The Fight Over Power – Part II Federalists vs The Fight Over Power – Part II Federalists vs. Anti-federalists Loose Constructionism vs. Strict Constructionism Does Congress have more power than what is written in the Constitution? Implied Powers?

The Antifederalists won a huge victory when the Federalists agreed to adopt a national Bill of Rights. However, soon after George Washington took office another dispute between the Federalists and Anti-federalists emerged: does Congress have additional powers not specified (written) in the Constitution. The Anti-federalists, like Patrick Henry, were like WTF dude?

Our first Secretary of the Treasury, Alexander Hamilton, believed that a Bank of the United States needed to be created in order to take care of the nation’s finances (taxes, loans and foreign debts). Antifederalists, like George Mason howled in disagreement. They pointed out that the Constitution said nothing about the national government having the power to create a National Bank.

However, Congress and President Washington passed a bill to create the First Bank of the United States. They said that the national government did have this power thanks to Article I Section VIII of the Constitution’ also known as the Necessary and Proper Clause, “The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”. This clause is sometimes known as the “Elastic Clause” and the powers coming from it are known as the Implied Powers.

Since Congress had the power to tax, it was necessary and proper for Congress to create a bank to house that tax money. Federalists believed in “loose constructionism”, meaning that the powers of the national government were not only those enumerated in the Constitution and that the powers of Congress could grow over time. The Anti federalists, like John Hancock, were like, it’s on. Let’s tar and feather those damn federalists!!

Anti-federalists countered that the creation of “banks” was only a state power and that the national government has no “Implied Powers”. They were very upset because the national government would only become more powerful if the Implied Powers actually existed. Antifederalists believed in “strict constructionism”, meaning that Congress only had those powers specified in the Constitution.

Chief Justice of the US Supreme Court 1801 -1835 John Marshall Chief Justice of the US Supreme Court 1801 -1835 One man would determine whether or not “implied powers” actually existed. His name was John Marshall, Chief Justice of the Supreme Court from 1801 to 1835. In terms of power, whatever the Supreme Court says about a law is the final word on the matter. The only way Congress and the President can get around a Supreme Court decision is by creating a new amendment to the Constitution, which takes a lot of time and is very hard to do. As head of the Supreme Court John Marshall had a lot of power and his rulings impacted the power of the national and state governments.

Important Cases Decided by Marshall Marbury v. Madison, 1803 – Started the process of judicial review. Now the Supreme Court has a new power . . . deciding whether or not any law violates the Constitution or its amendments. Laws that the Supreme Court rule as unconstitutional no longer exist. Judicial review gave the court the ultimate power. They have the final say!

McCulloch v. Maryland, 1819 – this is the case that decided the issue of implied powers. Marshall and the court ruled that Congress does have implied powers and one of those is creating a bank. The ruling was a defeat for Jefferson-Republicans (anti-federalist) and a win for “loose construction” (federalists). APPROVED

Gibbons v. Ogden, 1824 – basically Marshall and court told the states that Congress was in charge of all foreign and interstate commerce. Again states lose power!

All of Marshall’s ruling increased federal (national) power and decreased state powers. The Marbury v. Madison ruling also increased the power of the Supreme Court. Obviously John Marshall was a Federalist and a supporter of loose constructionism.