Constitutional doctrine of limiting the Federal Government to explicitly granted powers
The Enumerated powers (also called Expressed powers, Explicit powers or Delegated powers) of the United States Congress are listed in Article I, Section 8 of the United States Constitution. In summary, Congress may exercise the powers that the Constitution grants it, subject to the individual rights listed in the Bill of Rights. Moreover, the Constitution expresses various other limitations on Congress, such as the one expressed by the Tenth Amendment: "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." Historically, Congress and the Supreme Court have broadly interpreted the enumerated powers, especially by deriving many implied powers from them. The enumerated powers listed in Article One include both exclusive federal powers, as well as concurrent powers that are shared with the states, and all of those powers are to be contrasted with reserved powers that only the states possess.
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Articles
The Bill of Rights: Freedom of Speech, by Jacob G. Hornberger, Freedom Daily, Jul 2004
Part of a series examining the Bill of Rights, this covers the freedom of speech clause as a barrier to censorship by government (and not by private entities)
Part of a series examining the Bill of Rights, this covers the freedom of speech clause as a barrier to censorship by government (and not by private entities)
When the Constitution was being proposed ... many people expressed the concern that [it] failed to specify the ... rights ... that would be immune from assault ... The response ... was that since the Constitution expressly restricted the government to specified, enumerated powers, and since those powers did not include the power to trample on the fundamental rights of the people, it was unnecessary to ... prohibit infringements of those ... rights. Moreover, the enumeration of certain rights, the responders argued, could be construed as implicitly empowering the government to trample on rights that were not enumerated.
Related Topics: United States Bill of Rights, Democracy, Government, Private Property, Rights, Freedom of Speech
The Bill of Rights: Reserved Powers, by Jacob G. Hornberger, Freedom Daily, May 2005
Discusses the Tenth Amendment to the U.S. Constitution, the system of federalism and the breakdown that occurred in 1937 when the Supreme Court held that the federal government could regulate economic activity
Discusses the Tenth Amendment to the U.S. Constitution, the system of federalism and the breakdown that occurred in 1937 when the Supreme Court held that the federal government could regulate economic activity
Under the Constitution, the federal government is [one] of express enumerated powers rather than ... of general powers. The state governments, on the other hand, are governments of general powers, but with two exceptions. One exception comes in the form of the Constitution's specific restrictions on state powers ... The other exception comes in the form of powers delegated and exercised by the federal government that [it] prohibits the states from exercising concurrently ... something else important to note here: The Bill of Rights, by its own terms, applies only to the federal government, not to the state governments.
The Bill of Rights: Unenumerated Rights, by Jacob G. Hornberger, Freedom Daily, Apr 2005
Examines the rationale and history behind the Ninth Amendment to the U.S. Constitution, citing both James Madison and Griswold v. Connecticut (1965)
Examines the rationale and history behind the Ninth Amendment to the U.S. Constitution, citing both James Madison and Griswold v. Connecticut (1965)
By the way, waging wars on drugs and terrorism are not among the government's enumerated powers listed in the Constitution. Who is responsible for this travesty? Ultimately, the American people ... As our ancestors well understood, the type of people who gravitate to governmental power will inevitably thirst for ever-increasing power, a phenomenon against which our ancestors tried to protect us with the enumerated-powers doctrine of the Constitution ... The American people have permitted federal officials to indulge their thirst for power by letting them break free of the constitutional constraints that originally bound them.
The Constitution or Liberty, by Sheldon Richman, The Goal Is Freedom, 7 Dec 2007
Contrasts Article II of the Articles of Confederation with the Tenth Amendment and Article I, Section 8 of the U.S. Constitution, and discusses the implied powers doctrine (a revised version was published in The Freeman, Jan/Feb 2008)
Contrasts Article II of the Articles of Confederation with the Tenth Amendment and Article I, Section 8 of the U.S. Constitution, and discusses the implied powers doctrine (a revised version was published in The Freeman, Jan/Feb 2008)
This suggests that while the Articles of Confederation was a document of explicitly enumerated congressional powers, the Constitution, contrary to widespread belief, apparently was not ... Professor Calvin H. Johnson ... published an illuminating paper titled "The Dubious Enumerated Power Doctrine". [He] presents formidable evidence that the framers had no intention of limiting the national government's powers to the 16 items listed in Article I, Section 8 ... Johnson writes. "When challenged ... the Framers explained that the expressly delegated limitation had proved 'destructive to the Union' ..."
The Federal War on Gold, Part 1, by Jacob G. Hornberger, Freedom Daily, Aug 2006
Discusses some of the clauses in the U.S. constitution regarding coinage and the issuance of paper money by the federal government
Discusses some of the clauses in the U.S. constitution regarding coinage and the issuance of paper money by the federal government
"Bills of credit," which Article 1, Section 8, prohibited the states from "emitting," were commonly understood to be paper money. That part of the Constitution expressly prohibited the states from issuing paper money. Why isn't there a similar constitutional restriction for the federal government? The answer lies in the overall philosophy of the Constitution. In establishing the federal government, the Constitution made clear that the government's powers were limited to those enumerated in the Constitution. If a power wasn't enumerated, it was understood that it could not be exercised.
