The Personal Website of Mark W. Dawson

Limited and Enumerated Powers

The U.S. Constitution specifies the limited and enumerated powers of the Federal Government. It does so to assure that the Federal Government will not encroach on the rights of the states and the people. The Founding Fathers were highly suspicious that a powerful federal government, if it were not limited in its powers, would encroach on our Freedoms, Liberties, Equalities, and Justice for All. In addition to the limited and enumerated powers of the Federal Government, they also passed the first 10 Amendments to the Constitution, The Bill of Rights, to specifically state which human rights could never be abrogated. My article “The Underlying Meaning of the Bill of Rights” examines these enumerate human rights. The Founders also knew that other human rights existed but could not be properly enumerated.  They, therefore, established the 9th and 10th amendments to the United States Constitution to assure that these unenumerated human rights could not be encroached upon by the Federal Government. These Amendments are as follows:

These amendments are one of the most underrated and underutilized amendments to the Constitution, but also one of the most important. The 9^th Amendment assures us that if a right is not enumerated in the Constitution that the right is retained by the people and not that that the right doesn’t exist. This reminds us that rights do not originate in the Constitution, but from the people. The people always retain their rights and delegate responsibility to the Government to protect their rights. The Government may not abrogate a person’s rights, only enforce and protect them. The 10^th Amendment reminds us that any government power not delegated to the Federal Government in the Constitution is a power delegated to the States or to the people. It also recognizes that a State can prohibit the exercise of federal power if the States or People prohibits it. This was enacted to restrict the activities of the Federal Government to only those items enumerated in the Constitution. Our founding fathers were very concerned that the Federal Government would attempt to overreach and insert itself into affairs that it had no authority to do so. They knew it was very important for the protection of liberty and freedom that the Federal Government should be limited to those activities stated in the Constitution. This is true whether it is the Congressional, the Executive, or the Judiciary branches who are exercising power.

If any branch of the Federal Government exceeds the powers enumerated in the Constitution, it is an assault on the liberties and freedoms of the States or the People. Therefore, let us look at the enumerated powers and the “general welfare” clauses: Article I, Sec. 8, clause 1, of the U.S. Constitution that says:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States…”

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

As seen from the above list from the Constitution, there are 18 specifically enumerated powers that are delegated to Congress. If you spend some time and effort to carefully read through the entire Constitution and highlighting the powers delegated to Congress and the Executive, you will find several other delegated powers (depending on how you count) that are mentioned. These other delegated powers are mainly the powers of the Presidency, but some of these other delegated powers are to Congress. Powers not delegated within the Constitution are reserved to the States or to the people. This is what is meant when it is said that ours is a Constitution of enumerated powers. These additional enumerated powers are:

Article III, Section 3 of the United States Constitution:

Article IV, Section 3 of the United States Constitution:

Amendment XVI of the United States Constitution:

Amendment XX, Section 4 of the United States Constitution:

Additionally, a number of amendments include a Congressional power of enforcement in which the language "The Congress shall have power to enforce this article by appropriate legislation" is used with slight variations, granting to Congress the power to enforce the amendments.

Many people interpret the term “general Welfare of the United States” to mean any other welfare of the United States. However, the General Welfare Clause is not for any other welfare, but the general welfare is for the laws that are necessary and proper to institute the enumerated powers. Many also argue that there should be a very broad interpretation of the meaning of the general welfare clause. But to broad an interpretation of the general welfare clause leads to a result best expressed by Lewis Carroll in “Through the Looking Glass”:

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

A broad interpretation of the general welfare clause gives primacy to the government to determine what powers it may or may not have. The question is then whether the federal government is to be the master or the states or the people are to be the master. A broad interpretation of the general welfare clause would make the Federal Government the master. As James Madison (one of the primary drafters of the Constitution) wrote in a letter:

“If Congress can employ money indefinitely to the general welfare,
and are the sole and supreme judges of the general welfare,
they may take the care of religion into their own hands;
they may appoint teachers in every State, county and parish
and pay them out of their public treasury;
they may take into their own hands the education of children,
establishing in like manner schools throughout the Union;
they may assume the provision of the poor;
they may undertake the regulation of all roads other than post-roads;
in short, every thing, from the highest object of state legislation
down to the most minute object of police,
would be thrown under the power of Congress.... Were the power
of Congress to be established in the latitude contended for,
it would subvert the very foundations, and transmute the very nature
of the limited Government established by the people of America.”
- James Madison

If the federal government wishes to do something outside of the enumerated powers in the Constitution, it must first obtain permission from the States or the people to do so. It must do so by proposing a Constitutional amendment to obtain powers that are not enumerated in the Constitution. In some cases of the ambiguity of powers enumerated in the Constitution, it must request permission from the State or the people of the State to act. This is done through a clause in the federal law that, with the agreement of the State or the People within the State, through the normal legislative process of the State, the Federal Government may take action in the State. By doing this, the States agree to permit the Federal Government to take a specific action within their State, not specifically enumerated by the Constitution. Many would argue that this process would be inefficient and time-consuming. However, our Constitution was not established to make Government efficient or speedy, but it was established to preserve and protect the liberties and freedoms of the people.

These checks and balances of the Constitution have often prevented the encroachment of federal power upon the rights of the states and the people throughout our history. However, if all three branches of the Federal Government cooperate in the extension of federal power into the States or to the people’s rights, it is very difficult to prohibit or curtail these actions. One of the reasons for an independent judiciary was to review these issues and concerns and were necessary negate a Federal action that was outside the bounds of the Constitution. However, if the judiciary acts outside the scope of its duties and responsibilities to the Constitution then it is assisting in the encroachment of Federal powers upon the States or people’s rights. Unfortunately, the history of the Judiciary in the last half-century has been one of judges trying to legislate through judicial activism. Under many guises, the latest being social justice, judges have issued rulings that go beyond the scope of their responsibilities. However, the States and the people must resist the encroachment of the Federal Government on their rights. To do otherwise is cede our liberties and freedoms to the federal government.

Unfortunately, the history of the 20th and 21st century has been of encroachments on our Freedoms, Liberties, Equalities, and Justice for All by the Federal Government, and it has been accomplished by the cooperation of all three branches of the Federal Government and the acquiescence of the State governments. Many of these encroachments were done for good social policy reasons, but they were encroachments. Rather than amend the Constitution, or work within the Constitution, they utilized torturous and convoluted legal reasoning to justify their actions. We may have obtained some social good, but the result, however, has been the reductions of our "Freedoms, Liberties, Equalities, and Equal Justice for All". The question then is, as has been said in the Bible in Matthew 16:26:

“What will it profit a man if he gains the whole world, yet forfeits his soul?
Or what can a man give in exchange for his soul?”

If we continue to cede our liberties and freedoms to the Government, then we are selling our souls for temporary benefits. Or, as Benjamin Franklin once said:

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
- Benjamin Franklin