The Enumerated Powers of Congress
The remainder of section three through section seven deals with miscellaneous matters concerning apportionment, elections,
qualifications, compensation, vetoes, etc. The next significant section is Article I, Section eight which defines the limited,
enumerated powers of Congress. Section eight is the most controversial and misinterpreted part of the Constitution. It is
hated, feared and denied by progressives and other statists because it sounds the death knell to their aspirations for a socialist
utopian society.
Section Eight lists all the legislative powers delegated to Congress under the Constitution. The powers of Congress fall into
two categories, those for the common defense and those for the general welfare. They include the power to levy taxes,
borrow money and make laws necessary for carrying out the functions of government delegated to it by the Constitution.
The limitations placed on Congress by section eight, in conjunction with the Tenth Amendment are clear and unequivocal. In
spite of this, the three branches of government began immediately attempting to expand their respective powers by
circumventing the restrictions placed on them by the Constitution. These attempts have multiplied exponentially in modern
times.
Powers Granted For The General Welfare:
1. Levy taxes to carry out operations of government and implement its laws.
2. Borrow money on the credit of the United States
3. Regulate International and interstate commerce (trade)
4. Laws pertaining to naturalization
5. Bankruptcy laws
6. Coin Money, establish its value
7. Set standards for weights and measures
8. Establish penalty for counterfeiting
9. Establish Post Office and post roads
10. Issue patents and copyrights
11. Establish Federal Courts
12. Govern District of Columbia
13. Purchase real estate for necessary buildings
Powers Granted For the Common Defense:
14. Define and punish Maritime and international Crimes
15. Declare War
16. Make rules for, and fund Military Services
This list represents the sum total of the functions the federal government is constitutionally authorized to perform. The
Constitutional limits on the powers of Congress is further emphasized in Amendment Ten of the Bill of Rights.
The Tenth Amendment was added to the Constitution for two reasons; to clarify the limits imposed on the federal
government by the enumerated delegation of its powers, and to protect the states from infringement by the federal
government on their sovereignty. Yet, as early as 1825, during the administration of John Quincy Adams , Jefferson was
complaining to his friend William Giles, about the unconstitutional expansion of federal power.
Jefferson goes on caution his friend against resistance by force and encourages him to exercise patience until measures that
are more drastic become absolutely necessary.
Article I, Section 8: The Enumerated Powers
The introductory clause of Section Eight establishes the purposes for which the federal government is empowered to lay and
collect taxes; “To pay the debts” incurred by government and to “provide for the common defense and general welfare.”
The phrase “provide for the common defense and general welfare” does not denote separate or additional powers, it is simply
a broad description of the limited purposes for which the federal government is authorized to levy taxes.
However, the term “general welfare” is still the one most frequently used by politicians wishing to expand their powers
beyond those enumerated in Section Eight. Legislation passed by Congress concerning education, health care, the
environment, energy conservation, etc., are justified, all or in part, by the use of the phrase “provide for the general welfare”
found in this clause and in the Preamble. A study of its use by the founders makes it clear that in the Constitution and
elsewhere it is used only to define the purpose of a power, never as a separate power itself. It was used in the Preamble to
define one of the purposes of the Constitution. Here it is used to define one of the three broad purposes for which Congress
is empowered to levy taxes.
The meaning of the phrase was not debated during the Philadelphia Convention. In fact, it was used only three times in the
context of a debate. In each instance, it was used to define the purpose for which a particular power was proposed, never
as a distinct power itself. However, after the Convention and during the ratification debates it became a serious cause of
contention.
The anti-federalists, who seem to have had a more realistic view of human nature than the federalists, rightly foresaw that it
would be used as a loophole to pass legislation for purposes not delegated to the federal government by the Constitution.
James Madison attempted to lay this controversy to rest with Federalist Number 41.
Madison goes on, in the same document, to ridicule those who raised this objection.
This did not lay the controversy to rest, however. It came up again a few years later in the dispute between Alexander
Hamilton and Thomas Jefferson concerning the constitutionality of establishing a national bank. Jefferson in an opinion
requested by President George Washington on the bill to establish a bank, writes,
Treating the phrase “to provide for the general welfare” as a separate power delegated to Congress rather than describing the
purpose of powers that are delegated does not pass the logic test. As explained elsewhere, the purpose of a Constitution in a
republican form of government is to limit its powers. It is therefore illogical to suppose the Framers would insert a separate
unlimited power to pass any law it deemed to be for the general welfare. As both Jefferson and Madison pointed out above,
such a provision would render the entire Constitution irrelevant and unnecessary.
Legislators and others who use this phrase to justify passage of unconstitutional laws for purposes not included in the
enumerated powers delegated to Congress, are using it either to hide their own ignorance of the Constitution or in a deliberate
attempt to mislead the public.
