CONGRESS’ ENUMERATED POWERS
A Primer in Constitutional Law
http://publiushuldah.wordpress.com/
1. The U.S. Constitution is the Document which created our federal government.[1] The federal government thus owes its existence to The People who ratified the Constitution. As our creation, the federal government has no powers other than those We granted to it in The Constitution.
2. The federal government is composed of three branches: Article I created the legislative branch (Congress) & lists its powers; Article II created the executive branch (the Presidency) & lists its powers; and Article III created the judicial branch & lists its powers.
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 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 provide for the common defense and general welfare of the United States, 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.
The Constitution also grants Congress powers to make laws regarding:
(14) An enumeration of the population for purposes of apportionment of Representatives and direct taxes (Art. I, § 2, cl. 3);
(15) Elections of Senators and Representatives (Art. I, §4, cl. 1) and their pay (Art. I, § 6);
(16) After 1808, to prohibit importation of slaves (Art. I, § 9, cl. 1); [2]
(17) A restricted power to suspend Writs of Habeas Corpus (Art. I, §9, cl. 2);
(18) To revise and control imposts or duties on imports or exports which may be laid by States (Art. I, § 10, cl. 2 &3)
(19) A restricted power to declare the punishment of Treason (Art. III, §3, cl. 2);
(20) Implementation of the Full Faith and Credit clause (Art. IV, §1); and,
(21) Procedures for amendments to The Constitution (Art. V).
The original Constitution [3] authorized Congress to exercise throughout the States these and only these powers.
4. Article I, §8, next to last clause, grants to Congress additional powers over small defined geographical areas: the seat of the government of the United States (not to exceed 10 square miles), forts, arsenals, dock-yards, and the like. Over these narrow geographical areas, Congress may “exercise exclusive Legislation”. As James Madison said in The Federalist Papers, No. 43, it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, arsenals, etc.
5. Congress is also granted 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) (Art. IV, §3, cl. 2).
6. These are the only powers granted to Congress by the Constitution!
7. Thus, Congress has NO AUTHORITY to appropriate funds for “bailing out” banks, businesses, and homeowners who can’t pay their mortgages; NO AUTHORITY to pass laws creating data bases controlled by the federal government containing our private medical records; NO AUTHORITY to pass laws denying secret ballots to employees who are solicited for membership by labor unions; NO AUTHORITY to pass laws respecting education, housing, social security, medicare, health care, light bulbs in your home, the flushing capacity of your toilet, airbags, redistribution of the money of the people, 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.
8. You ask, “How can Congress pass 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 the gang in power 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.).
9. But during the era 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 “New Deal” 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 New Deal programs (generally 5 to 4).
10. 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” and the “necessary & proper” clause, permit Congress to do whatever it wants!
11. “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 American Dictionary of the English Language, 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 20th century meanings are substituted for original meanings?
Second, James Madison addressed this precise issue in The Federalist, No. 41 (last 4 Paras): Madison pointed 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 outlined 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!
12. “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 The Federalist No. 22 (4th Para) and in The Federalist No. 42 (11th &12th Paras), Alexander Hamilton & James Madison explained 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 all it does, Folks; and until the mid-1930’s and FDR’s “New Deal”, this was widely understood. See also the concurring opinion of Justice Clarence Thomas, in United States v. Lopez (1995) http://supreme.justia.com/us/514/549/case.html Justice Thomas’ opinion shows why those disposed to usurp attack him so virulently.
13.”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 said 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 agreed with Hamilton’s explanation. (Federalist No. 44, 10th-17th Para). In other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison were clear that no additional substantive powers were granted by this clause.
14. 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”!
15. James Madison said in The 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….
Madison said it again in The 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.”
16. In all its recent & proposed legislation, Congress ratchets up its concerted pattern of lawless usurpations. Such is the very essence of tyranny.
PUBLIUS/HULDAH (Revised July 1, 2009; September 8, 2009)
[1] “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.
