It’s important that we educate our children on the topics of politics, government, and the Constitution which governs our nation. This nine-part series attempts to remind us of some basic principles, lest they be forgotten by the next generation.Where does the government derive its powers? What allows the government to legally take actions such as declaring war, taxing an inheritance, or building a highway? The answer is that it must come from the Constitution, or one of its modifiers such as the Bill of Rights or a Constitutional Amendment. Without an authority to refer to, the government could very well be acting in an illegal manner!
The limit of this authority is a topic which was hotly debated by the founding fathers. Having escaped from the tyranny of King George III in Britain and his frequently oppressive rule, the founders were conscious that they should avoid the formation of a government which could impose subjective and capricious rules on its people. In their eyes, the government was in place to support the people’s will – not crush their liberties. And so they were very specific about defining the role and powers given to the government.
Article 1, Section 8 of the Constitution details the powers that Congress may employ. This section lists exactly eighteen different “powers”, and includes items such as the ability to collect taxes to pay for defense and general welfare, to borrow money, to coin money, to establish Post Offices, to declare war, and to maintain a navy. Obviously, the list has to have limits, as it cannot go on forever. There are some debatable items in the list regarding the extent to which they may be taken (such as the General Welfare clause, which we will take up in Part 8), but viewed in perspective, the list is relatively short. Remember, the founders intended for specifics to be delegated by the states – not by the federal government. To add even more weight to this argument, consider the short but powerful words of the Tenth Amendment.
In 1791, President George Washington was considering the idea of a national bank. In order to better understand the constitutionality of this enterprise, he asked two others to provide him with arguments for and against the idea. These two men were Thomas Jefferson and Alexander Hamilton. Knowing that these two men were at the opposite ends of the spectrum on the interpretation of the Constitution, he undoubtedly expected to get both sides of the argument. He was not disappointed.
As expected, Thomas Jefferson, a strict and conservative interpreter of the Constitution, found no basis for the legality of establishing a national bank. His belief was that the Constitution listed the express powers of the government – and that there were no other powers to be inferred. In short, if it wasn’t explicitly listed in the Constitution as a federal power, then the government could not legally engage in the act. Thus, the idea of Jeffersonian democracy, which believes that the national government is a dangerous necessity to be instituted for the common benefit, protection, and security of the people, and that it should be watched closely.
Alexander Hamilton used this opportunity to formulate a new approach to the Constitution – the idea of implied powers. In his response to Washington, he stated that “there are implied, as well as express powers [in the Constitution], and that the former are as effectually delegated as the latter.” He added that, “Implied powers are to be considered as delegated [to the federal government] equally with express ones”. In just two sentences, Hamilton advocated for unlimited and unchecked power by the federal government. One could make the argument that he would be happy with the state of our government today.
The problem with implied powers is that there is no clearly defined point at which to restrict the government’s power over the people. Where does the “power grab” end? If we trust that our leaders will understand when they overstep their boundaries and will agree to pull back, then we will be very disappointed, for that is not in their nature. Nevertheless, the founders had to know that they could not think of every possible situation where government involvement might be needed. And indeed, they did know this. Article 5 of the Constitution provides for the ability to propose and ratify amendments to the Constitution whenever Congress “shall deem it necessary”. The process to adopt an amendment is not an easy one. The amendment must be proposed by two-thirds of the Congress, or two-thirds of the state legislatures. To be adopted, it must be ratified by no less than three-quarters of the state legislatures. Imagine the difficulty in getting 75% of the states to agree on anything! Surely the founders knew this.
And this provides the reasoned argument as to why the concept of implied powers could not have been in the thinking of the writers of the Constitution. Within the words of the Constitution are the instructions for creating and passing changes to the document. If powers were meant to be inferred and added to the government’s list of duties, why make the amendment process so specific and difficult? Clearly, the founders wanted Constitutional change to be an event that was rare and carefully considered. In his farewell address in 1796, Washington said, “If in the opinion of the People, the distribution of modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way the Constitution designates. But let there be no change by usurpation…”
There are still a few leaders today who understand this principle. Each year, Congressman John Shadegg of Arizona poses a bill to the United States Congress called the “Enumerated Powers Act”. Adoption of the bill would require that bills proposed to the Congress specifically list the constitutional authority on which the proposal is based. As might be expected, our leaders have not chosen to enact the law.
Thomas Jefferson wrote in 1823, “On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” While we witness the ever-increasing federal power grab over our individual liberties, these would be good words to heed.
Next article: What happened to my money when the Federal Reserve Act became law in 1913? Back to the main index article.
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