Primer in Constitutional law

Congress’ enumerated powers

By —— Bio and Archives--October 17, 2010

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1. With the U.S. Constitution, We The People created the federal government. It is our “creature”, and has no powers other than those We granted to it in The Constitution.

Webster’s American Dictionary of the English Language (1828), says re “constitution”:

...In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.

If you, dear Reader, will study this paper and read the Constitution, you will know more about it than most State & federal judges, most law professors & lawyers, most who spout off on TV & radio, and anybody in Congress (except for Michele Bachmann and perhaps a few others). And you will certainly know more than anyone currently occupying any office in the executive branch of the federal government.

2. The federal government * has three branches: Article I of the Constitution creates the legislative branch (Congress) & lists its powers; Article II creates the executive branch & lists its powers; and Article III creates the judicial branch & lists its powers.

In this paper, we will consider only the enumerated powers of Congress. But the powers of the other two branches are likewise strictly limited and enumerated.

3. Congress is NOT authorized to pass any law on any subject just because a majority in Congress think the law is a good idea! Instead, the areas in which Congress is authorized to act are strictly limited and defined (“enumerated”). Article I, § 8, grants to Congress the powers:

  1. To lay certain taxes;
  2. To pay the debts of the United States;
  3. To declare war and make rules of warfare, to raise and support armies and a navy and to make rules governing the military forces; to call forth the militia for certain purposes, and to make rules governing the militia;
  4. To regulate commerce with foreign Nations, and among the States, and with the Indian Tribes;
  5. To establish uniform Rules of Naturalization;
  6. To establish uniform Laws on Bankruptcies;
  7. To coin money and regulate the value thereof;
  8. To fix the standard of Weights and Measures;
  9. To provide for the punishment of counterfeiting;
  10. To establish post offices and post roads;
  11. To issue patents and copyrights;
  12. To create courts inferior to the supreme court; and
  13. To define and punish piracies and felonies committed on the high seas, and offenses against the Laws of Nations.

  14. Other provisions of the Constitution grant Congress powers to make laws regarding:

  15. An enumeration of the population for purposes of apportionment of Representatives and direct taxes (Art. I, § 2, cl. 3);
  16. Elections of Senators & Representatives (Art. I, §4, cl. 1) and their pay (Art. I, § 6);
  17. After 1808, to prohibit importation of slaves (Art. I, § 9, cl. 1); **
  18. A restricted power to suspend Writs of Habeas Corpus (Art. I, §9, cl. 2);
  19. To revise and control imposts or duties on imports or exports which may be laid by States (Art. I, § 10, cl. 2 &3)
  20. A restricted power to declare the punishment of Treason (Art. III, §3, cl. 2);
  21. Implementation of the Full Faith and Credit clause (Art. IV, §1); and,
  22. Procedures for amendments to The Constitution (Art. V).

The 13th, 14th, 15th, 16th, 19th, 23rd, 24th, & 26th Amendments grant additional powers to Congress respecting civil rights & voting rights, the public debt [lawfully incurred], income tax, successions to vacated offices, dates of assembly, and appointment of representatives from the D.C.

The Constitution authorizes Congress to exercise throughout the States these and only these powers!

4. Two provisions of the Constitution grant to Congress broad legislative powers over specifically defined geographical areas:

a) Article I, §8, next to last clause, grants to Congress “exclusive Legislation” over the following geographically tiny areas: the seat of the government of the United States (not to exceed 10 square miles), forts, arsenals, dock-yards, and the like. As James Madison said in federalist no. 43 at 2., it is necessary for the government of the united states to have “complete authority” at the seat of government, and over forts, magazines, etc. established by the federal government.

b) article iv, §3, cl. 2 grants to congress power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states (as opposed to property belonging to individual states). as these territories became states, congress’ powers under this article were terminated.

5. thus, congress has no authority to bail out financial institutions, businesses, and homeowners who don’t pay their mortgages; no authority to take control of our health care; no authority to pass laws denying secret ballots to employees who are solicited for membership by labor unions; no authority to take away your ira’s and other retirement accounts, no authority to pass laws respecting energy consumption or “emissions”, education, housing, etc., etc., etc.

Therefore, the laws which Congress has passed on such topics are unconstitutional as outside the scope of the legislative powers granted to Congress by The Constitution. We the People did not give such powers to Congress when we ordained & established the Constitution, created the Congress, and listed its 21 enumerated powers. And these powers are not granted to Congress in any of the Amendments.

6. If you look at The List of powers We granted to Congress, you will see that Congress’ legislative powers fall into three categories:

a) International commerce and war;

b) Domestically, the establishment of an uniform commercial system: weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy law, a [limited] power over interstate commerce, and mail delivery. Congress also has the power to establish lower federal courts and make rules for naturalization.

c) Protection of civil and voting rights.

That’s about it! All other powers are retained by the States or the People!

7. You ask, “How can Congress make all these laws if they are unconstitutional? How can what you say be true?”

Congress gets away with it because We are ignorant of what our Constitution says; and We have been indoctrinated into believing that Congress can do whatever they want!

