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

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 launch of our “publications” section.  Here, we’ll feature research papers and more from renowned Constitutional scholars.  This first offering, “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty and “Expressly” Delegated Power,” by Kurt T. Lash, is one of the finest examples of Tenth Amendment scholarship available.

It was published in 2008 in the Notre Dame Law Review, which allows individuals and non-profit institutions to distribute it widely (please see copyright notice on the paper for full details).

Abstract

Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland.

According to Marshall, the fact that the Framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers.

As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for strict construction of federal power was simply an attempt to insert “expressly” into the text. Today, Marshall’s point regarding the significance of this omitted term is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.

It is also almost certainly wrong.

James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase and numerous other members of the Founding generation regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. According to these Founders, Congress had only expressly delegated power.

Upon investigation, it turns out that this rephrasing of the Tenth Amendment actually reflects the original understanding of the text and its underlying principle. Completely missed by generations of Tenth Amendment scholars, the addition of the phrase “or to the people” to the Tenth Amendment ensured that the Clause would be read as a declaration of popular sovereignty.

According to this theory of government, the sovereign people were presumed to retain all powers not expressly delegated away. Repeatedly stressed by advocates of the Constitution as representing the proper construction of federal power, the principle of “expressly delegated powers” meant that Congress could utilize no other means except those necessarily or clearly incident to its enumerated responsibilities.

Consistently read in combination with the Ninth Amendment’s declaration of the retained rights of the people, the Tenth Amendment was broadly understood to establish a rule of strict construction of federal power - the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.

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Kurt T. Lash is the James P. Bradley Chair of Constitutional Law at Loyola Law School in Los Angeles, CA.  Since joining the Loyola Law School faculty in 1993, Professor Lash has published numerous articles on constitutional law, theory and history.  His work appears in some of the top law reviews in the United States, including Stanford Law Review, Virginia Law Review, Northwestern Law Review, and Texas Law Review.  Most recently, Oxford University Press has published Professor Lash’s book, The Lost History of the Ninth Amendment.  In 2007, Professor Lash served as Chair of the Association of American Law Schools Section on Constitutional Law.

Copyright, Kurt T. Lash, Notre Dame Law Review

by Rob Natelson

How can Congress get around the Tenth Amendment and regulate almost every aspect of American life?

One way is by claiming that the Tenth Amendment doesn’t apply because Congress is merely acting within the scope of its enumerated powers.  But to make this claim, one must assume that some of the enumerated powers are much broader than they really are.

One of the enumerated powers cited by advocates of the modern monster-state is the Commerce Power.  This derives primarily from two sources:

(1) the Constitution’s grant to Congress of authority to “regulate Commerce . . . among the several States” and

(2) the Constitution’s grant to Congress of authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers. . .”

According to promoters of the monster-state, those constitutional phrases go further than allowing Congress to regulate trade among the states.  They also allow Congress to control manufacturing, wages, agriculture, crime, mining, land use, firearm possession, and a range of other activities.

How can they justify this?  Basically, they make two arguments.  The first argument was spun during the New Deal by a University of Chicago law professor.  (Too many law professors spend entirely too much time fabricating constitutional theories to promote big government.)

This professor argued that during the Founding Era the word “commerce” meant more than trade.  Instead, he contended, “commerce” included all gainful economic activities.  Hence Congress has a license to regulate the entire economy.

An even broader version of this theory was published more recently by a Yale law professor.  He maintains that “commerce” means any human interaction – so the federal government can regulate almost anything, so long as it doesn’t trample one of the specific guarantees in the Constitution, such as Free Speech.

On investigation, however, the claim that “commerce” meant “all gainful activities” or “all interactions” turns out to be completely untrue.  It flies in the face of much of what we know about the Founding Era, including specific representations by leading Founders that most regulation would be reserved to the states.

But because it is sometimes necessary to prove the obvious, several other academics (such as Georgetown University’s Randy Barnett and I) have examined literally thousands of appearances of the word “commerce” in the historical records from the Founding Era.  And those records show clearly that “Commerce” in the Constitution means trade and associated activities, but no more (e.g., http://www.umt.edu/law/faculty/natelson/articles/Commerce%20Clause.pdf).

