Congress should
- start with first principles: "The Constitution creates a Federal Government of enumerated powers."
- recognize that the "Enumerated Powers Act" is already in the
Constitution.
Who cares about the Constitution?
Click
here to find out.
Today, a congressman such as Pete Stark can simply boast that the federal government "can do most
anything in this country." And Speaker of the House Nancy Pelosi won't even consider the constitutionality of a government
takeover of health care a "serious question." Given this state of affairs, it does not seem unreasonable to reflect on the
origins of the disdain for the Constitution in the Progressive Era.
Ronald Pestritto: Glenn
Beck, Progressives and Me - WSJ.com |
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The Concept of "Enumerated Powers"
The Federal Government only has the powers which "We the People" delegated to it in the Constitution.
"We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U. S. Const.,
Art. I, §8. As James Madison wrote, "[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to
remain in the State governments are numerous and indefinite." The Federalist No. 45, pp. 292-293 (C.
Rossiter ed. 1961 )."
Thus wrote Chief Justice Rehnquist, delivering the opinion of the U.S. Supreme Court in United
States v. Lopez, 514 U.S. 549 (1995). Rehnquist was correct, as virtually every legal scholar on both sides of the aisle will admit.
Let's look at what Madison said in a little more detail.
In Federalist 45, Madison described the relationship between the federal
government and the states in these famous words:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are
numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last
the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary
course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [emphasis
added]
The Tenth Amendment in the Bill of Rights summarizes the philosophy of the Constitution:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.
Lawrence H. Tribe, very liberal Professor of Constitutional Law at Harvard Law School, sums up the doctrine in his authoritative textbook, American
Constitutional Law :
It is noteworthy that article I, § 1 endows Congress not with “all legislative power,” but only with the “legislative powers herein granted.” In
theory, Congress is thus a legislative body possessing only limited powers—those granted to it by the Constitution.
Although the delegates to the Constitutional Convention seriously considered describing the scope of congressional authority in a simple, inclusive
statement of national legislative power, the final version instead followed the format of article IX of the Articles
of Confederation by specifically enumerating the powers granted to the national government. The Constitution, in granting congressional power,
thus simultaneously limits it: an act of Congress is invalid unless it is affirmatively authorized under the Constitution.
State actions, in contrast, are valid as a matter of federal constitutional law unless prohibited, explicitly or implicitly, by the Constitution. The
tenth amendment makes the doctrine of enumerated powers an explicit part of the Constitution: “The powers not delegated to
the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The chief powers of Congress are listed in article I, § 8. This section grants Congress the power, among other things, to levy taxes; to
make expenditures for national defense and the general welfare; to borrow money; to regulate interstate and foreign commerce; to establish national
rules regarding naturalization and bankruptcy; to coin and regulate currency, and punish counterfeiting; to establish post
offices and roads; to grant patents and copyrights; to establish lower federal courts; to declare war, support armies and a navy, establish
military law, and provide for a national militia; and to govern the District of Columbia and all federal enclaves and establishments. [3rd
reprint, 1981, pp. 224-25]
The New American Magazine sums up the Enumerated Powers concept:
The very first sentence of the first Article of the Constitution states, “All legislative powers herein granted shall be vested in a Congress of the United
States” — making that body the most powerful of the three branches of government. Neither the Presidency nor the Judiciary can make laws — except by
usurpations tolerated by Congress. Congress could, for example, prohibit the federal judiciary from issuing usurping rulings in such cases as the infamous Roe
v. Wade (abortion) decision simply by exercising its enumerated power to limit the jurisdiction of the federal courts (see Article
III, Section 2). Also, Congress could employ its impeachment power in order to tame a corrupt and imperial President.
 It
is the tradition of Congress, for each member, upon the start of their terms of office, to take an oath, promising
to protect and uphold the Constitution. Yet virtually every day that Congress is in session these same oath-takers become law-breakers --
passing laws and expending funds on items that are not Constitutionally permissible. Representative John Shadegg (R-AZ) has re-introduced
The Enumerated Powers Act (EPA) - HR 450. Tell your Congressman to cite the specific
clause(s) of the U.S. Constitution that grant them the power to enact laws and take other congressional actions. |
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The New American listed all of the enumerated powers and duties of Congress. That list, which should be at the fingertips of every congressman, follows.
