The Roots of Enumerated Powers

The first piece of my research on the Bill of Rights will be coming out in Notre Dame Law Review later this year or early next year. I want to make an observation that is not in that paper but will be in my book.

We treat the principle that Congress is limited by the enumeration of its powers in Article One as a constitutional axiom, even though those powers are now read very broadly. It seems clear to me, though, that this idea first emerged in response to the Anti-Federalist attack on the Constitution for lacking a bill of rights. In other words, prior to the Constitutional Convention there was almost no discussion of using enumeration as a tool to limit federal authority.  Moreover, there was almost no discussion of this during the Convention itself.  Thus, it’s not clear that the Convention delegates thought that enumeration was a constraint on Congress–they probably thought that bicameralism, a presidential veto, and the way elections would be conducted were the real constraints.  Their tune changed after the proposal was made.

There isn’t any punch line to this–just more of an academic point.

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8 Responses

  1. Sounds like something Crosskey would say!

  2. Gerard Magliocca says:

    Indeed. As Sinatra might say, Crosskey’s got me under his spell.

  3. Brett Bellmore says:

    Well, they listed powers. I suppose you could ask if “expressio unius est exclusio alterius” was a standard principle of law at the time. I believe it was, but I’m open to correction on this point.

    In any event, whether or not it was a constitutional axiom on June 21, 1788, it certainly became one on December 15, 1791.

  4. Paul Gowder says:

    So the 10th amendment actually does work then?

    • Brett Bellmore says:

      It was certainly intended to settle that exact question, should anybody have any doubts.

      Don’t know that I’d go so far as to say that it “works”, though. The 10th is a pretty good demonstration of how fragile parchment barriers are in the face of the lust for power.

      None the less, it seems to me absurd that this should be considered a live question in light of the 10th amendment. Which is directly on point, and was adopted only a few years after the constitution itself.

      • Joe says:

        “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.”

        Don’t see the word “enumerated” or “expressly” there. I see the word “powers.” But, text doesn’t quite matter again, it is “absurd” that we don’t assume something that is reasonable must be what the text compels. There is a “necessary and proper” clause expressly added that is an open-ended power.

        Art. II broadly speaks of executive power. Art. IV broadly speaks of guaranteeing republican government. It was assumed certain powers were for inherently national sovereignty though what ones and how broadly was open to great debate.

        But, then what the 11A means apparently isn’t what it says, so maybe there is a penumbra and emanation (which I’m fine with as a concept) to the 10A too.

        • Brett Bellmore says:

          The very idea that there are delegated powers, and undelegated powers, implies that they are delegated by being mentioned.

          Article 1, section 8, ends thusly: “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.”

          “The foregoing powers”; Do you read that to mean that what preceded was just a few examples of the powers Congress has, which are open ended?

          People who want powerful government are, naturally, going to be hostile to the idea of enumerated powers, and that those powers not delegated were… not delegated! But, yes, the 10th amendment was adopted just precisely to rule out that idea.

  5. Joe says:

    I referenced Art. II in my comment — Congress has power to regulate including under the Necessary and Proper Clause various things related to the other two branches, so the breadth of power there will affect legislative power.

    James Wilson noted:

    “Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States.”

    The “enumerated” powers very well might take you further — basic state matters, including slavery, could very well be strongly regulated by use of the Commerce Power and other things. I’m wary, but the professor clearly studied things more, to say the idea didn’t really come up. Anyways, it is a logical thing & like other things, understanding “may only become apparent over time.”