The second argument for an almost unlimited Commerce Power currently prevails on the U.S. Supreme Court.  (Don’t let anyone tell you the present court is “conservative” on such matters.)   This argument acknowledges that when the Founders wrote “Commerce,” they meant only trade and a few allied activities, such as navigation.

But it goes on to say that modern economic life, unlike life during the Founding Era, is highly interdependent, so it is now “necessary and proper” for Congress to regulate everything that substantially affects commerce.

But this argument also ignores history.  Economic interdependence is nothing new: the promoters of the Constitution themselves emphasized it.  But they also assured the public that, interdependent or not, most activities could be regulated only by the states.

They added that the Necessary and Proper Clause added nothing to federal authority, but merely clarified that the legal “doctrine of incidental powers” applied to the Constitution.  And no power could be “incidental” if its scope swamped the principal power.  In other words, Congress couldn’t take over a big field like manufacturing or agriculture on the pretense of regulating commerce.

If the Supreme Court were doing its job in this area, it would restrict Congress to the authority granted by the people through the Constitution.  Because the Court is not doing what it should, it is up to the people to recall the federal government to its constitutional limits.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar.  (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution.

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. Continue Reading

by Ryan Cooper
Springfield News-Leader - March 17, 2009
“From the Right” appears every Tuesday.

“Every school child in America should be required to read the Bible.”

At that point, I stopped clapping for Patrick Buchanan, who was speaking in Kansas City during his failed 2000 presidential bid. The government shouldn’t force people to read books, even the Bible.

There is some truth to the liberal insult that conservatives want to create a Christian theocracy. Social conservatives tend to overemphasize religion when talking about social issues like abortion and gay marriage.

People who support limited government are turned off by the Republican Party because of the religious overtones. They don’t want a government run by preachers. Continue Reading

by Dr. Archie Jones, The American Vision

No fundamental provision of the Constitution or the Bill of Rights is more neglected—or thoroughly violated—today than the Tenth Amendment. It is violated in spirit and in practice. Its violation is advocated implicitly and explicitly: in the teaching of American history and government, in legal theory, in what passes for “Constitutional Law,” and in the functioning of everyday American politics and government.

Our Constitution—as the very words of the Tenth Amendment make clear—was intended to be a delegated powers document. The states which formed and ratified the Constitution were free and independent states—nations—which delegated certain authority and powers to the new central or national government created by the Constitution. They delegated—and manifestly intended to delegate—only those powers stated in the Constitution: and no more. They forbade themselves certain other powers which they also stated in Article I, Section 10 of the Constitution. Continue Reading

by State Rep. Dick Harwood, Idaho-St. Maries

It might seem strange that the Legislature is considering action to declare Idaho’s sovereignty under the 10th Amendment to the U.S. Constitution. State sovereignty should be a given.

Yet, it isn’t. “Change” is the latest buzzword in politics; that’s what President Obama campaigned for when he ran for office and since he took office in January. He wants “change” in the political climate in Washington and “change” in how business is conducted. Continue Reading

On March 5th, 2009, legislators in Mississippi introduced House Concurrent Resolution 69 (HC0069) to “reinforce the fundamental principle and authority of State Sovereignty under the Tenth Amendment to the Constitution…”

Steven Palazzo is the principle author of the resolution along with 29 additional authors - find status updates here.

Here’s the full text of the resolution: Continue Reading

The Tenth Amendment Center’s Michael Boldin recently appeared on the OneRadioNetwork - to talk about the 10th Amendment - its real meaning and the founders intentions, the growing State Sovereignty movement, the Tenth Amendment Center, and the need for limited government. The interview is about 24 minutes, and you can listen by clicking the link below.

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Legislators in South Dakota have introduced House Concurrent Resolution 1013  (h/t R Rivers):

“A CONCURRENT RESOLUTION,  Reasserting sovereignty under the Tenth Amendment to the Constitution of the United States over certain powers and serving notice to the federal government to cease and desist certain mandates.”

Although just introduced, this resolution seems to have quite a bit of legislative support - with nearly 43 Representatives and 17 Senators Signing on. Continue Reading