[Also on edit - There is an extraordinary discussion of the history of American law at http://rationalrevolution.net/articles/ten_commandments.htm, which discusses the many and sometimes extreme differences of opinion among the 'founders,' and thus demonstrates the fact there there was no single intent of the 'founders.' As there were many differences, there could not be an "original intent."]
In the first Federalist Paper, Alexander Hamilton wrote:
"An enlightened zeal for the energy and efficiency of government will be stigmatized."
Today's conservatives are living proof of the drive of some to stigmatize an energetic and effective federal government. They claim the mantle of authority of the Founding Fathers as described in the Federalist Papers. But "in the cold bright light of waking reality,"* in many respects they are the repudiation of the principles laid out in them
Many conservatives believe, consciously or unconsciously, that "government is the problem, as President Reagan so grandly announced
Many liberal democrats believe that government can be a powerful engine for good, and it the vehicle "to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." (Preamble, US Constitution.)
Conservatives strongly argue that with our Constitution the "Founding Fathers" intended that the federal government be "limited" both in power and size. A conservative idea which has recently gained wide attention is the "Tenther" idea that unless a power is specifically named in the constitution, it does not and cannot exist at the federal level.
Those views are not supported in the Constitution itself or in the writings of the Founders.
In the Federalist Papers, the Founders tell us that the two central limitations on government powers are (1) the checks and balances among the three branches of government, and (2) the power of the people to regularly vote: "governments are instituted among men, deriving their just powers from the consent of the governed." (Declaration of Independence.)
Conservatives often cite the Federalist Papers as authority for their views on "limited government." They often cite the many times that word is used, but usually ignore the discussions in which that word is used, and, indeed, they have completely ignored Hamilton's definition of a "limited constitution." (See below.)
The Federalist Papers were written when it had become clear that the original Articles of Confederation had failed because of a central government with very limited powers. The Constitutional Convention was convened, and the Constitution we now have was drafted. The Federalist Papers were written to support the newly proposed Constitution.
There were, of course, people who denied that the Articles of Confederation had failed, and they preferred the very limited powers thereunder.
Because most people believed the Articles had failed, the draft of the new Constitution expanded the powers of the central government. The writers of the Federalist Papers (who supported the expanded role) were determined to ease the concerns of the anti-federalists, and thus, they spoke of the new Constitution as being "limited," using that term in that context a number of times in the eighty five Federalist Papers
In the 1700s, the model of an "unlimited" government was a monarch with vast powers, making laws, judging laws and administering them were mostly concentrated in the one person, the King: to them a limited government is something with less concentrated power than a monarch has.
Limited Government in the Eyes of the Federalists
How did the Founders actually define the concept of a limited government? Did the Founders hold the Tenther idea that for the federal government to have a certain power, it had to be specifically mentioned?
Hamilton wrote: "By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like." [Emphasis added.]
This, the most direct "refudiation" of the Tenthers.
Hamilton didn't think a power had to be specifically named to exist, he though it had to be specifically denied to not exist.
For example, in Federalist Papers 8 and 24, Hamilton noted that the Constitution does not specifically mention standing armies, and yet he had no doubt that they were constitutionally permissible, not withstanding the two year funding limitation.
Similarly in Federalist 81, discussing the powers of the Supreme Court, Hamilton noted: "In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution...." [Emphasis in the original.]
And in Federalist 29, he specifically invoked the Article II "necessary and proper" clause to show that congress has powers not specifically enumerated.
Governmental Power and Wisdom
How about reading the Constitution restrictively? Was Hamilton worried that the new Constitution might be read by some too restrictively?
In Federalist 25 he wrote "Wise politicians will be cautious about fettering the government with restrictions that cannot be observed...."
Indirectly, Hamilton suggests that today's advocates of a "small, weak federal government" are, by that very idea, unwise.
What Did the Federalists View as the Limits on the Federal Government?
One might ask, how did the FF's conceive of a constitution which could be both expansively read as also providing for a limited government?
First, as noted, they were working in the context of having recently left a government ruled by a monarch. King George was their vision of an unlimited government.
The checks and balances they wrote into the Constitution, wherein each branch of government serves to check the power of the other branches was to them, a foundational element of a "limited government." (See Federalist 51.)
Similarly, as described in Federalist 53, written by either Hamilton or Madison, they viewed regular frequent votes for congressmen serving in the House of Representatives as a method of limiting government.
The Founders, in the voice of the Federalists, did not view "limited government" as being defined by size or presumptive limitations on powers being exercised; they didn't believe that unless specifically mentioned a power didn't exist: they viewed limits on government as resting in the checks and balances of our system and in the citizens right to vote.
The Founders recognized that the "necessary and proper clause" gives birth and legitimacy to powers which are not specifically mentioned.
Those who argue that a "limited government" is one with very limited powers are both "unwise," in Hamilton's words, and, often, are those who benefit from such limitations, who benefit from accumulations of unchecked and unbalanced corporate, mercantile, and back room political power.
Perhaps In Federalist 1, Hamilton demonstrated a prophetic vision of today's political climate:
"And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty."
* The cold bright light of waking reality was a recurring phrase of Professor Grant Gilmore, legal scholar and historian extraordinaire.