[2] James Madison wanted the “barbarism” & “unnatural traffic” of slavery abolished immediately (The Federalist, No 42, 7th & 8th Paras)
[3] Subsequent Amendments to the Constitution set forth additional powers for 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.
2. The federal government is composed of three branches: Article I created the legislative branch (Congress) & lists its powers; Article II created the executive branch (the Presidency) & lists its powers; and Article III created the judicial branch & lists its powers.
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 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 provide for the common defense and general welfare of the United States, 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.
The Constitution also grants Congress powers to make laws regarding:
(14) An enumeration of the population for purposes of apportionment of Representatives and direct taxes (Art. I, § 2, cl. 3);
(15) Elections of Senators and Representatives (Art. I, §4, cl. 1) and their pay (Art. I, § 6);
(16) After 1808, to prohibit importation of slaves (Art. I, § 9, cl. 1); [2]
(17) A restricted power to suspend Writs of Habeas Corpus (Art. I, §9, cl. 2);
(18) To revise and control imposts or duties on imports or exports which may be laid by States (Art. I, § 10, cl. 2 &3)
(19) A restricted power to declare the punishment of Treason (Art. III, §3, cl. 2);
(20) Implementation of the Full Faith and Credit clause (Art. IV, §1); and,
(21) Procedures for amendments to The Constitution (Art. V).
The original Constitution [3] authorized Congress to exercise throughout the States these and only these powers.
4. Article I, §8, next to last clause, grants to Congress additional powers over small defined geographical areas: the seat of the government of the United States (not to exceed 10 square miles), forts, arsenals, dock-yards, and the like. Over these narrow geographical areas, Congress may “exercise exclusive Legislation”. As James Madison said in The Federalist Papers, No. 43, it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, arsenals, etc.
5. Congress is also granted 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) (Art. IV, §3, cl. 2).
6. These are the only powers granted to Congress by the Constitution!
7. Thus, Congress has NO AUTHORITY to appropriate funds for “bailing out” banks, businesses, and homeowners who can’t pay their mortgages; NO AUTHORITY to pass laws creating data bases controlled by the federal government containing our private medical records; NO AUTHORITY to pass laws denying secret ballots to employees who are solicited for membership by labor unions; NO AUTHORITY to pass laws respecting education, housing, social security, medicare, health care, light bulbs in your home, the flushing capacity of your toilet, airbags, redistribution of the money of the people, 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.
8. You ask, “How can Congress pass 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 the gang in power 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.).
9. But during the era 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 “New Deal” 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 New Deal programs (generally 5 to 4).
10. 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” and the “necessary & proper” clause, permit Congress to do whatever it wants!
11. “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 American Dictionary of the English Language, 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 20th century meanings are substituted for original meanings?
Second, James Madison addressed this precise issue in The Federalist, No. 41 (last 4 Paras): Madison pointed 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 outlined 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!
12. “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 The Federalist No. 22 (4th Para) and in The Federalist No. 42 (11th &12th Paras), Alexander Hamilton & James Madison explained 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 all it does, Folks; and until the mid-1930’s and FDR’s “New Deal”, this was widely understood. See also the concurring opinion of Justice Clarence Thomas, in United States v. Lopez (1995) http://supreme.justia.com/us/514/549/case.html Justice Thomas’ opinion shows why those disposed to usurp attack him so virulently.
13.”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 said 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 agreed with Hamilton’s explanation. (Federalist No. 44, 10th-17th Para). In other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison were clear that no additional substantive powers were granted by this clause.
14. 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”!
15. James Madison said in The 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….
Madison said it again in The 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.”
16. In all its recent & proposed legislation, Congress ratchets up its concerted pattern of lawless usurpations. Such is the very essence of tyranny.
PUBLIUS/HULDAH (Revised July 1, 2009; September 8, 2009)
[1] “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.
[2] James Madison wanted the “barbarism” & “unnatural traffic” of slavery abolished immediately (The Federalist, No 42, 7th & 8th Paras)
[3] Subsequent Amendments to the Constitution set forth additional powers for 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.
