FD Article #12
By: Bill Carns
The Father of our Constitution, James Madison, made clear the authority of the federal government in Federalist Papers #45:
"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, and the internal order, improvement, and prosperity of the State."
By: Bill Carns
The Father of our Constitution, James Madison, made clear the authority of the federal government in Federalist Papers #45:
"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, and the internal order, improvement, and prosperity of the State."
Throughout the Constitution the powers vested to the federal government are enumerated quite clearly:
With the federal government's powers being "few and defined," how is it that the federal government makes laws on subjects that are not defined by the Constitution? Madison further clarifies:
- 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; but all Duties, Imposts and Excises shall be uniform throughout 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 Piracy and Felonies committed on the high Seas, and Offenses against the Law of Nations;
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and 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 and 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.
With the federal government's powers being "few and defined," how is it that the federal government makes laws on subjects that are not defined by the Constitution? Madison further clarifies:
"The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States..."
In 1819 The Supreme Court agreed. Chief Justice Marshall (McCulloch v. Maryland) ruled: "This government is acknowledged by all, to be one of enumerated powers."
With the federal government today going so far as to regulate State laws and sue States regarding their powers in an effort to force states to conform to the ideals of the federal government, clearly something has gone wrong.
Beginning in 1825 (Wayman v. Southard), Congress unconstitutionally delegated the power to the federal court to establish its own rules of practice. Chief Justice Marshall stated that the rule-making power was a legislative function and that Congress should have formulated the rules itself.
Marshall denied that the delegation was impermissible. Since then Congress has authorized the Supreme Court to prescribe nearly all rules of procedure for the lower federal courts. That power was further written into law in 1940.
This began the delegation of duty hence known as "Filling up the Details" of statutes. This unconstitutional power quickly became popular among government bureaucrats. Because once the Court had the power of making its own rules the administrative branch wanted that same power.
We now have several decades of this unconstitutional power throughout the federal government. Any attempt by the States to regain lost powers would essentially take a sympathetic Supreme Court which would then be forced to give up its own power and place it back into the hands of Congress. Not a likely scenario.
These are precisely the problems the Founders foresaw when writing and deliberating the Constitution and hence deciding on a Republic as the form of federal government. They further defined the powers of the newly formed federal government through the writing of the Federalist Papers.
If only the politicians of today were as patriotic as our Founders perhaps the federal government’s powers would still be “few and defined”
With the federal government today going so far as to regulate State laws and sue States regarding their powers in an effort to force states to conform to the ideals of the federal government, clearly something has gone wrong.
Beginning in 1825 (Wayman v. Southard), Congress unconstitutionally delegated the power to the federal court to establish its own rules of practice. Chief Justice Marshall stated that the rule-making power was a legislative function and that Congress should have formulated the rules itself.
Marshall denied that the delegation was impermissible. Since then Congress has authorized the Supreme Court to prescribe nearly all rules of procedure for the lower federal courts. That power was further written into law in 1940.
This began the delegation of duty hence known as "Filling up the Details" of statutes. This unconstitutional power quickly became popular among government bureaucrats. Because once the Court had the power of making its own rules the administrative branch wanted that same power.
We now have several decades of this unconstitutional power throughout the federal government. Any attempt by the States to regain lost powers would essentially take a sympathetic Supreme Court which would then be forced to give up its own power and place it back into the hands of Congress. Not a likely scenario.
These are precisely the problems the Founders foresaw when writing and deliberating the Constitution and hence deciding on a Republic as the form of federal government. They further defined the powers of the newly formed federal government through the writing of the Federalist Papers.
If only the politicians of today were as patriotic as our Founders perhaps the federal government’s powers would still be “few and defined”
"The powers delegated by the proposed Constitution to the federal government are few and defined."
– James Madison