On October 20, 2023, I posted an essay on this website addressing the claim that the federal government has powers outside those enumerated in the Constitution. The usual basis for this claim of “inherent sovereign authority” is that upon Independence, sovereign power over foreign affairs, and perhaps other issues, was vested in the Second Continental Congress, which passed it to the Confederation Congress, which passed it directly to the federal government.

My article, and a scholarly research publication on which it was based, notes several problems with this theory. One is that neither the Continental nor the Confederation Congress actually held sovereign power. Congress was a mere collection of ambassadors, and the Articles of Confederation did not form a true “constitution,” but a treaty or league somewhat comparable to NATO today. If the Confederation Congress did not have sovereign power, it could not pass it to the federal government.

In 1819, Chief Justice John Marshall wrote a series of newspaper essays defending his court’s decision in McCulloch v. Maryland. Here is what he said about the Confederation:

“The confederation was, essentially, a league; and congress was a corps of ambassadors, to be recalled at the will of their masters. This corps could do nothing but declare war or make peace. They could neither carry on a war nor execute the articles of peace. They had a right to propose certain things to their sovereigns, and to require a compliance with their resolution; but they could, by their own power, execute nothing.”

Remember that Marshall was not only Chief Justice of the United States. He had served in the Revolution, lived through the time of the Confederation, and helped adopt the Constitution through his leadership at the 1788 Virginia ratifying convention. He knew that the Confederation Congress had no sovereign authority, inherent or otherwise, that it could pass onto the federal government.

A better authority on this point could hardly be found.

This article was originally published at the Independence Institute, and is reposted here with permission of the author.

Rob Natelson

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