But consider Prohibition: During 1919 everyone understood that the Constitution did not give Congress authority to simply “pass a law” banning alcoholic beverages! So the Constitution was amended to prohibit alcoholic beverages, and to authorize Congress to make laws to enforce the prohibition (18th Amdt.).

8. But during the regime of Franklin D. Roosevelt (FDR), all three branches of the federal government abandoned the Constitution: FDR proposed “New Deal” programs; Congress passed them. At first, the Supreme Court ruled (generally 5 to 4) that these programs were unconstitutional as outside the legislative powers granted to Congress. But when FDR threatened to “pack the court” by adding judges who would do his bidding, one judge flipped to the liberal side, and the Court started approving FDR’s programs (5 to 4).

9. Since then, law schools don’t teach the Constitution! Instead, they teach decisions of the FDR-dominated Supreme Court which purport to explain why Congress has the power to regulate anything it pleases. The law schools thus produced generations of constitutionally illiterate lawyers and judges who have been wrongly taught that three clauses, the “general welfare” clause, the “interstate commerce” clause and the “necessary & proper” clause, permit Congress to do whatever it wants!

10. “Well”, you ask, “what about ‘the general welfare clause’? Doesn’t that give Congress power to pass any law on any subject as long as it is for the ‘general Welfare of the United States’ “? NO, IT DOES NOT!

First, you must learn what “welfare” meant when the Constitution was ratified: “Welfare” as used in the Preamble & in Art. 1, §8, cl. 1, U.S. Constitution, meant

Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government (Webster’s, 1828).

But The American Heritage Dictionary of the English Language (1969), added a new meaning: “Public relief—on welfare. Dependent on public relief”. Do you see how our Constitution is perverted when new meanings are substituted for original meanings?

Second, James Madison addresses this precise issue in federalist no. 41 (last 4 paras): madison points out that the first paragraph of art. i, §8 employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms.  so, yes! the powers of congress really are restricted to those listed hereinabove.

OUR FOUNDERS UNDERSTOOD that the “general Welfare”, i.e., the enjoyment of peace & prosperity, and the enjoyment of the ordinary blessings of society & civil government, was possible only with a civil government which was strictly limited & restricted in what it was given power to do!

11. “OK”, you say, “but what about ‘the commerce clause’ (Art. I, §8, cl. 3)?  Doesn’t that give Congress power to pass laws on any subject which ‘affects’ ‘interstate commerce’ “? NO, IT DOES NOT! In federalist no. 22 (4th para) and federalist no. 42 (11th &12th paras), alexander hamilton & james madison explain the purpose of the “interstate commerce” clause: it is to prohibit the states from imposing tolls and tariffs on articles of import and export—merchandize—as they are transported through the states for purposes of buying and selling. that’s what it does, folks; and until the mid-1930’s and fdr’s “new deal”, this was widely understood. ***

12.“well, then”, you say, “doesn’t the ‘necessary & proper’ clause’ (Art. I, §8, last clause) allow Congress to make any laws which the people in Congress think are ‘necessary & proper’?” NO, IT DOES NOT! Alexander Hamilton says the clause merely gives to Congress a right to pass all laws necessary & proper to execute its declared powers ( federalist no. 29, 4th para); a power to do something must be a power to pass all laws necessary & proper for the execution of that power ( federalist no. 33, 4th para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” ( federalist no. 33, 2nd para); and thus the clause is “perfectly harmless”, a tautology or redundancy. ( federalist no. 33, 4th para). james madison agrees with hamilton’s explanation. ( federalist no. 44, 10th-17th paras). in other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison are clear that no additional substantive powers are granted by this clause.

13. The 10th Amendment states:

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.

So! If a power is not delegated by the Constitution to the federal government; and if the States are not prohibited (as by Art. I, § 10) from exercising that power; then that power is retained by the States or by The People. And WE are The People”!

14. Our Framers insisted repeatedly that Congress is restricted to its enumerated powers. James Madison says in federalist no. 45 (9th para):

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….[emphasis added]

In Federalist No. 39(14th para):

...the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects.

and in Federalist No. 14 (8th para):

...the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects…

15. In all its recent legislation, Congress ratchets up its concerted pattern of lawless usurpations. The executive branch and the federal courts approve it. Such is the essence of tyranny. They are “ruling” without our consent, and hence the federal government is now illegitimate. PH

* “Federal” refers to the form of government: An alliance of States with close cultural & economic ties associated in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas.

** Some object that our Constitution endorsed slavery. During the 18th century, slavery was universal. Article I, § 9, clause 1, is our Proclamation to the World that WE would abolish the slave trade! Of course, James Madison wanted the “barbarism” & “unnatural traffic” of the slave trade abolished immediately ( Federalist Paper No. 42, 6th para).

*** See Justice Clarence Thomas’ concurring opinion in united states v. lopez (1995). justice thomas’ opinion shows why those disposed to usurp attack him so virulently.


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Publius Huldah -- Bio and Archives | Comments

Publius Huldah is a retired lawyer who lives in Tennessee USA.  She writes on the U.S. Constitution. Before getting a law degree, she got a degree in philosophy where she specialized in political philosophy and epistemology (theories of knowledge).

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