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for [in establishing the Bank of the United States]. These explanations were the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the states. He read several of the articles proposed, remarking particularly on the 11th and 12th. [T]he former, as guarding against a latitude of interpretation—the latter, as excluding every source of power not within the constitution itself.”27 Madison concluded: “[I]f the power were in the constitution, the immediate exercise of it cannot be essential—if not there, the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation, levelling all the barriers which limit the powers of the general government, and protect those of the state governments.”28

The Ninth and Tenth amendments, treated as mostly superfluous today, were fundamental to the Constitution’s ratification and interpretation. Moreover, it is undeniable that the Constitution would not have been ratified but for a bill of rights, including these two amendments. Clearly, the most consequential Anti-Federalists and Federalists, at the federal and state levels, were of one mind in securing state sovereignty and preventing the federal government from evolving into a centralized despotism. Separation of powers, the enumeration of powers, and the explicit provision for state sovereignty were essential characteristics of the new constitutional republic.

LEGISLATORS

In determining the makeup of Congress, after much debate the delegates agreed to “The Great Compromise,” offered by Roger Sherman of Connecticut, in which the members of the House of Representatives would be selected on the basis of the population within the states, and the members of the Senate would be selected by the states based on equal representation.

Article 1, Section 2, Clause 1 of the Constitution provides: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

Article 1, Section 3, Clause 1: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

Although Montesquieu favored proportional representation, his observation respecting proportional and equal representation within a national legislature was known to the delegates and obviously influenced their design. Montesquieu wrote, “It is unlikely that the states that associate will be of the same size and have equal power. The republic of the Lycians was an association of twenty-three towns; the large ones had three votes in the common council; the medium-sized ones, two; the small ones, one. The republic of Holland is composed of seven provinces, large and small, each having one vote” (2, 9, 3).

JUDGES

Montesquieu was adamant that a republican government required a judiciary unencumbered by the political pressures and influences of the legislature and executive but faithful to the text of the laws the legislature composed when exercising its adjudicative duties. “The power of judging should not be given to a permanent senate but should be exercised by persons drawn from the body of the people at certain times of the year in the manner prescribed by law to form a tribunal which lasts only as long as necessity requires.… But though tribunals should not be fixed, judgments should be fixed to such a degree that they are never anything but a precise text of the law. If judgments were the individual opinion of a judge, one would live in this society without knowing precisely what engagements one has contracted” (2, 2, 6).

The Constitution created the Supreme Court and granted Congress the power to create inferior courts. Article 3, Section 1, Clause 1 of the Constitution provides: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress