by Jacob G. Hornberger
by Jacob G. Hornberger
The Constitution brought into existence the most unusual government in history. It was a government whose powers were limited to those enumerated in the document itself. If the power wasn't enumerated, the government could not exercise it. Fearful that the newly formed government might try to break free of that enumerated-powers straitjacket, the American people, through their duly authorized representatives, enacted the Bill of Rights.
The first eight amendments to the Constitution expressly prohibit the federal government from denying people fundamental rights and important procedural protections. To ensure that federal officials would not later claim that the list of such rights was exclusive, the Ninth Amendment was enacted.
Then, to ensure that powers not expressly delegated to the federal government could still be exercised by the states, the Tenth Amendment was enacted. It reads as follows:
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.
The issue of power — and the potential for conflict of power between the federal and the state governments — was of critical importance to our forefathers. Don't forget that our ancestors severely distrusted government power and that the last thing they wanted was to bring into existence a federal government with the same amount of power that the British government had had over the British colonists.
In delegating certain powers to the federal government, the states, with some exceptions, were free to continue exercising their sovereign powers.
Notice the difference: Under the Constitution, the federal government is a government of express enumerated powers rather than a government 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. For example, the Constitution expressly prohibits the states from entering into treaties, coining money, making anything but gold and silver coin legal tender, passing bills of attainder, and enacting ex post facto laws and laws impairing the obligation of contracts.
The other exception comes in the form of powers delegated and exercised by the federal government that the federal government prohibits the states from exercising concurrently. For example, suppose the federal government exercises its delegated power to regulate commerce among the several states. It can bar the states from concurrently exercising such power even though the Constitution does not expressly bar the states from doing so.
This system of federal and state powers is known as federalism. By dividing power in that way, the idea was to keep the central government weak and keep political power closer to the people. Compare that to a country that has one central, national government, which is responsible for governing the entire nation.
Obviously, it is not always easy to delineate clearly the line between federal jurisdiction and state jurisdiction, but federalism has always been a core element of America's political system. As the authors of American Jurisprudence 2nd (1979) put it, The distinctive operation of the state and federal governments within their respective spheres is basic to a federal constitutional system, however complicated and difficult the practical accommodation to it may be.
There's 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. For example, the First Amendment prohibits the Congress, not the state legislatures, from depriving people of freedom of religion, freedom of the press, and the right to peaceably assemble. By the same token, although it doesn't expressly mention the federal government, the Second Amendment operates to protect the right to keep and bear arms from federal infringement but not from infringement by the states.
Therefore, when the Constitution came into existence the state governments, being governments of general powers, theoretically had the power to deprive people of freedom of speech, freedom of religion, and other such rights.
So why didn't the states exercise such general powers? Because the concepts of fundamental rights and procedural protections were so ingrained in the hearts and minds of the citizenry, evidenced by the fact that the states had bills of rights in their own constitutions. In fact, given that state constitutions predated the Bill of Rights, the latter was actually modeled on them.
It's important to note though that if there wasn't an express restriction in the state constitution, there was nothing to prevent a state government from abridging fundamental rights of the people — except, of course, by electing a new legislature with the intent of having the offending law repealed.
Ultimately, after the post-Civil War adoption of the Fourteenth Amendment, the Supreme Court held that the Due Process clause of that amendment effectively incorporated the rights and guarantees in the federal Bill of Rights and applied them to the states.
Thus, before the enactment of the Fourteenth Amendment, when a state abridged a person's rights, the person was limited to filing suit in state court seeking a declaration that the state's action violated the state constitution. After the Supreme Court adopted the incorporation doctrine associated with the Fourteenth Amendment, a person could sue in either state or federal court seeking a declaration that the state's action violated both the state and the federal constitutions.
Therefore, the operative effect of the Fourteenth Amendment on the Tenth Amendment is that while the states retain reserved powers under the Tenth Amendment, any exercise of those powers that abridge fundamental rights and liberties is prohibited under the Fourteenth Amendment.
Prior to the 1930s, the concept of federalism was fairly well understood. People knew that the federal government could not exercise general powers, not even when federal officials believed it was in the best interests of the people to do so. If Congress enacted a law, it was the job of the judiciary to compare that law with the enumerated powers of the federal government in the Constitution. If the law fell outside those enumerated powers, the judiciary would find it unconstitutional.