Related Topics: United States Constitution, Founding Fathers, Gold Standard, Inflation, Money, Taxation
The Federal War on Gold, Part 2, by Jacob G. Hornberger, Freedom Daily, Sep 2006
Continues with the brief monetary history of the United States, discussing Abraham Lincoln's war loans and legal tender law, and the Supreme Court cases of Hepburn v. Griswold (1870) and Knox v. Lee (1871)
Continues with the brief monetary history of the United States, discussing Abraham Lincoln's war loans and legal tender law, and the Supreme Court cases of Hepburn v. Griswold (1870) and Knox v. Lee (1871)
Through the U.S. Constitution, the American people brought into existence one of the soundest monetary systems in history ... [O]ur American ancestors didn't trust government, for they understood that the greatest threat to the liberty and well-being of a citizenry lay with its own government. Thus, while the Constitution brought the federal government into existence, it simultaneously limited its powers to those enumerated in the document. If the power wasn't listed, it simply could not be exercised, no matter how important the need, no matter how severe the crisis or emergency.
Related Topics: American War Between the States, United States Constitution, Founding Fathers, Abraham Lincoln, Money
Individual Liberty and the Constitution: A Response to Robert Bork, by Roger Pilon, 9 Jul 2008
Responds to Robert Bork's essay "Individual Liberty and the Constitution" published in the June 2008 issue of The American Spectator
Responds to Robert Bork's essay "Individual Liberty and the Constitution" published in the June 2008 issue of The American Spectator
[G]iven the enumeration of powers—"few and defined" (Madison, Federalist 45)—the vision that emerges, unlike Bork's, is one of "wide areas" in which individuals are free simply because they're born free; whereas in "some areas" majorities are entitled to rule because they're so authorized. There, indeed, is the Constitution's theory of legitimacy: power is legitimate only if constitutionally authorized. The doctrine of enumerated powers is thus key to understanding the Constitution: absent a power, by implication there is a right.
Related Topics: United States Bill of Rights, Individual Liberty
James Madison: Father of the Implied-Powers Doctrine, by Sheldon Richman, The Goal Is Freedom, 26 Jul 2013
Examines whether James Madison intended the U.S. federal government to have "expressly delegated" powers vs. "powers by implication"
Examines whether James Madison intended the U.S. federal government to have "expressly delegated" powers vs. "powers by implication"
[James] Wilson sought to assure the people that the government's powers were expressly limited by enumeration: "The congressional authority is to be collected, not from tacit implication but from the positive grant expressed ... [E]very thing which is not given [to the national government], is reserved [to the states]." But this assertion was met with incredulity by many ... Arthur Lee of Virginia ... scoffed: "Mr. Wilson's sophism has no weight with me when he declares ... that ... we retain all we do not give up, because I cannot observe on what foundation he has rested this curious observation."
Related Topics: United States Constitution, Thomas Jefferson, James Madison, Reserved Powers, Taxation
On the Origins of the Modern Libertarian Legal Movement [PDF], by Roger Pilon, Chapman Law Review, 2013
Historical survey of libertarian influences on constitutional and other areas of law, from the mid-1970s to recent decisions
Historical survey of libertarian influences on constitutional and other areas of law, from the mid-1970s to recent decisions
Twenty-five years and more ago, most conservatives had made their peace with the New Deal Court's rejection of the very centerpiece of the Constitution, the doctrine of enumerated powers, from which the document derives such legitimacy as it can have as positive law ... Their concern ... was that courts might recognize rights not enumerated in the document. Yet the plain text of the Constitution, together with its structure, should make it clear to any textualist that countless rights, only a few of which could have been enumerated in the document, are nevertheless recognized by and hence "in" the Constitution ...
What Is the Constitution?, by Sheldon Richman, Freedom Daily, Jun 2002
Discusses constitutional interpretation of allowed governmental powers and restrictions on such powers, in particular the ninth and tenth amendments, in light of comments from Justice Antonin Scalia about a national ID card
Discusses constitutional interpretation of allowed governmental powers and restrictions on such powers, in particular the ninth and tenth amendments, in light of comments from Justice Antonin Scalia about a national ID card
James Madison ... said that the central government was delegated powers that are "few and defined." This is backed up by the Constitution itself. Article I, Sec. 8 contains a short list of powers given to the Congress. To reinforce this point, the Tenth Amendment (in the Bill of Rights) ... was adopted at the urging of those who thought the Constitution would allow the government to grow too powerful ... The upshot is that the national government was not given a general grant of power to do whatever officeholders think is right. It was given specific powers and only those.
The introductory paragraph uses material from the Wikipedia article "Enumerated powers (United States)" as of 19 Nov 2018, which is released under the Creative Commons Attribution-Share-Alike License 3.0.