- Published: 08 January 2012
The Constitution's enumeration of powers granted to the Federal government is summed up by Madison in The Federalist number 45, as we have seen, as being: ". . . few and defined . . . will be exercised principally on external objects, as war, peace, negociation, and foreign commerce . . ." It is of interest to note briefly some principal examples of fields of power which are prohibited to the Federal government by the Constitution, as amended to the present writing.
In The Federalist number 17, Hamilton decried the idea that the new Federal government--to be created under the Constitution, then in process of ratification--would not respect the strict limits on its powers as prescribed in this fundamental law but would usurp the reserved powers of the States; as was being asserted by those who were extremely fearful of any central government with substantial powers and were arguing in favor of stricter and clearer limits on Federal power. Chief among these were Patrick Henry, Richard Henry Lee and Samuel Adams. Hamilton here mentioned commerce, finance, negotiation, and war as being the principal fields of power properly delegated to the Federal government but he expressly made it clear that agriculture is excluded. He classified agriculture as a field belonging to the reserved powers of the States--as one which could never properly be under the control of the central government:
"The administration of private justice between the citizens of the same state, the supervision of agriculture and of other concerns of a similar nature, all those things in short which are proper to be provided for by local legislation, can never be desireable cares of a general jurisdiction."
By "general jurisdiction" he meant the Federal government. The field of agriculture was no doubt chosen by Hamilton for specific mention here because it was common knowledge--not only among those who had framed the Constitution but among all other leaders as well as the people at large---that nothing would have been considered more unarguably and absurdly false than any claim that the activities of people engaged in agriculture would be subject to Federal regulation or control, directly or indirectly, under the Constitution's wording as understood by The Framers and Adopters and everyone else.
Several other illustrations of prohibited power were provided by President Jefferson in his Second Inaugural Address. He discussed the constructive uses of any possible surplus revenues of the Federal government and mentioned some which he stated are outside of the scope of power of this government under the Constitution, expressly noting that an amendment of the fundamental law would be necessary before such use could be made of any surplus of tax monies:
". . . by a just repartition among the states, and a corresponding amendment of the constitution, be applied, in time of peace, to rivers, canals, roads, arts, manufactures, education, and other great objects within each state." (Emphasis added, except "in time of peace" emphasized in the original.)
In other words, Federal spending for these specified purposes was not authorized by the Constitution--these fields of activity being excluded from the scope of the Federal government's power under the Constitution; so an amendment would be necessary in order to give any such spending the necessary sanction through the properly expressed consent of the people. In his sixth annual Message to the Congress in 1806, Jefferson again discussed possible surplus revenues and their use in such fields requiring a constitutional amendment:
". . . application to the great purposes of the public education, roads, rivers, canals, and such other objects of public improvement as it may be thought proper to add to the constitutional enumeration of federal powers . . . I suppose an amendment to the constitution, by consent of the States, necessary, because the objects now recommended are not among those enumerated in the constitution, and to which it permits the public moneys to be applied." (Emphasis added.)
It is particularly interesting to note that Jefferson here soundly distinguished between using Federal monies to aid education (mentioning particularly a national institution of scientific learning )--which he stated is unauthorized, unless and until an amendment to the Constitution would be adopted authorizing it; and, on the other hand, aiding education by making land-grants from the colossal holdings of virgin and unsettled land already owned by the Federal government (by occupation, purchase or conquest from the Indians and foreign governments), which he stated the Congress "now have it in their power" so to use. Such aid to education by Federal land-grants was already customary; it had been commenced under the Confederation and was generally considered to be within the powers of the Federal government under the Constitution--but not so as to tax-monies in the Federal treasury.
Special emphasis is needed with regard to the basis of this distinction between such Federal land-grants and money-grants, as to constitutionality: the Federal government has the power to dispose of land and other property it owns (Art. IV, Sec. 3) and, furthermore, single-transaction land-grants could not possibly accomplish the unconstitutional objective of permitting it to obtain, in effect, any control over the recipients. On the other hand, the Constitution did not specify aid to education as one of the purposes for which the Federal government (specifically the Congress) might tax and spend; and furthermore periodic, or regular, grants of money could not but have the practical effect of giving this government--perhaps indirectly, gradually and subtly but nevertheless inescapably--substantially controlling influence over the recipient institutions, or persons. This is due partly to the reason cited by Hamilton in The Federalist number 79: "In the general course of human nature, a power over a man's subsistence amounts to a power over his will." (Emphasis Hamilton's.) In other words, "he who pays the piper calls the tune." Such control can even be effectively manifested negatively, by creating inhibitions on the part of the recipient of the subsidy or grant of funds, rather than through control affirmatively and outrightly. For example, those who would hope for a Federal grant in the future--such as a scholar, or a college--would be strongly inclined to refrain from criticism of this government regarding things which would otherwise be freely and vigorously condemned as unsound.