This clause falls under the heading of general welfare, although the primary reason for borrowing money at the time, was to
pay for the cost of defense. Although not specified in the Constitution, the Founders subscribed to the philosophy that debts
should be paid by those incurring them. Thomas Jefferson believed it was immoral to take on public debt that could not be
repaid during the lifetime of the generation in which it was incurred. According to his formula, a generation consisted of a
period of nineteen years. The current policy of assuming debts that will fall on future generations would be roundly
condemned by all the Founding Fathers.
Jefferson discusses the immorality of perpetual debt several times in the Jefferson Papers. During the presidency of George
Washington, when James Madison was a member of Congress and Jefferson was the Secretary of State, Jefferson wrote
concerning public debt…
In a letter to John Wayles Eppes, written in 1813, during the Presidential term of James Madison concerning borrowing to
finance the war of 1812, Jefferson writes.
The remainder of section three through section seven deals with miscellaneous matters concerning apportionment, elections,
qualifications, compensation, vetoes, etc. The next significant section is Article I, Section eight which defines the limited,
enumerated powers of Congress. Section eight is the most controversial and misinterpreted part of the Constitution. It is
hated, feared and denied by progressives and other statists because it sounds the death knell to their aspirations for a socialist
utopian society.
Section Eight lists all the legislative powers delegated to Congress under the Constitution. The powers of Congress fall into
two categories, those for the common defense and those for the general welfare. They include the power to levy taxes,
borrow money and make laws necessary for carrying out the functions of government delegated to it by the Constitution.
The limitations placed on Congress by section eight, in conjunction with the Tenth Amendment are clear and unequivocal. In
spite of this, the three branches of government began immediately attempting to expand their respective powers by
circumventing the restrictions placed on them by the Constitution. These attempts have multiplied exponentially in modern
times.
Powers Granted For The General Welfare:
1. Levy taxes to carry out operations of government and implement its laws.
2. Borrow money on the credit of the United States
3. Regulate International and interstate commerce (trade)
4. Laws pertaining to naturalization
5. Bankruptcy laws
6. Coin Money, establish its value
7. Set standards for weights and measures
8. Establish penalty for counterfeiting
9. Establish Post Office and post roads
10. Issue patents and copyrights
11. Establish Federal Courts
12. Govern District of Columbia
13. Purchase real estate for necessary buildings
Powers Granted For the Common Defense:
14. Define and punish Maritime and international Crimes
15. Declare War
16. Make rules for, and fund Military Services
This list represents the sum total of the functions the federal government is constitutionally authorized to perform. The
Constitutional limits on the powers of Congress is further emphasized in Amendment Ten of the Bill of Rights.
- “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.”
~Amendment 10, U.S. Constitution
The Tenth Amendment was added to the Constitution for two reasons; to clarify the limits imposed on the federal
government by the enumerated delegation of its powers, and to protect the states from infringement by the federal
government on their sovereignty. Yet, as early as 1825, during the administration of John Quincy Adams , Jefferson was
complaining to his friend William Giles, about the unconstitutional expansion of federal power.
- “…I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our
government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in
itself of all powers, foreign and domestic; and that too, by constructions which, if legitimate, leave no limits to their
power.”
“Take together the decisions of the federal court, the doctrines of the President, and the misconstructions of the
constitutional compact acted on by the legislature of the federal branch, and it is but too evident, that the three
ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers
reserved by them, and to exercise themselves all functions, foreign and domestic.”
“Under the power to regulate commerce, they assume indefinitely that also over agriculture and manufactures, and
call it regulation to take the earnings of one of these branches of industry, and that too the most depressed, and put
them into the pockets of the other, the most flourishing of all. Under the authority to establish post-roads, they claim
that of cutting down mountains for the construction of roads, of digging canals, and aided by a little sophistry on the
words 'general welfare,' a right to do, not only the acts to effect that, which are specifically enumerated and
permitted, but whatsoever they shall think or pretend will be for the general welfare.”
“And what is our resource for the preservation of the constitution? Reason and argument? You might as well reason
and argue with the marble columns encircling them. The representatives chosen by ourselves? They are joined in the
combination, some from incorrect views of government, some from corrupt ones, sufficient, voting together, to
outnumber the sound parts; and with majorities only of one, two, or three, bold enough to go forward in defiance…”
Jefferson goes on caution his friend against resistance by force and encourages him to exercise patience until measures that
are more drastic become absolutely necessary.
- “…Are we then to stand to our arms, with the hot-headed Georgian? No. That must be the last resource, not to be
thought of until much longer and greater sufferings. If every infraction of a compact of so many parties is to be
resisted at once, as a dissolution of it, none can ever be formed which would last one year. We must have patience
and longer endurance then with our brethren while under delusion; give them time for reflection and experience of
consequences; …and separate from our companions only when the sole alternatives left, are the dissolution of our
Union with them, or submission to a government without limitation of powers.
Between these two evils, when we must make a choice, there can be no hesitation. But in the mean while, the States
should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most
peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as
acknowledgments or precedents of right, but as a temporary yielding to the lesser evil, until their accumulation shall
overweigh that of separation….”
