Maggie's Farm

The way the federal constitution was written practically required a Bill of Rights. Though it was claimed by the federalists that the Congress had only the powers enumerated in Article 1 Section 8, three arguments militated against that interpretation.

1. The constitution did not explicitly say Congress would have only the powers listed, though the Articles of Confederation were explicit about that (Article II).

2. The necessary and proper clause could be open to very wide interpretation; such as, What if the Congress thought it necessary and proper to abridge the freedom of the press, or the right to keep and bear arms, in fulfillment of one of the enumerated powers?

3. Article 1 Section 9 enumerates powers denied to the Congress, such as the granting of a title of nobility. If the Congress has only the powers enumerated in Section 8, why did anything need to be prohibited in S9? (My own thinking is that the probhibitions in S9 counterbalance the necessary and proper clause; that is, none of the things prohibited in S9 can ever be argued as being necessary and proper).

Amendments 9 and 10 made the federal limitations explicit. However, all three branches of the federal government now operate as if the Ninth and Tenth amendments do not exist and, practically, as if the interstate commerce clause authorizes any and every action the Congress wants to take.

Indeed, the checks and balances designed in the federal constitution do not function. The only real check/balance anymore is the two-party system, such as it is.