Enumerated Powers

• Author: Sotirios A. Barber
• Pages: 899-900

Page 899

Instead of establishing a national government with a general power to do whatever it might deem in the public interest, the Constitution lists the authorized powers of Congress. The chief source of these "enumerated powers" is Article I, section 8, which authorizes Congress to regulate commerce among the several states, tax and spend, raise and support military forces, and so on. This enumeration has been supplemented by other grants, including authority to enforce the CIVIL WAR amendments.

The enumeration of powers has both a negative and a positive implication. Enumerating or specifying powers implies that some of government's ordinary concerns are beyond the constitutional competence of the national government. This implication is made explicit by the TENTH AMENDMENT. Nevertheless, the founding generation wanted to solve such specific problems as commercial hostility among the states and an unpaid war debt. When THE FEDERALIST defended the proposed national powers it cited the desiderata that might be achieved through their successful exercise. The enumeration of powers thus implies affirmative responsibilities as well as limited concerns. These competing implications are associated with competing approaches to constitutional interpretation and different conceptions of the normative character of the Constitution as a whole. As a reminder of a line between national and state powers, the enumeration of powers suggests THOMAS JEFFERSON'S view of the Constitution as a contract between sovereign states to be construed with an eye to preserving state prerogatives. As a reminder of affirmative responsibilities the enumeration suggests JOHN MARSHALL'S view of the Constitution as a charter of government to be construed in ways that permit achievement of the social objectives it envisions. History has not favored the Jeffersonian view.

ALEXANDER HAMILTON, in The Federalist #84, cited the enumeration of powers as one reason for opposing a BILL OF RIGHTS. Not only were bills of rights unnecessary in countries whose governments possessed only those powers that their people had expressly granted, specifying rights could undermine the enumeration of powers by suggesting "to men disposed to usurp" that the Constitution authorized all that the bill of rights did not prohibit. The result Hamilton ostensibly feared was achieved through constitutional doctrines that accompanied the nation's progress toward the economically...