“Laws are made for men of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure.”
– Thomas Jefferson, Letter to William Johnson, June 12, 1823
There is much confusion over the Constitution and its meaning. Many declare that something is ‘unconstitutional’ without actually understanding what this means. Despite what some believe, the conditions under which something is “Constitutional” or “Unconstitutional” have nothing to do with if you happen to agree with the bill or action in question. It has everything to do with the enumerated powers within the US Constitution.
Over time, the Federal government has expanded its powers under several clauses where their meanings are changed simply by interpretation. By interpreting the Constitution in a particular way, US Supreme Court has created powers that are not authorized by the enumerated powers. In order to combat this arbitrary expansion of power, it is necessary to be able to identify what the Federal government is specifically authorized to do, but first, one must understand what the US Constitution was intended to be.
What is the US Constitution?
The Constitution is a voluntary compact which was created by the original 13 colonies. This voluntary compact created an agent of the States (Federal Government), which was designed to protect their mutual interest from violence, both domestic and foreign, as well as create a free trade zone among the several states. It defines the limited powers of the Federal government and establishes a few restrictions to state power as well.
How does the US Constitution work?
The Constitution establishes the structure and powers of the Federal government. The structure includes the division of power within the Federal government, which includes separating power into 3 main branches, the Legislative, Executive and Judicial branches. The Legislature is further broken up into two separate chambers, the House of Representatives and the Senate. The House was to originally be the voice of the People and the Senate was designed to be the voice of the States. Each of the 3 main branches were enumerated with specific powers. The powers of each branch are outlined in their respective Articles (Article 1, Legislative; Article 2, Executive; Article 3, Judicial). The remaining articles primarily deal with procedural and structural issues.
What can the Federal government do?
The powers of the Federal government are broken up into two groups, enumerated and implied. Enumerated powers are those specifically listed, implied powers are those which are necessary to carry out the enumerated powers of the Federal government. For example, the Federal government does not have an enumerated power to buy concrete, but in order to carry out its enumerated power to build military installations including “forts, magazines, arsenals, dock-yards and other ‘needful buildings’”, proper building materials such as concrete are needed.
According to the tenth amendment, all powers not delegated to the Federal government and not prohibited to the States, are reserved to the States and the People respectively.
This simply means that if the Constitution doesn’t give the Federal government the power to do something, it cannot legally do it and these powers are then deferred to the States and People respectively.
What are the powers of the Federal Government?
There are specific powers granted to each individual branch of the Federal government, but the primary powers are those outlined in Article 1, Section 8, which are given to the legislature. The other branches are granted primarily with procedural powers, which determine how the laws of the land are to be carried out, however, the legislature is truly from where nearly all Federal action is intended to derive as it is the branch which is granted the authority to write laws.
Article 1, Section 8:
- lay and collect taxes (sections 2 and 8 )
- borrow money on the credit of the United States (Debate to strike “emit Bills of Credit”)
- regulate commerce: interstate, foreign and among Indian tribes
- establish uniform rules of naturalization (immigration) and bankruptcy
- coin money, regulate the value thereof
- punish for counterfeit of official US currency
- est. post office and post roads
- est. rules for rights to patents/copyrights
- constitute tribunals
- punish piracies and felonies of the high seas
- declare war, grant letters of marque and reprisal
- raise and support armies, appropriations of money no longer than 2 years
- provide and maintain navy
- make rules to govern land and naval forces
- call forth state militia to execute laws of union, suppress insurrections and repel invasions
- organize, arm, discipline the state militia (modern national guard…sort of)
- establish DC not to exceed 10 sq. miles, likewise be authority over all places purchased with consent of state legislature for forts, magazines, arsenals, dock-yards and other ‘needful buildings’
- make all laws necessary for carrying out these powers
What powers are prohibited to the States?
Article 1, Section 10 – Powers prohibited of States
No State shall:
* enter into any Treaty, Alliance, or Confederation;
* grant Letters of Marque and Reprisal;
* coin Money;
* emit Bills of Credit;
* make any Thing but gold and silver Coin a Tender in Payment of Debts;
* pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress:
* lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.
* lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
So what is the confusion?
The confusion lies with several clauses which are written in the Constitution, these primarily include: General Welfare Clause, Elastic Clause (Necessary and Proper) , Supremacy Clause and Commerce Clause. The first three clauses are not very difficult to understand, but the commerce clause is perhaps the source of most of the confusion over Federal power. However, we will start with examining the General Welfare Clause.
