Enumerated powers

“ The compact itself expressly provides that all powers not delegated are reserved to the states and the people. To ascertain, then, whether the power in question is delegated or reserved, it is only necessary to ascertain whether it is to be found among the enumerated powers or not. ”

“ In our complex system, presenting the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only enumerated powers, and of numerous state governments, which retain and exercise many powers not delegated to the Union, contests respecting power must arise. ”

“ My doctrine is subject to no such accusation; the principles of the constitution are uniform and unalterable. It is an uniform and unalterable principle, that Congress have the power to lay and collect taxes; they have the same positive, unchangeable right to exercise all the enumerated powers, the only rule of construction relating to them being that the means you use have a necessary relation to the power on which you legislate. ”

“ The reserved powers of the states would then exist only by the sufferance of Congress, and the cardinal theory of the American system—that the federal government is one of enumerated powers—would become a cynical fiction. ”

“ Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President and Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence. Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the constitution, those powers which time and trial show are still wanting. ”

“ While this nation is as between it and the states one of enumerated powers, it is within the scope of those enumerated powers supreme, and, as the power to regulate commerce between the states is expressly given to Congress, and no division provided for, it follows that it is wholly withdrawn from state control ”

“ The more important powers are specially granted; but the choice from the known and useful means of carrying the power into effect, is left to the decision of the legislature. He enumerated some other powers which are specified in the Constitution as belonging to Congress, and of which the means of execution are not mentioned ”

“ and that, therefore, this commonwealth is determined, as it doubts not its co-states are, to submit to undelegated and consequently unlimited powers in no man, or body of men, on earth; that, if the acts before specified should stand, these conclusions would flow from them—that the general government may place any act they think proper on the list of crimes, and punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them; ”

“ The people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact; to make the powers of the state governments, in given cases, subordinate to those of the nation ”

“ But of the two, it is much safer to run the risk on the side of the constitution; for an omission in the enumeration of the powers of government is neither so dangerous nor important as an omission in the enumeration of the rights of the people. ”

“ If, wherever the constitution assumes a single power out of many which belong to the same subject, we should consider it as assuming the whole, it would vest the General Government with a mass of powers never contemplated. ”

“ That the right is not waived in the case under consideration, is apparent from the fact already stated, that if the judiciary be the sole judges of the extent of their own powers, their powers are universal, and the enumeration in the Constitution is idle and useless. ”

“ Much has been said concerning the division of powers, that is, of dividing the one common power of government into many. It has been said that the legislative power must be separated from the executive ”

“ The states, on the other hand, existing before the general government, and possessing entire sovereignty or supreme power, may exercise all powers which they have not surrendered to the general government. In other words, their powers are unlimited, except so far as they have parted with any of their original powers. ”

“ That, in organizing a government with different departments, in each of which the States are represented in a twofold aspect, in the manner stated, it was the object of the framers of the constitution, to make it more, instead of less popular than it would have been as a government of the mere numerical majority — that is, as requiring a more numerous, instead of a less numerous constituency to carry its powers into execution — may be inferred from the fact, that such actually is the effect. ”

“ The reasoning of the Federalist is to the same effect. Every power, which is the means of carrying into effect a given power, is implied from the very nature of the original grant. It is a necessary and unavoidable implication from the act of constituting a government, and vesting it with certain specified powers. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative power, but laws? ”

“ The limited and well-defined powers under which we acted, and which could not, on any possible construction, embrace an idea of such magnitude as to assent to a general Constitution, in subversion of that, of the state. ”

“ I refer to the prevalent opinion, that a written constitution, containing suitable restrictions on the powers of government, is sufficient, of itself, without the aid of any organism — except such as is necessary to separate its several departments, and render them independent of each other — to counteract the tendency of the numerical majority to oppression and the abuse of power. ”

“ You change the means to attain the end, but the end itself, the enumerated power in the constitution, remains unchanged. As long as the constitution exists, you must select the means most proper for executing the enumerated rights at the precise moment at which you legislate respecting them. ”

“ In France, since 1789, this majority has been in fact the sole and necessary source of all legitimate authority. The existing powers are all creations of this majority, and all are based on the constitution which is its work. Any power which is suspected of not representing it, or of misrepresenting it, loses in a sense, its justification for existence, and is marked out by this want of harmony for immediate destruction or transformation. ”

“ As far as they are concerned, the State, as a party to the constitutional compact, has the right to decide, in the last resort — and, acting in the same character in which it ratified the constitution, to determine to what limits its powers extend, and how far they are bound to respect and obey it, and the acts made under its authority. ”

“ If the division of federal powers central to the constitutional scheme is to succeed in its objective, it seems to me that the fundamental nature of those powers must be preserved as that nature was understood when the Constitution was enacted. ”

“ That a compact between two, with authority reserved to one to interpret its terms, would be a surrender to that one of all power whatever.
3. Therefore, (such is his inference,) the general government does not possess the authority to construe its own powers.
Now, Sir, who does not see, without the aid of exposition or detection, the utter confusion of ideas involved in this so elaborate and systematic argument.
The Constitution, it is said, is a compact between States; the States, then, and the States only, are parties to the compact. How comes the general government itself a party? ”

“ Under the Second of these Divisions may be ranged all the Art of the Legislator and Politician, all the power of Laws and Government. These do constitute the Civil Power; and a State may then be said to be in good Order, when all the other Powers are subservient to this; when they own its superior Excellence and Energy, pay it a ready Obedience, and all unite in Support of its Rule. ”

“ But if you were assembled in general convention, which would you think the safest depository of this discretionary power in the last resort? Would you add a clause, giving it to each of the states, or would you sanction the wise provisions already made by your constitution? If this should be the result of your deliberations, when providing for the future, are you, can you be ready to risk all, that we hold dear, to establish, for a temporary and a local purpose, that, which you must acknowledge to be destructive and even absurd, as a general provision? ”

“ The chief objection to the unlimited control of insular territory by Congress is that Congress itself, by the Constitution, possesses only limited powers. How can a limited Congress exercise unlimited powers? ”

“ In every new application of a general power, the particular power, which are the means of attaining the object of the general power, must always necessarily vary with that object; and be often properly varied, whilst the object remains the same. [44] Even under the confederation, where the delegation of authority was confined to express powers, the Federalist remarks, that it would be easy to show, that no important power delegated by the articles of confederation had been, or could be, executed by congress, without recurring more or less to the doctrine of construction or implication! ”