This is why Hamilton, as Secretary of the Treasury, carefully restricted his contention in 1791 so as to exclude Federal control, when he first argued in favor of the idea that the Taxing Clause gives the Federal government a separate and substantive power for the "application of money," within the limits of what would serve the general welfare. He also stated, in another document, that it would not ". . . imply a power to do whatever else should appear to Congress conducive to the general welfare" and continued:
"A power to appropriate money with this latitude, which is granted, too, in express terms, would not carry a power to do any other thing not authorized in the Constitution, either expressly or by fair implication." (1791 "Opinion as to the Constitutionality of the Bank of the United States"; and 1791 Report on "Manufactures.")
The Taxing Clause, using the words "general Welfare," (Art. I, Sec. 8) states: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . ."
Hamilton always denied that this clause gives Congress a general legislative authority--to legislate regarding, and so as to achieve, whatever Congress might consider to be for the common good. He never varied from his assertion in The Federalist number 83, regarding the plan of the Framing Convention expressed in the Constitution, with regard to such authority, as follows:
"The plan of the convention declares that the power of congress or in other words of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority; because an affirmative grant of special powers would be absurd as well as useless, if a general authority was intended." (Emphasis per original.)
Hamilton never contended for--indeed, he evidently would have opposed strenuously--use of the Federal power to tax and spend so as in effect to give the Federal government indirectly any control over anything, or anybody, which is not directly and openly authorized by the Constitution and its amendments through enumeration of the powers granted to it by the people. He would undoubtedly have agreed with the distinction which Jefferson drew--in the above-mentioned addresses made after Hamilton's death--with regard to Federal aid to Education: that land-grants in aid of education are constitutional, partly because they could not possibly produce any degree of control over the recipient institutions due to such grants being a single-transaction measure as to each of the recipient institutions.
The opposite would be true as to Federal grants of monies periodically, because they could not possibly avoid producing the effect of substantial control over the recipient--however gradual, or subtle, or indirect, or negative (by creating inhibitions) and regardless of how arranged so as to conceal the element of control. In the 1936 Butler case, the Supreme Court truly stated (pages 70-71 of opinion): "The power to confer or withhold unlimited benefits is the power to coerce or destroy;" and it restated (pages 73-74) and applied the cardinal, constitutional principle that what the Constitution does not specifically empower the Federal government to do directly, so as to be able to exercise control, ". . . it may not indirectly accomplish those ends by taxing and spending to purchase compliance." In other words, a power granted by the Constitution may not be misused by this government so as in effect to enable it indirectly to exercise a power which has not been so granted and therefore has been prohibited to it. While in the related Wickard case (1942) the Court asserted [correctly, but only if it be true that the particular subsidy is authorized by the Constitution] that: "It is hardly lack of due process for the Government to regulate that which it subsidizes." (Page 131 of opinion; here "regulate" means control.) Judged by his writings, including his 1791 assertions noted above, Hamilton would have agreed and would have disapproved, as unconstitutional, any and all subsidy-and-control schemes of the Federal government except such as might be directly and clearly authorized by the people, by a constitutional amendment, empowering this government so to control openly and directly the persons, or institutions, subsidized. Madison and all of the other Framers and Adopters of the Constitution also would have agreed--Jefferson, too.
The fields of power denied to the Federal government by the Constitution, according to both Hamilton and Jefferson--agriculture, education and so on, as noted above---could be multiplied by citing other writings by them and other Founders; but this is unnecessary for present purposes and would not take into account any additions to Federal power authorized by subsequent amendments. It is desirable, therefore, to quote here a modern writing which correctly reflects the views of The Framers and Adopters as to the initial instrument's exclusion of fields of power from Federal control and, in addition, takes into account all amendments to the present period.