General Welfare Clause:
Article 1, Section 8
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”
This is sometimes loosely referenced in support for the regulation of trade and even Federal entitlements or safety nets (Social Security, Medicare, Medicaid, Welfare, Unemployment, etc.), but the clause starts with the phrase “The Congress shall have Power To lay and collect Taxes…” This clause is a direct reference to taxation, not legislative action that follows. The legislative powers are defined in the rest of Article 1, Section 8 as shown above. This is not a broad, but limited authority when considering the enumerated powers in Article 1, section 8.
James Madison made the following statement when referencing the possible expansive interpretation of the General Welfare Clause:
“With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
– James Madison, Letter to James Robertson April 20, 1831
Elastic Clause (Necessary and Proper Clause):
Article 1, Section 8
“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.”
This clause references the ‘implied’ powers of the Legislature, but where this has been used to expand the power of the Federal government far beyond what it was intended, a simple reading of the clause reveals this is not its purpose. It does say to “make all laws which shall be necessary and proper”, which seems to be very general, but it follows with “for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States”. This means Congress can make laws necessary ONLY to carry out the specifically enumerated powers. However, it does not give it unlimited authority in the creation of laws.
Article 6, paragraph 2
“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”
Many use this clause when arguing that all laws written by the US Congress are supreme over any other. This is true, only in so far as when Federal laws are Constitutional. If congress passes an unconstitutional law, in other words, a law that is passed which requires power not enumerated to the Federal government in the Constitution, this is an unlawful law, it is null and void; and neither the States, nor the people are obligated to abide by it.
Thomas Jefferson made the following statement regarding powers assumed by the Federal government (not enumerated by the Constitution):
“Whenever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” –Thomas Jefferson: Kentucky Resolutions, 1798
Article I, Section 8, Clause 3:
“[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”
While the other clauses only require a simple understanding of the Constitution, the Commerce Clause requires a bit of outside knowledge when analyzing its meaning. Original intent of any law is supposed to be considered when deciding its meaning. This point was reiterated by the framers and is sound legal doctrine.
“On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”
– Thomas Jefferson to William Johnson, 1823
Some will make the claim that modern times create for a new host of problems that could not have been foreseen by the framers and therefore, the original meaning does not hold weight.
If in fact the reality of the present creates a necessity to change the Constitution and the powers of the Federal government, this can be done via the amendment process (Article V).
However, if the Constitution was and is to be a strict limitation against Federal power, changing it simply by interpretation can make it mean anything or nothing at all, thereby defeating its specific purpose. In other words, if it can simply mean whatever you want it to by interpretation, it does not limit power to any meaningful degree, thereby defeating one of its primary purposes.
Considering the original intent of the Commerce Clause, we can look to James Madison, who is considered the ‘father of the US Constitution’:
“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”
– James Madison, Letter to Cabell, February 13, 1829
James Madison made it clear that the commerce clause was to protect against economic protectionism by the several states. It was to promote a ‘free trade’ zone within the United States where individual States could not protect their own industry over that of another State. It was not written to give unhindered authority to regulate industry. Furthermore, it should be noted that this was also ONLY the power to regulate ‘interstate’ commerce (state to state), not intrastate commerce (all commerce within state lines). ‘Intrastate’ commerce would pertain to a good or service that is derived within a given state and the sale or transfer of this product or service remains within the borders of the originating state. Even under expansive interpretations of ‘regulate’ and even ‘commerce’. The Federal government has ZERO authority to interfere with trade that only occurs within the borders of a given state.
Is the Federal government acting within the limits of the US Constitution?
Now that you understand the basics of the US Constitution, you may recognize that the Federal government is acting well beyond its Constitutionally limited role. The question then remains, “What can we do about it?”
“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.”
– Thomas Jefferson: Kentucky Resolutions, 1798
Our State governments have the power and duty to stand up to the Federal government when it acts outside of its Constitutionally limited role. Our individual States were to be a barrier against Federal tyranny:
“The true barriers of our liberty are our State governments; and the wisest conservative power ever contrived by man, is that of which our Revolution and present government found us possessed.”
– Thomas Jefferson to A. L. C. Destutt de Tracy, 1811
For more information on Nullification see our videos on nullification.
For further clarification of the General Welfare Clause and the case made against unlimited Federal authority, consider this quote by James Madison:
“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, Letter to Edmund Pendleton, January 21, 1792