- Levy taxes.
- Borrow money on the credit of the United States.
- Spend.
- Pay the federal debts.
- Conduct tribunals inferior to the Supreme Court.
- Declare war.
- Raise armies, a navy, and provide for the common defense.
- Introduce constitutional amendments and choose the mode of ratification.
- Call a convention on the application of two-thirds of the states.
- Regulate interstate and foreign commerce.
- Coin money.
- Regulate (standardize) the value of currency.
- Regulate patents and copyrights.
- Establish federal courts lower than the Supreme Court.
- Limit the appellate jurisdiction of the federal courts, including the Supreme Court.
- Standardize weights and measures.
- Establish uniform times for elections.
- Control the postal system.
- Establish laws governing citizenship.
- Make its own rules and discipline its own members.
- Provide for the punishment of counterfeiting, piracy, treason, and other federal crimes.
- Exercise exclusive jurisdiction over the District of Columbia.
- Establish bankruptcy laws.
- Override presidential vetoes.
- Oversee all federal property and possessions.
- Fill a vacancy in the Presidency in cases of death or inability.
- Receive electoral votes for the Presidency.
- Keep and publish a journal of its proceedings.
- Conduct a census every ten years
- Approve treaties, Cabinet-level appointments, and appointments to the Supreme Court (Senate only).
- Impeach (House only) and try (Senate only) federal officers.
- Initiate all bills for raising revenue (House only).
The federal government was not given power over Education, Healthcare, Charity,
Employment Practices, or Alcohol, Tobacco and Firearms. TNA adds,
These are the powers of Congress; there are no non-enumerated powers. Leaving nothing to inference, the Constitution even specifies that Congress may pass the
laws “necessary and proper” for executing its specified powers. Congressmen have simply to study and apply the Constitution in order to restore sound
government. That most fail to do so is not the fault of the Founders, but of the people who elect the congressmen and send them to Washington.
The issue of Alcohol illustrates the concept of "Enumerated Powers."
A hundred years ago, legislators had more respect for the
oath they took to "support the Constitution" than they do today. When "teetotalers"
asked Congress to ban alcohol, Congressmen knew that the Federal Government was never given any power in the Constitution over the sale and distribution of alcohol.
That power had not been enumerated in the Constitution, so Congress didn't have that power. Federal "prohibition"
of Alcohol was therefore unconstitutional in 1918 -- until "We the People" amended
the Constitution to give the federal government powers it didn't previously have. Then those powers were found to have disastrous
side effects: high black-market profits, organized crime, and fatally impure bootleg liquor. Americans then re-amended
the Constitution, repealing the earlier amendment, to take away from the federal government the power to ban alcohol. That means the federal government no
longer has any power over alcohol, and certainly not over other drugs, and such laws are unconstitutional,
just as they were in 1918, back when the Constitution was more respected.
John C. Eastman writes in “A
Fistful of Denial: The Supreme Court Takes a Pass on Commerce Clause Challenges to Environmental Laws,”
The Framers added their own contribution to the science of politics. In what can only be described as a radical break with past practice, they rejected the
idea that the government was sovereign and indivisible. Instead, they contended that the people themselves were the ultimate sovereign; they could delegate all or
part of their sovereign powers to a single government or to multiple governments as, in their view, was ‘‘most likely to effect their Safety and Happiness.’’[1]
As a result, it became and remains one of the most fundamental tenets of our constitutional system of government that the sovereign people delegated to the
national government only certain, enumerated powers, leaving the residuum of power to be exercised by the state governments or by the people themselves.[2]
This division of sovereign powers between the two great levels of government was not simply a constitutional add-on, by way of the Tenth Amendment.[3]
Rather, it is inherent in the doctrine of enumerated powers that is embodied in the Constitution itself. Article I of the Constitution provides, for example, that
‘‘All legislative Powers herein granted shall be vested in a Congress of the United States.’’[4] And the specific
enumeration of powers, found principally in Article I, section 8, was likewise limited.
