Enumerated powers

Enumerated Powers are powers given to the federal government by the terms of the U.S. Constitution. The question whether the Constitution also should be understood to give the federal government unenumerated powers was the central issue in nineteenth century constitutional disputations. Under Article II of the Articles of Confederation, the Confederation Congress's powers were limited to those explicitly granted by that document. This limitation on the federal legislature's powers, when coupled with the extreme difficulty of changing a constitution whose amendment required the unanimous agreement of the thirteen states, stymied several nationalist initiatives in the period before the adoption of the Constitution.

The Philadelphia convention that drafted the U.S. Constitution in 1787 omitted any provision echoing Article II of the Articles of Confederation. However, several sections of the proposed constitution, particularly the list of congressional powers in Article I, section 8, gave the impression that the new federal government was to have only the powers it was expressly delegated. During the course of the ratification debates of 1787–1790, several Federalist spokesmen—most notably Governor Edmund Randolph of Virginia and Charles C. Pinckney of South Carolina—assured this principle would be followed.

When the new federal government was instituted, President George Washington found his cabinet sharply divided on the issue of unenumerated powers. Secretary of the Treasury Alexander Hamilton, who had joined with John Jay and others in offering a highly nationalist interpretation of the Constitution to the New York ratification convention, argued that both the Congress and the president could claim broad powers that, although not explicitly mentioned in the Constitution, naturally inhered in the legislative and executive branches. Secretary of State Thomas Jefferson, on the other hand, insisted on the reading of the constitution successfully offered by Attorney General Randolph in the Virginia ratification convention. Jefferson cited the Tenth Amendment to underscore his argument. A similar debate in the House pitted Federalist Representative Fisher Ames against James Madison.

Washington, whose experience in the Revolution had convinced him of the necessity of Hamilton's program, sided with Hamilton. In the following decade, Chief Justice John Marshall authored a number of Supreme Court opinions endorsing the Hamiltonian-nationalist reading of the Constitution; the most important of these, McCulloch v. Maryland, elicited Madison's observation that the Constitution never would have been ratified if people had seen McCulloch coming.

Madison's last act as president in 1817 was to veto the Bonus Bill, legislation providing for significant federal expenditures on public works. Madison instructed congressional leaders among his fellow Jeffersonians that strict construction must remain their guiding principle and that an amendment authorizing federal expenditures of this type should precede any such expenditure. President Andrew Jackson adhered to this principle, notably in his Bank Bill Veto Message, as did his Democratic successors (most of the time). Yet, while Democratic electoral success demonstrated the popular appeal of the doctrine of enumerated powers, the antebellum period saw the parallel growth of a nationalist reading of the Constitution in the Hamiltonian tradition. The divergence between these two conceptions of the federal relationship, in conjunction with the ultimate identification of each of them with a great sectional political party, formed the constitutional predicate for the Civil War.

With the triumph of the Republican Union in 1865, the doctrine of enumerated powers went into eclipse. It still figured in constitutional argumentation, but the main line of constitutional reasoning came to hold that the federal government had essentially all powers that were not explicitly denied it by the constitution. This conception was precisely that which Hamilton had offered in cabinet debate in the 1790s.

Bibliography

Lenner, Andrew. The Federal Principle in American Politics. Lanham, Md.: Rowman and Littlefield, 2001.

McDonald, Forrest. States' Rights and the Union: Imperium in Imperio, 1776–1876. Lawrence: University Press of Kansas, 2000.

—K. R. Constantine Gutzman

Express powers specifically granted by the Constitution such as the taxing power and the spending power granted to Congress. See inherent powers. Compare implied powers.

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The enumerated powers are a list of specific responsibilities found in Article 1 Section 8 of the United States Constitution, which iterates the authority granted to the United States Congress. Congress may exercise only those powers that are granted to it by the Constitution, limited by the Bill of Rights and the other protections found in the Constitutional text.

The classical statement of a government of enumerated powers is that by Chief Justice Marshall in McCulloch v. Maryland:

This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.

Contents 1 Powers and limitations 1.1 Necessary and Proper Clause 2 Recent case law 3 Enumerated Powers Act 4 References 5 See also 6 External links

Powers and limitations

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On the one hand, strict Constitutionalists believe that Congress's power should be limited to only those duties listed in the Constitution. All other powers should be vested to the people and the state governments. On the other hand, more liberal interpreters of the constitution allow for powers more tangential to those duties. Many individuals cite the Necessary and Proper and the Commerce clause as grounds for their argument. Many conservatives cite the Tenth Amendment as grounds for their arguments. However, over time the overall trend has seen more power shifting to the Congress. This can be noted especially after the Great Depression, when U.S. federal government New Deal programs imposed strict regulations on the economy.

Necessary and Proper Clause

Interpretation of the Necessary and Proper Clause has been controversial especially during the early years of the republic. Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers. Loose constructionists, on the other hand, feel that the Necessary and Proper Clause expands the authority of Congress to all areas tangentially related to one of its enumerated powers. It is often known as the "elastic clause" because of the great amount of leeway in interpretation it allows; depending on the interpretation, it can be "stretched" to expand the powers of Congress, or allowed to "contract," limiting Congress. In practical usage, the elastic clause has been paired with the commerce clause in particular to provide the constitutional basis for a wide variety of expansive federal laws. The powers given to the state are unofficial business.

Recent case law

The case of United States v. Lopez ^[1] held unconstitutional the Gun Free School Zone Act because it exceeded the power of Congress to "regulate commerce... among the several states." Chief Justice William Rehnquist wrote, "We start with first principles. The Constitution creates a Federal Government of enumerated powers." For the first time in sixty years, the Court found a federal statute to have exceeded the commerce power of Congress.

For more details see: The Rehnquist Court and the Commerce Clause

Enumerated Powers Act

The Enumerated Powers Act, ^[2], is a proposed law that would require all bills introduced in the U.S. Congress to include a statement setting forth the specific constitutional authority under which the law is being enacted. In every Congress since the 104th Congress, U.S. Congressman John Shadegg has introduced the Enumerated Powers Act, although it has not been passed into law. At the beginning of the 105th Congress, the House of Representatives incorporated the substantive requirement of the Enumerated Powers Act into the House rules.^{[citation needed]}

References

1. ^ 514 U.S. 549
2. ^ H.R. 2458

See also

• New federalism
• Originalism
• Strict constructionism
• Constitution in exile
• Compact theory

External links

• Constitutional Studies, 10th Amendment, Enumerated powers from the Cato Institute
• Annotations on enumerated powers from FindLaw
• Text of the Enumerated Powers Act
• Committees on Enumerated Powers: How Congress Can Revive the Constitution from the Center for Constitutional Studies

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