35
Virginia that “Mr. Wilson’s sophism has no weight with me when he declares … that in this
Constitution we retain all we do not give up, because I cannot observe on what foundation he has
rested this curious observation.”
97
The Anti-Federalists also deduced the falsity of Wilson’s doctrine of reserved powers
from the specific limitations on Congress found in the section that follows the grant of powers.
Section 9 of Article I prohibits Congress, for instance, from enacting ex post facto laws or bills
of attainder, from giving titles of nobility, and from limiting the importation of slaves before
1808. The Anti-Federalist deduced that there was no need for the express prohibitions of section
9 unless Congress had an implied power to do these things without the prohibitions.
98
“Where is
the power [to give of titles of nobility] expressly given to Congress by the new constitution?”
asked A Republican, “[I]f is not, [and it is not], then the exceptions must be to guard against an
incidental or implied power?”
99
“[P]ermit me, sir, to ask,” Cincinnatus asked Wilson
enumerated or reserved by the Constitution and Congress may judge what is necessary and proper in all cases
whatsoever) reprinted in 13 D
OCUMENTARY HISTORY 399, 402.
97
Letter from George Lee Tuberville to Arthur Lee (Oct. 28, 1787), in 13 DOCUMENTARY HISTORY 505, 506.
98
Letter from Thomas B. Wait to George Thatcher (Jan. 8, 1788), in 15 DOCUMENTARY HISTORY 284, 285 (pointing
to prohibitions on suspension of Habeas Corpus, ex post facto laws, bills of attainder, titles of nobility, and payment
from Treasury without appropriation as powers that must have been in the power of Congress by implication
because they are specifically prohibited); Brutus II, N
EW YORK J. (Nov. 1, 1787), reprinted in 13 DOCUMENTARY
HISTORY 524, 528 (asking, “If everything which is not given is reserved, what propriety is there in these exceptions
[no bill of attainder, title of nobility and etc]?” ); Patrick Henry, Speech to the Virginia Ratification Convention
(June 17, 1788), in 3 E
LLIOT’S DEBATES 461 (saying that Congress being able to suspend habeas corpus in
circumstances where not prohibited, “destroys their doctrine” of no implied powers).
99
See, e.g., A Republican I, To James Wilson, Esquire, NEW YORK J. (Oct. 25, 1787), reprinted in 13
D
OCUMENTARY HISTORY 477, 479. The Articles of Confederation, article VI, also barred Congress from giving