The Enumerated Powers of States
12. Apr, 2009 
23 Comments
by Rob Natelson
Our Constitution created a federal government with only enumerated powers. All powers not listed were reserved to the states and people.
That is commonly known. What is not commonly known is that during the debate over adoption of the Constitution, the Constitution’s advocates also enumerated powers the federal government absolutely would not have.
When the Constitution was being debated, the opponents’ most important objection was that the new federal government might have too much power. The Bill of Rights - including the Tenth Amendment - was adopted to quiet such fears.
In addition, however, the Constitution’s proponents publicly told the American people what subjects would be within the states’ exclusive jurisdiction - and outside the federal government’s control. They did this in a variety of speeches, newspaper articles, letters, and pamphlets.
Who were these “enumerators?” Most were citizens of very high standing.
They included, among others: Alexander Hamilton, James Wilson (a convention delegate and chief proponent in Pennsylvania), Edmund Pendleton (chancellor of Virginia and chairman of his state’s ratifying convention), James Iredell (North Carolina judge, pro-Constitution floor leader at his state’s ratifying convention and later U.S. Supreme Court Justice), John Marshall (a ratifier and later U.S. Chief Justice); Maryland Congressman Alexander Contee Hanson, Nathaniel Peaslee Sargeant (a Justice of the Massachusetts Supreme Judicial Court), Alexander White (Virginia lawyer, ratifier, and later U.S. Senator), prominent businessman Tench Coxe, and – of course – James Madison.
Here are some of the powers they solemnly promised would be outside the federal sphere:
- governance of religion
- training the militia and appointing militia officers
- control over local government
- most crimes
- state justice systems
- family affairs
- real property titles and conveyances
- wills and inheritance
- the promotion of useful arts in ways other than granting patents and copyrights
- control of personal property outside of commerce
- governance of the law of torts and contracts, except in suits between citizens of different states
- education
- services for the poor and unfortunate
- licensing of taverns
- roads other than post roads
- ferries and bridges
- regulation of fisheries, farms, and other business enterprises.
For an article on the subject, see The Enumerated Powers of States, available at: http://www.umt.edu/law/faculty/natelson.htm
Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history. He is currently seeking a publisher for his latest book, The Original Constitution.
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“services for the poor and unfortunate” All these little entitlement schemes that should never have existed in the first place need to be relegated to the trash heap.
Good article, thanks.
It is correct that government was not created or delegated a power to manipulate Society, especially with a tax code as used under the Sixteenth Amendment. And government was not delegated a power by the Constitution in the other listed items in the Article – government delegated those powers to itself, unconstitutionally of course.
To me the Tenth (and Ninth) Amendment says the Constitution expresses volumes by omission.
The 1787 Constitution (and those thereafter) clearly state, a fatally overlooked and disregarded, Right and Power the People have to “control” government in Article I, Section 2. No other Right of the People to control government is expressed or implied in the 1787-91 Constitution and Bill of Rights.
If any other Power is expressed or implied as delegated to government by an Amendment to grant a Right to the people or a control of the People then that expression or Amendment in repugnant to the 1787 -91 Constitution, therefore, null and void.
The people, not government, is obligated to “enforce” the Constitution on government, or in other words the people are obligated to tend to the business of enforcing the Constitution. The People are not obligated to enforce the Constitution or Amendments on themselves.
I suggest perusing: http://www.kickthemallout.com/
Allan
These were good States Rights intentions, subsequently overturned and replaced with a cradle-to-grave paternalistic and huge federal government. If you wonder why, there is an answer: We, the People. After a career in public service it became apparent during those years that there is no service so menial, no desire so trivial, that a government agency at some level can’t be called on to fill it. We, the very people who should be seeking a libertarian independence from that inside-the-beltway mentality, are the ones who have called on our federal keepers time upon time to answer our needs, fanned by the hysterical media who seem to have plenty of cameras for the White House and the Capital but none available for the State House.
The Federal gov. will not give up one inch of the powers they have assumed so how are the people to get back their independance? I say it must begin with local and state elections. We must elect a new gentre of politican. One that will put states rights first in all things. We must also let our senators know that they are elected here at home and not in washington.
when given a choice, most people choose libertarian answers. The only problem is most people do not know what the libertarian party is. More and more people are wanting what the libertarian party has been offering since it started. That is mainly small limited government as our country was originally intended. The Old parties can not do it. good luck everyone.