A 1930 writing which fills this need is available; and, in addition, it is an excellent and concise discussion of the traditional American philosophy and system of government regarding especially the nature and importance of decentralization of power ("States Rights") as a mainstay of the security of the people's liberties. The Constitution has not been amended since 1930 to increase Federal power, so this writing in effect speaks as of today with regard to the extent of Federal powers; indeed, they have since been decreased by repeal of the 18th ("Prohibition") Amendment by adoption in 1933 of the 21st Amendment. This 1930 writing is cited for the further reason that it is couched in simple terms and presents only ideas which were then common knowledge and accepted truths among the American people--even among Youth with a normal high-school education for that period--as well as among the people through all generations from 1787 to 1930. The writing is cited not because it expressed anything new, or any original thinking of its author but, on the contrary, because it did not do so. Its special usefulness and value stem from the fact that it merely re-stated the traditional view as always understood and supported up to 1930 by all competent scholars and authorities--including the three Branches of the Federal government, especially the Supreme Court--as well as by leaders and the American people in general. This widespread understanding was such in 1930 that, if the valedictorian of a graduating class of a college, or even of a high school, had then made this address as the one usual on such an occasion, the audience would justly have applauded on the ground that there was nothing in it but long-accepted truths so well known that it merely evidenced the young orator's being soundly and reasonably well-informed regarding the elementary simplicities of the traditional American philosophy and system of constitutionally limited and decentralized power and its fundamental importance to the safety of the American people's God-given, unalienable rights.
This writing referred to is the March 2, 1930 "States Rights" address of Governor Franklin D. Roosevelt of New York--the full text of which, for the foregoing reasons, is set forth in the Appendix to this study-guide. This Address--made as an appeal to the American people for support of his plan to be elected President and presenting some of the basic principles which, he impliedly assured them, he would if elected faithfully support--was in criticism of any concentration of power in Washington in violation of the Constitution's limits on Federal power.
The entire address merits careful study for the reasons previously noted; but, at this point in the present discussion of fields of power prohibited to the Federal government by the Constitution as amended, the following short quotation will suffice:
"As a matter of fact and law, the governing rights of the States are all of those which have not been surrendered to the National Government by the Constitution or its amendments. Wisely or unwisely, people know that under the Eighteenth Amendment Congress has been given the right to legislate on this particular subject, but this is not the case in the matter of a great number of other vital problems of government, such as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social wel[are and of a dozen other important features. In these, Washington must not be encouraged to interfere." (Emphasis added.)
To repeat, the Constitution has never been amended since 1930 so as to increase the Federal government's power. Since then, no amendment has granted it any power to control any of the prohibited fields of power specified by Hamilton, Jefferson and Roosevelt as mentioned above. It is of unusual interest to note that agriculture---expressly listed by Hamilton in 1787 and by Roosevelt as of 1930 as being among the fields of power prohibited to the Federal government by the Constitution--was the subject of the above-mentioned Butler case (1936): There the Supreme Court confirmed the fact of such prohibition, in deciding that the Federal law under consideration--seeking to subsidize and control agriculture--violated the Constitution's limits on Federal power and therefore was null and void, judged by this instrument's original meaning which the Court correctly ruled is controlling unless and until the people change these limits by due amendment of this basic law.
It is a fundamental principle of the American philosophy that the people themselves, as well as their public servants who are sworn to support the Constitution faithfully, must respect the existing limits on the Federal government's power under the Constitution, as amended; which can be changed by the people only by its amendment. Referring to the amending process as a "solemn and authoritative act," Hamilton stated the principle (previously noted) in The Federalist number 78 as follows: "Until the people have by some solemn and authoritative act annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act." (Here "sentiments" refers to public opinion in favor of some measure not authorized by the Constitution.) The reason why this principle is so basically important was stressed in Washington's Farewell Address as follows:
"If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield."
This highlights the tremendous importance of the American people's being always soundly informed with respect to the limits on the Federal government's power under the Constitution; as amended, in order to be able to perform adequately the duties inherent in Individual Liberty-Responsibility and thus make possible the enduring safety of their God-given, unalienable rights and Posterity's just heritage of Individual Liberty and its supporting system.