The revolution of 1787-1791 overthrew a constitution that strictly limited the federal government in favor of one with general welfare and necessary and proper clauses that allowed the federal government to absorb state powers over time. It also tossed out the dogma of separation of powers in favor of a more sophisticated balance of powers. When the states proposed to put that dogma back in the Constitution by Amendment and James Madison convinced the House of Representatives to include it in its Amendment package, the Senate, with its extensive executive powers, disagreed to it.1 Almost all Federalists claimed the Constitution was…
In response to: The Constitution’s Structural Limitations on Power Should Be the Focus of the Bill of Rights
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There is much to commend Professor Garry’s essay. He is eminently correct in saying that the Constitution contemplated a limited government. Whether it adhered to a “limited government model” is a different issue. What is more than curious, however, is Professor Garry’s statement that the “the overall scheme of the original Constitution” is primarily concerned with…
Patrick Garry’s essay “The Constitution’s Structural Limits on Power Should Be the Focus of the Bill of Rights” contains many valuable insights. In particular, it re-affirms the proposition – lost for many years but perhaps gaining some new currency – that the so-called “structural” provisions of the Constitution are, and were intended to be, not…
