upon them. It was not possible for the Convention, nor is it for any human body, to foresee and provide for all contingent cases that may arise. Such cases must therefore be left to be provided for by the general Legislature, as they shall happen to come into existence. If Congress, under pretence of exercising the power delegated to them, should, in fact, by the exercise of any other power, usurp upon the rights of the different Legislatures, or of any private citizens, the people will be exactly in the same situation as if there had been an express provision against such power in particular, and yet they had presumed to exercise it. It would be an act of tyranny, against which no parchment stipulations can guard; and the Convention surely can be only answerable for the propriety of the powers given, not for the future virtues of all with whom those powers may be entrusted.”

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“The prerogative of the Crown having been grossly abused in some preceding reigns, it was thought proper to notice every grievance they had endured, and those declarations went to an abuse of power in the crown only, but were never intended to limit the authority of Parliament. Many of these articles of the Bill of Rights in England, without a due attention to the difference of the cases, were eagerly adopted when our Constitutions were formed, the minds of men then being so warmed with their exertions in the cause of liberty, as to lean too much perhaps toward a jealousy of power to repose a proper confidence in their own government. From these articles in the State Constitutions, many things were attempted to be transplanted into our new Constitution, which would either have been nugatory or improper: This is one of them. The expressions ‘unusual and severe,’ or ‘cruel and unusual,’ surely would have been too vague to have been of any consequence, since they admit of no clear and precise signification. If to guard against punishments being too severe, the Convention had enumerated a vast variety of cruel punishments, and prohibited the use of any of them, let the number have been ever so great, an inexhaustible fund must have been unmentioned, and if our government had been disposed to be cruel, their invention would only have been put to a little more trouble.”

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“The Liberty of the Press is always a grand topic for declamation; but the future Congress will have no other authority over this than to secure to authors for a limited time the exclusive privilege of publishing their works. This authority has long been exercised in England, where the press is as free as among ourselves, or in any country in the world, and surely such an encouragement to genius is no restraint on the liberty of the press, since men are allowed to publish what they please of their own; and so far as this may be deemed a restraint upon others it is certainly a reasonable one, and can be attended with no danger of copies not being sufficiently multiplied, because the interest of the proprietor will always induce him to publish a quantity fully equal to the demand—besides, that such encouragement may give birth to many excellent writings which would otherwise have never appeared. If the Congress should exercise any other power over the press than this, they will do it without any warrant from this Constitution, and must answer for it as for any other act of tyranny.”

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“The subject of a standing army has been exhausted in so masterly a manner in two or three numbers of the Fœderalist (a work which I hope will soon be in every body’s hands) that, but for the sake of regularity in answering Mr. Mason’s objections, I should not venture upon the same topic; . . . Considering the extensive services the general government may have to provide for upon this vast continent, no forces with any serious prospect of success, could be attempted to be raised for a shorter time. Its being done for so short a period, if there were any appearances of ill designs in the government, would afford time enough for the real friends of their country to sound an alarm; and when we know how easy it is to excite jealousy of any government, how difficult for the people to distinguish from their real friends, those factious men, who in every country are ready to disturb its peace for personal gratifications of their own, and those desperate ones to whom every change is welcome, we shall have much more reason to fear that the government may be overawed by groundless discontents, than that it should be able, if contrary to every probability such a government could be supposed willing, to effect any designs for the destruction of their own liberties, as well as those of their constituents: For surely we ought ever to remember, that there will not be a man in the government but who has been either mediately or immediately recently chosen by the people, and that for too limited a time to make any arbitrary designs, consistent with common sense, when every two years a new body of Representatives, with all the energy of popular feelings, will come to carry the strong force of a severe national controul, into every department of government; to say nothing of the one-third to compose the Senate, coming at the same time warm with popular sentiments from their respective Assemblies. Men may, to be sure, suggest dangers from any thing; but it may truly be said, that those who can seriously suggest the danger of a premeditated attack on the liberties of the people from such a government as this, could with ease assign reasons equally plausible for distrusting the integrity of any government formed in any manner whatever; and really it does seem to me, that all their reasons may be fairly carried to this position,—that in as much as any confidence in any men would be unwise, as we can give no power but what may be grossly abused, we had better give none at all, but continue as we are, or resolve into total anarchy at once, of which indeed, our present condition falls very little short. What sort of a government must that be, which, upon the most certain intelligence that hostilities were meditated against it, could take no method for its defence, till after a formal declaration of war, or the enemy’s standard was actually fixed upon the shore. The has for some time been out of fashion; but if it had not, the restraint these gentlemen recommend, would certainly have brought it into disuse with every Power who meant to make war upon America.”

The Constitution’s Necessary and Proper Clause provides a general outline of the contours of Congress’ power to legislate. It empowers Congress to create new laws that are necessary and proper that execute the government’s powers. Since the ratification of the Constitution, there has been ongoing debate as to the application of the words “necessary and proper,” which are inherently subjective. Taking them by their plain meaning, as Congress is controlled by different political parties and members of varying ideologies, it would follow that each Congress’ enactments would reflect a different understanding of what constitutes a “necessary and proper” piece of legislation. Iredell’s response to Mason’s “Objections” provides guidance for some who wish to decipher the Constitutional Convention’s meaning in writing these words into the Constitution.

Iredell extensively discusses the interaction between Congress and the state legislatures; and for good reason. Those who shared concerns with Mason that the federal government would impinge on states needed reassurance that the Constitution’s carving of power for Congress was not inevitably withholding power from the states. At the time of this writing, the Bill of Rights, which included the 10th Amendment, did not exist. The 10th Amendment’s language (“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”) ensured that Mason and others likeminded would be satisfied with clauses like the Necessary and Proper Clause.

The discussion in Iredell’s publication of freedom of the press is notable. He asserts that freedom of the press under the Constitution would allow for absolute freedom with one condition: that Congress enact legislation to protect writers’ works as intellectual property. The underlying reasoning for this near-absolute freedom was that where there is demand for a type of writing, supply will be inevitable, whether government-sanctioned or not. Then, even with the harmful writing that may emerge from such a policy, Iredell concludes that the benefit of having a wide spectrum of pieces of writing outweighs the cost of allowing the most harmful pieces into public discourse. Finally, he concludes that if Congress oversteps the Constitution’s prescription for freedom of the press, the people are presumed to keep Congress accountable.

Finally, Iredell takes up the issue of a standing army and persuasively argues in favor of it. One of the inherent dangers with a standing army is the misuse of it. Iredell reasons that misuse is a risk for each component of the government that should not be taken to be a reason for eliminating that component. More optimistically, he argues that it is better to have a government and its people endeavor to mitigate misuse and to embrace the system despite its flaws. Ultimately, the lack of a standing army would result in a defenseless country that could only be reactive to threats, never proactive. Even at the time of Iredell’s writing, having a reactive military was not a wise self-defense strategy.