Bottom Line: There are just a few remedies to a gov’t. gone bad. Elections are the preferred and you have to affect all levels to be effective; We can organize protests for individual issues as they arise, but you never get any real results; Revolution is in most hearts but should be a remedy of last resort; States like Texas and a few others have the right to seperate from the United States and revert back to their status before joining the U.S. The economy of Texas would be a GREAT bargaining tool. If Texas were to become its’ own REPUBLIC again, we would be the 12th or 13th largest economy in the world.”Obamanation” would fall flat on his face if we were to pull out. Wake up TEXAS. We,the State have the power, not D.C.
James:
And California is the 5th largest economy- so what? Texas is one of the most corrupt political states in the country. Gerrymandering runs rampant. Political backscratching is so common no one even notices any more.
You’re railing against Obama and yet you fail to notice that the biggest icnreases in Government before Obama were under Reagan and GW Bush. When texas starts electing real libertarians- an actual majority of people like Rob Paul, then you can start talking. Until then remember that Texas voted for Bush and look what it got us- bigger government- two pointless wars- a huge deficit and warrantless spying on our own citizens.
Let’s face it. We have had government that has been headed in the wrong direction for centuries. Unfortunately laziness and a lack of education or concern allowed it to be so. Wake people up and teach them the facts just as this article is attempting to do. Let’s take back the country.
Liz,
You are correct; the salvation of our Constitutional Republic depends entirely on the People, primarily the Voters. The People get the government Voters vote for. When voters elect Candidates to do anything other than honor the Constitution’s Oath of Office they allow government to do as it wishes, create an unconstitutional Democracy, for instance.
The People must come together on exactly what they are hiring (electing) Lawmakers to do. The Constitution says Candidates cannot be elected to do anything but honor their Oath; reference the last paragraph of Article VI.
Yes, local yokel Incumbents are required to take that Oath too and those that dishonor it must not be reelected.
The People best get off their a$$ and vote – the People (100%) are allowing Voters (25%) to elect a criminal government to enslave them.
Protesting accomplishes only what government wants to accomplish.
Allan
Let’s call a spade a spade and tell it like it really is! We have COMMUNISTS that have “gradually” infiltrated our Federal Governments every branch to the point that we now have one as a “president” by fraud! That fraud has taken place because we have Communists within our entire judicial system, all the way up to the U.S. Supreme Court, that ALLOWED it to happen AND continues to protect it! The MAJORITY of the American people have been kept soundly asleep by the traitorous major media in believing Communism was dead and going as far as putting on the “show news” of Communism falling with the Berlin Wall! The suckers took the bait but many of us didn’t! It’s now time for shock therapy, Google:CONGRESSIONAL RECORD 1963 COMMUNIST GOALS and also TEN PLANKS OF COMMUNIST MANIFESTO and while you’re at it check out COMMUNIST PARTY USA(CPUSA)if you believe Communism is “dead”! “Conspiracies” tend to prove themselves over time to the detriment of the naive majority! Remember, a Communist by any other name (Ultra-Liberal)is STILL a Communist!!!
Anticrime,
You are correct. The Tenth Amendment and many others are trying to wake the stupid up. But seems to me rants about what is going on is a waste of time and actually a detriment to a solution. Do you have a solution to the Communist take over?
Allan
Allan, We need to focus on rooting out and bringing to justice the corrupt judges hiding in black robes and prosecuting them to the fullest extent of the law! Not the first time judges have gone to jail in this country! Once we get the treasonous traitors out of the courts and replace them with God-fearing Constitutional judges THEN we can go after the big fish like Obama and prosecute them for fraud and treason! It’s always best to start from the bottom up instead of the top down! As long as Obama and his Communist cronies are being protected by the corrupt judges in our courts he will remain right where he is and will continue to destroy America from within as Communists have always vowed to do! The information I have given you in my last post is DAMNING to their agenda as people can clearly see that most of their goals have come to fruition! It is imperative to make hard-copies of both the 1963 Congressional Record AND the Ten Planks of the Communist Manifesto and distribute it throughout the land! These two simple items will open the sleepiest eyes,as it will answer questions that Americans have been pondering on for years without legitimate answers by major media!
