Enumerated Powers of States
08. Oct, 2009 
12 Comments
Editor’s Note: In an effort to continually expand the Tenth Amendment Center as a forum for education and research, we are pleased to announce the second installment of our “publications” section. This paper, “The Enumerated Powers of States,” by Rob Natelson, is a fantastic resource for understanding the principles of delegated powers.
It was originally published in 2003 in the Nevada Law Journal.
Introduction:
“The most numerous objects of legislation belong to the States. Those of the National Legislature [are] but few.”
–Rufus King, at the Federal Constitutional Convention
In constitutional form, the federal government is one of enumerated powers, and all powers not enumerated are reserved exclusively to the states and the people. The federal government’s enumerated powers have been construed so broadly, however, that the modern student may be pardoned for asking if anything really has been reserved. Even forty years ago, Professor Lindsey Cowen could say “As things now stand, there may not be any powers which are ‘not delegated to the United States by the Constitution,’” and, of course, the federal government has grown a good deal since then. Over the past century, the power to regulate commerce has come to include the power to regulate agriculture, the power to tax has become the power to control inheritances, and the power to spend for the “general Welfare” has enabled the federal government to create programs to inculcate and educate, as well as for many other purposes.
The proffered legal basis for most of this expansion of federal power is the wording of the original Constitution. Subsequent amendment justifies relatively little of it. This fact, in turn, raises the oft-argued question of whether the powers granted the federal government in the original Constitution, especially as modified by the Ninth and Tenth Amendments, really encompass such subjects as agriculture, education, health care, and the like.
The drafters of the Constitution chose to enumerate the powers of the federal government but not, with a few procedural exceptions, the exclusive powers of states. However, that decision should not be understood as implying that exclusive state powers were narrow, but rather that they were vast. As the drafters explained, they had decided not to enumerate the states’ reserved powers for the same reasons they had decided not to include a bill of rights: first, the reserved powers were too extensive to enumerate; second, a discrete list would encourage the pretense that the federal government could act everywhere else.
On the other hand, if we did have an enumeration of exclusive reserved state powers, perhaps it would enable us to understand more precisely the scope of the granted powers. Such an enumeration also could shed light on basic principles of American federalism. For example, an enumeration might help us determine whether it is constitutionally true, as is sometimes claimed, that growing national economic interdependence justifies more expansive interpretation of federal powers. Put another way, an enumeration could help us determine whether the presence of externalities – spill-over effects – from one state to another creates a constitutionally defensible reason for further central control.
In point of fact, leading federalists left in the historical record some rather specific enumerations of the reserved powers of states. They offered these lists as part of the basis of the political bargain by which the Constitution was ratified. As such, these lists help us divine the actual meaning of such phrases as “general Welfare” and “Commerce . . . among the several States.”
Surprisingly, there has been almost no attention in the legal literature to the federalists’ enumeration of state powers for the benefit of the ratifying public. In this Article, I distill the essence of these enumerations for the modern reader. After doing so, I conclude that the listed items strongly suggest that a guiding principle of American federalism is a Coasean one: externalities and/or interdependence, without more, generally do not serve as constitutional justifications for further centralization.
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Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, Remedies, and a seminar on the First Amendment. He is a recognized national expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitution’s meaning. He has written for some of the nation’s most prestigious academic journals and publishers. Moreover, his work is frequently cited in top journals, such as Harvard Law Review, Yale Law Journal, Michigan Law Review, and Georgetown Law Journal. He also edits the web page, The Scholarship of the Original Understanding of the Constitution, and collected and edited the material that forms the Documentary History of the Ratification of the Montana Constitution.
Copyright, Robert Natelson, Nevada Law Journal
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This appears to be a well-researched paper quoting intent of both federalists and anti-federalists however, I see this as a diversion away from the Constitution as it is written. When one adds comment, other than those that came from the convention notes, it becomes editorializing. What people thought something did mean or should mean can be light years from what is clearly written. It seems that the Constitution is crystal clear on the powers of the states. I usually see from those who have studied the Constitution a constant lack in acknowledging the most important preamble—that is the preamble to the First Ten Amendments. (I cannot call it a Bill of Rights as I see these as a Bill of Protections form government.) It reads: “THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution” “Declarative and restrictive” clauses serve to limit anything in the body of the Constitution. Any power vested in the federal government that may conflict with these amendments is thereby invalidated by them. Most colonies were clear in their conditional ratifications that contained some if not all (and some more) than these amendments. Without them, there would have been no total ratification at all. I would like to see a discussion of the various ratifications to give a more clear picture of what the people of the states were willing to accept!
just the idea that all other powers are restricted from use by the federal government and given to the States and/or the People. would seem to make a reasonable person come to the conclusion that the Constitution is meant to limit or restrict (if not completely bar in some areas) the federal government’s power over the States or the People.
even the use of it’s enumerated powers has the measurable restraints of “general welfare” which would seem to be positive for both States and People and “regulate” which is to make regular which is also positive for both the States and the People.
so it would seem, to a reasonable person that the purpose of the federal government having any power at all is to do good to both the States and the People.
to me an admittedly unreasonable person (at times) it is time for us all to start flying our flags upside down as our Republic is in distress. as unreasonable as that sounds.
May God bless this Republic.
By what right does the Homeland Security Dept. tell states how to, or in Sheriff Arpaio’s case, NOT to handle illegal immigration in their own state? This is a clear violation of the 10th amendment, IMHO.
Haven’t you heard, Dagney, that federal law always trumps state law whenever there’s a conflict between them, which determination (the determination that there exists a conflict) is the sole and exclusive province of the federal government? Have you not heard that all that is necessary for the central government to establish exclusive authority on a given issue is for it to ‘occupy the field,’ and ‘intend a complete ouster’; that, therefore, if any state in this ‘union’ should care to retain any authority whatsoever within its own sphere of operation, it had better not, in any way, shape or form, challenge the ultimate and final authority of the central government? In short, don’t you know that by the good graces of the all-powerful central authority alone does it allow states and local communities to govern themselves according to what to them seems most likely to effect their safety and happiness? You didn’t get the memo on that? Good thing I’m here to serve notice then.
Terry, you crack me up sir =]
Excellent quip!
Glad to be of service to you, sir. I’m simply trying to get the message out that the all-powerful central government is, well, all-powerful … by its own estimation. There remain a few (fringe) enclaves out there that resist this notion, even strongly resisit it, but in any event we have to come to terms with, well, what we have to come to terms with, which is to say that the constitution is a dead letter. That people like me and you and Michael, and all the like-minded others who exist, is no indication that God and self-government and self-determination, and all the rest, is not already dead in America. Did I say “America?” I meant to say the world. Yeah; that’s what I meant to say — God and self-government and self-determination, etc., is dead to the world. It’s high time that America got on board! I love Hussein Obama and the communist Congress — for what legitimate reason could I possibly oppose them???
There appears to be growing belief that we are actually trying to deal with a shadow government, not a legitimate U.S. government and that is why we are all so frustrated and unsuccessful. I recently came across this article from The Constitutional Society in Texas. You might give it a read and think about the issues of lawlessness and non-responsiveness from our government once again.
http://www.scribd.com/doc/20917411/Constitutional-Society-The-Shadow-Government
If the article is to be believed, then it would seem that we must try to uncover and expose the shadow government, because exposure destroys its effectiveness.
Simple to say, maybe difficult to do.