- [1] The Declaration of Independence
- [2] See, e.g., The Federalist No. 39, where James Madison noted that the jurisdiction of the
federal government ‘‘extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other
objects’’; See also The Federalist No. 45 (James Madison) (‘‘The powers delegated by the proposed Constitution to the federal government are few and
defined. Those which are to remain in the State governments are numerous and indefinite.’’); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421
(1819) (Marshall, C.J.) (‘‘We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended.’’);
Gregory v. Ashcroft, 501 U.S. 452,457 (1991) (‘‘The Constitution created a Federal Government of limited powers.’’).
- [3] See U.S. Const. amend. X (‘‘The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’’).
- [4] U.S. Const. art. I, § 1 (emphasis added); see also U.S. Const. art. I, § 8 (enumerating
powers so granted); McCulloch, 17 U.S. (4 Wheat.) at 405 (‘‘This government is acknowledged by all, to be one of enumerated powers. The principle,
that it can exercise only the powers granted to it, . . . is now universally admitted.’’); United States v. Lopez, 514 U.S. 549, 552 (1995) (‘‘We
start with first principles. The Constitution creates a Federal Government of enumerated powers.’’).
Congressional Constitutional Contempt by Walter E.
Williams
- Read how Thomas Jefferson rejected a proposal using the principle of "enumerated powers":
- Jefferson's Opinion on the Constitutionality of a National Bank, 1791 - The
Avalon Project at Yale Law School
A listener to our "Ozarks Virtual Town Hall" submitted this question:
| I thought the Preamble for the Constitution said the purpose of that document was "to provide for the common weal. . ." How can
that be done without education? Without public safety? Without regulation of industries that would otherwise rob the public and spoil the environment? |
The preamble states:
We the People of the United States, in Order 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, do ordain and establish this Constitution for the United
States of America.
Probably our listener was referring to the highlighted phrase.
What are "the blessings of liberty?" How are they "secured" by the government? The blessings
include automobiles, computers, antibiotics, and thousands of groceries at the local market. How are these blessings "secured" by the government? By
nationalizing the automobile industry, as in the Soviet Union? No, simply by protecting the nation from foreign invasion and eliminating trade barriers between the
several States. What about punishing fraud and crime? Though considered to be a function of government, it was not considered to be a function of the federal
government. Punishing crime remained with the states and local governments.
The question posed during the Constitutional Convention and during the ratification process was "What form of government best secures the Blessings of
Liberty and promotes the general Welfare?" The answer given was not "a huge centralized federal government with unlimited powers," but
rather a limited federal government that has only a few powers enumerated in the constitution, with the rest of government remaining with the states. And
nobody believed that the state governments had the authority to nationalize production of computers, automobiles, and groceries. Government on all levels was
tightly limited, and liberty extended to The People and their businesses.
This is the theory of constitutionally-enumerated powers. Only powers enumerated in the Constitution are
possessed by the federal government.
But doesn't the "promote the general welfare" clause indicate that the federal government has vast, sweeping powers to do whatever is necessary to
"promote the general welfare?"
In testimony before Congress, CATO Institute scholar Jerry
Taylor explained how the architects of the Constitution understood the "general Welfare" phrase:
| In Federalist No. 41, Madison summarizes the relationship of the general preface language including the "welfare" language, to
the subsequent more detailed enumeration of specific powers, as follows.