If a state law was enacted and someone questioned its validity under the U.S. Constitution, the judiciary's analysis would be different. Instead of looking for enumerated powers and comparing the law with them, the judiciary would look for express restrictions on state power — or federal exercise of such power — and compare the state law with them. If there was an express restriction or if the federal government had exercised the power and barred the states from concurrently exercising it, the state law would be declared unconstitutional; otherwise, it would be declared constitutional.
In the 1930s everything changed — in a revolutionary way. In fact, it is impossible to overstate the magnitude of that change. With the advent of the Great Depression, the push on the part of federal officials to break free of their enumerated-powers straitjacket with respect to government welfare and economic regulation became too powerful, even for the federal courts. The argument was that since people were suffering all over the country from an economic emergency, only the federal government could provide the necessary relief and, therefore, not even the Constitution should stand in the way of such an aim.
For a while, a majority of the justices on the Supreme Court held fast, correctly holding that under the Constitution an emergency does not give rise to new powers on the part of the federal government. In fact, the Court noted that it is during emergencies that people's liberties are most in peril at the hands of their own government and, therefore, that is when they most need the protections of the Constitution. (See my 12-part series Economic Liberty and the Constitution [June 2002—May 2003 Freedom Daily.])
A good example involved the National Industrial Recovery Act (NIRA), which was administered by the National Recovery Administration (NRA). Symbolized by stickers displaying a Blue Eagle, this congressionally enacted law radically transformed the nation by bringing businesses and industries all over America under the direct control of the federal government. Anyone who resisted the law was branded a traitor to America and was ostracized, criticized, and condemned.
Ultimately the U.S. Supreme Court declared the NIRA unconstitutional, partly on the ground that under the U.S. Constitution the federal government did not have the authority to regulate intrastate enterprises.
In 1937, as a result of a shift in personnel on the Court, everything changed. The Supreme Court effectively held that from then on, in the area of economic activity the federal government would have the omnipotent power to control any economic enterprise anywhere in the nation.
Thus, without even the semblance of a constitutional amendment, the federal government effectively became a government of general powers with respect to welfare programs and regulation of economic activity. The federal government's New Deal power became so extensive that its regulation of a farmer who did nothing more than grow wheat on his own farm for his own consumption was upheld by the Court in the famous case of Wickard v. Filburn.
The same type of thing occurred with respect to state legislation. Prior to the late 1930s, the Supreme Court was holding that state legislation that regulated economic activity violated the Due Process clause of the Fourteenth Amendment.
A good example involved state minimum-wage laws. Holding that a voluntary contract between an employer and employee was an essential aspect of human liberty, the Court had previously held that state laws that took away such liberty were a violation of substantive due process.
After 1937, however, the Court's protection of economic liberty from state infringement became a thing of the past, again as a result of the ideological realignment on the Court. As long as it was strictly economic activity that was at issue (as opposed to, say, freedom of speech), the post-1937 Court effectively held that the states could exercise whatever powers they wanted.
Today there is hardly any part of people's economic lives that is not subject to control and regulation by government, both federal and state. When asked to cite the constitutional justification for such federal power, federal officials inevitably cite the general welfare clause of the Constitution, ignoring that, by setting up a government of enumerated powers, the last thing the Framers intended was to set up a federal government with such general powers over the citizenry.
By the same token, the state governments are free to regulate the most minute aspects of people's economic activities. The powers are upheld under the traditional police powers of the states. The federal judiciary simply ignores the clause in the Fourteenth Amendment that expressly prohibits a state from depriving a person of life, liberty, or property without due process of law.
While the purpose of the Constitution was to call the federal government into existence, its simultaneous aim, along with that of the Bill of Rights, was to protect the American people from an elected despotism.
To accomplish such dual purposes — the establishment of a national government and the protection of liberty — our forefathers integrated a complex system of enumerated powers, guaranteed rights and freedoms, remainder powers, separation of powers, and federalism.
As our forefathers understood so well, the greatest threat to people's freedom and well-being lies with their own government, and express constitutional restrictions on the exercise of government power are necessary to protect the fundamental rights and liberties of the people.
Copyright © 2005 Future of Freedom Foundation