As much as the patriots of this land would love to shout to the roof tops to let everyone in America know how the Federal Gov. has encroached upon states rights, I believe we have to proceed slowly unless we feed them too much at once and they choke on it and reject it. I encourage each poster to consider this as we try to get the message out. Post on every political blog you can find to lead people to this site and let them digest it a little at a time. After all our rights were not taken away overnight and we will not regain them overnight. This will be a long hard fought process that will come about only after enough voters support the idea of “We the people” and reject the total governance of the Federal Gov.
How did the government ever get away with breaking the 10th amendment in the first place? They’re obviously breaking the law right!? Can’t we start a petition or something to get rid of the laws that violate the constitution, and remove the elected officials who broke their oath to uphold the constitution?
Can’t we start a petition, of course we can petition government and it’s called a Right of Grievance. But we seem to misunderstand a petition or Grievance has no force, government Officials are only obligated to “listen” to protests or Grievances.
Why is it the People (WE) fail to comprehend “our” (individually and collectively) only power of “force” against government Officials is the Hiring (and or firing) using the Ballot Box?
The Employer (Boss of hiring) status of the People is specifically stated in the Constitution in Article I, Section 2.
Allan
BW, The Federal Government didn’t “break” the 10th Amendment! It is still in place as long as our U.S. Constitution is in existence. What has happened is that the Feds have caused the states to become “dependant” upon them for federal funding! Over the years they offered the states large amounts of federal(OUR)money for improvements of infrastucture, schools, law enforcement, etc. The only catch was that the states would HAVE to comply with Federal “guidelines” to continue to receive future funding. State Governors jumped at the chance to obtain copious amounts of “free” federal money to improve their states. But the down-side is that once he made all the improvements he found that his state alone could not create enough revenue to support the improvements thus the Governor allowed his state to become DEPENDANT upon the Federal Government for further funding thus making his state subservient to the Feds! He that holds the mortgage owns the property! Many states have already, formally declared their 10th Amendment Sovereignty and put the Feds on notice. It’s all about WHO is in the drivers seat within each states governmental body that will decide if we will become slaves to a Federal Government with, now evident, Communist goals! We need to root out all those that will not defend their constituents by adhereing to Constitutional Jeffersonian Law and replace them with God fearing red-blooded Americans with the testosterone to stand up to evil and tell them to SHOVE their controlling money! The LOVE of money is the ROOT of most evil!
Allow me a small plug, if you will. Professor Natelson posts regularly at our blog, the Electric City Weblog, available at http://www.electriccityweblog.com. Come and read!
Professor Natelson teaches First Amendment Law – ah he teaches not Constitutional Law, but government’s infringing “legislation”, I bet.
In my opinion it is impossible to write 10,000 words explaining “Congress shall make no law.”
Well, it is probably claimed that “Congress shall make no law” does not apply to the States – baloney, the Oath of Office in the last paragraph of Article VI and Article V says (in a round about way) States must comply with the Constitution. Government, all U.S. governments (Officials take the Oath), are bound by the Constitution and cannot “infringe” on a Right, any Right, of the People.
However, Constitutionally any private Entity (non-government) can forbid access to It’s property and restrict activity there.
It could be though that the education Mills dangle on a federal & State revenue teat and government claims (infringes) they thereby give up their own Rights.
The Tenth Amendment forbids the U.S. government any control of anything not mentioned in writing in the Constitution.
I know not what Others will do but when I am exercising a Duty in Citizenship (ballot & jury boxes) my interpretation of the Constitution reigns supreme over any and all other interpretations.
Allan
HEY california.I happen to support Ron Paul.Seems we have something in
commom.Really, ca.is more broken that d.c.The far left is so far left,they look to their right & see themselves.Irony is, many left leaning entertainers owe millions in taxes and they want those of us who pay our taxes to give to those “less fortunate”. Illegal aliens(not imigrants) have been the largest single cause for your states’failures.There is a lot to fix.States need to regain control of their rights and push D.C. (Pelosi,Reed,Obama ect.)back to whatever slimy rock they crawled from under and stop the “left turn” they have us on.Good luck in your great state. Our TEA PARTIES will get the ball rolling in the peoples favor!!!