"Some who have denied the necessity of the power of taxation [to the Federal government] have grounded a very fierce attack against the
Constitution, on the language on which it is defined. It has been urged and echoed that the power to "lay and collect taxes, duties, imposts, and
excises, to pay the debts, and provide for the common defense and general welfare of the United States" amounts to an unlimited commission to
exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress
under which these writers labor for objections, than their stooping to such a misconstruction." (emphasis added)
Thus, Madison, who like Story after him sought to defend federal power, treats with derision the claim of opponents of federal powers the claim that
the "welfare clause" is a general grant of power. Madison continues Federalist No 41 in this language of angry paradox:
"For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the
preceding general power? Nothing is more natural or more common than first to use a general phrase, and then to explain and qualify by an
enumeration of the particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no
other effect than to confound and mislead, is an absurdity ... what would have been thought of that assembly, if, attaching themselves to these
general expressions and disregarding the specifications which limit their import, they had exercised an unlimited power of providing for the
general welfare?" (emphasis added)
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More information on the "general Welfare" clause can be found on our Constitution page, and this
page.
Our listener mentions three functions which are necessary to secure "the Blessings of Liberty":
The first question to be asked is, must education etc. be provided by the government, or can it be provided by the Free Market:
voluntary associations, businesses, and "We the People" networking together to assure that children are educated. In other words, which political theory
is true: capitalism or socialism?
If socialism is true, we might still ask, should state and local governments decide how children will be educated, or should that be done by the federal
government? In other words if only government can provide these elements of an orderly and prosperous society, which level of government?
The Constitutional answer precludes the federal government from involving itself in these areas. It would not have been ratified by states jealous to protect
their own powers, or The People jealous to protect their liberties, if it gave to the federal government such sweeping powers.
Things Have Changed
Here (on the left) is Hamilton's discussion of "states' rights" from Federalist
Paper 17. He is attempting to justify the Constitution by showing how the new federal government will not assume state authority. He was very much mistaken:
| The superiority of influence in favor of the particular governments would result partly from the diffusive
construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed. |
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| It is a known fact in human nature, that its affections are
commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his
neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local
governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter. |
Americans today seem to set their affections on distant celebrities, sports heroes, and government officials.
More Americans are attached to Barack Obama, Paris Hilton, and Tiger Woods than they are to their local sheriff.
Has "human nature" changed?
No, Hamilton is talking about human beings in a Christian nation. Mothers in a Christian nation are more attached to family than to Britney Spears. Not
so in a secular nation. Regenerated
human nature is different from atheistic human nature.
Attachment to Bill Clinton is certainly not due to "a much better administration" vis-à-vis the states. In a secular nation, the goal
of "better administration" of government which Hamilton had does not exist. |
| This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation. |
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| The variety of more minute interests, which will necessarily fall under the superintendence of the local
administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a
detail too tedious and uninteresting to compensate for the instruction it might afford. |
The assumption here is that of "enumerated powers" -- namely, that the federal government doesn't
have many, and the states have by far the most. |
| There is one transcendant advantage belonging to the province of the State governments, which alone suffices to
place the matter in a clear and satisfactory light,--I mean the ordinary administration of criminal and civil justice. This, of all others, is the most
powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life
and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns
to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the
people, affection, esteem, and reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels
of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to
render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union. |
This is a fascinating paragraph.
Nobody today has this kind of respect for law enforcement. And law enforcement does not have the kind of paternalistic educational function it once had.
("paternalistic" used in a complimentary, rather than derogatory, way)
The sources of this disrespect are two: the rebellion against authority in the 1960's, and widespread police corruption that has been increasing since
then.
But there is also growing impersonalism that accompanies a flight from personal responsibility and a desire for the State to be our savior. |
| The operations of the national government, on the other hand, falling less immediately under the observation of
the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating to more general interests,
they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active
sentiment of attachment. |
Robert Nisbet, remarked in an autobiographical passage in one
of his books that when he was born, in 1913, the only contact that most Americans had with the Federal Government was the Post Office. In
1750, that was most Americans' only contact with the British government, a fact well understood by Benjamin Franklin, the nation's deputy postmaster
general in 1752. He used this office to establish an inter-colonial network of personal contacts.
Americans today spend more time in front of the TV or Internet than they do at the local donut shop,
so they have less contact with local law enforcement. The Liberal Media lionizes the federal government, and this is what most people see. |
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