~ Thomas Jefferson to William Giles, December 26, 1825
Article I, Section 8: The Enumerated Powers
Article 1.8.1 The Congress shall have Power to Lay and Collect Taxes, Duties, Imposts and Excises, to pay the Debts
and provide for the Common Defense and General Welfare of the United States; but all Duties, Imposts and Excises
shall be uniform throughout the United States.
The introductory clause of Section Eight establishes the purposes for which the federal government is empowered to lay and
collect taxes; “To pay the debts” incurred by government and to “provide for the common defense and general welfare.”
The phrase “provide for the common defense and general welfare” does not denote separate or additional powers, it is simply
a broad description of the limited purposes for which the federal government is authorized to levy taxes.
However, the term “general welfare” is still the one most frequently used by politicians wishing to expand their powers
beyond those enumerated in Section Eight. Legislation passed by Congress concerning education, health care, the
environment, energy conservation, etc., are justified, all or in part, by the use of the phrase “provide for the general welfare”
found in this clause and in the Preamble. A study of its use by the founders makes it clear that in the Constitution and
elsewhere it is used only to define the purpose of a power, never as a separate power itself. It was used in the Preamble to
define one of the purposes of the Constitution. Here it is used to define one of the three broad purposes for which Congress
is empowered to levy taxes.
The meaning of the phrase was not debated during the Philadelphia Convention. In fact, it was used only three times in the
context of a debate. In each instance, it was used to define the purpose for which a particular power was proposed, never
as a distinct power itself. However, after the Convention and during the ratification debates it became a serious cause of
contention.
The anti-federalists, who seem to have had a more realistic view of human nature than the federalists, rightly foresaw that it
would be used as a loophole to pass legislation for purposes not delegated to the federal government by the Constitution.
James Madison attempted to lay this controversy to rest with Federalist Number 41.
- “…It has been urged and echoed, that the power ’to lay and collect taxes, duties, imposts, and excises, to pay the
debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited
commission to exercise every power which may be alleged necessary for the common defense or general welfare…”
Madison goes on, in the same document, to ridicule those who raised this objection.
- “…No stronger proof could be given of the distress under which these writers labor for objection, than their
stooping to such misconstruction…” “…But what color can the objection have, when a specification of the objects
alluded to by these general terms immediately follows, and is not even separated by a stronger pause than a
semicolon?”…. “For what purpose could the enumeration of particular powers be inserted, if these and all others
were meant to be included in the preceding general power?”
This did not lay the controversy to rest, however. It came up again a few years later in the dispute between Alexander
Hamilton and Thomas Jefferson concerning the constitutionality of establishing a national bank. Jefferson in an opinion
requested by President George Washington on the bill to establish a bank, writes,
- “…The incorporation of a bank, and other powers assumed by this bill have not, in my opinion, been delegated to
the U.S. by the Constitution…nor are they within any of the general phrases…”
“…To lay taxes to provide for the general welfare of the U.S.” that is to say ‘to lay taxes for the purpose of
providing for the general welfare‘.” “For the laying of taxes is the power and the general welfare the purpose for
which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay
the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide
for the general welfare, but only to lay taxes for that purpose.”
“To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent
power to do any act they please, which might be for the good of the Union, would render all the preceding and
subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that
of instituting a Congress with power to do whatever would be for the good of the U.S. and as they would be the sole
judges of the good or evil, it would be also a power to do whatever evil they pleased…”
Treating the phrase “to provide for the general welfare” as a separate power delegated to Congress rather than describing the
purpose of powers that are delegated does not pass the logic test. As explained elsewhere, the purpose of a Constitution in a
republican form of government is to limit its powers. It is therefore illogical to suppose the Framers would insert a separate
unlimited power to pass any law it deemed to be for the general welfare. As both Jefferson and Madison pointed out above,
such a provision would render the entire Constitution irrelevant and unnecessary.
Legislators and others who use this phrase to justify passage of unconstitutional laws for purposes not included in the
enumerated powers delegated to Congress, are using it either to hide their own ignorance of the Constitution or in a deliberate
attempt to mislead the public.
- Article 1.8.2: To borrow Money on the credit of the United States;
This clause falls under the heading of general welfare, although the primary reason for borrowing money at the time, was to
pay for the cost of defense. Although not specified in the Constitution, the Founders subscribed to the philosophy that debts
should be paid by those incurring them. Thomas Jefferson believed it was immoral to take on public debt that could not be
repaid during the lifetime of the generation in which it was incurred. According to his formula, a generation consisted of a
period of nineteen years. The current policy of assuming debts that will fall on future generations would be roundly
condemned by all the Founding Fathers.
Jefferson discusses the immorality of perpetual debt several times in the Jefferson Papers. During the presidency of George
Washington, when James Madison was a member of Congress and Jefferson was the Secretary of State, Jefferson wrote
concerning public debt…
- “…Then I say, the earth belongs to each of these generations during its course, fully and in its own right. The second
generation receives it clear of the debts and encumbrances of the first, the third of the second, and so on. For if the
first could charge it with a debt, then the earth would belong to the dead and not to the living generation. Then, no
generation can contract debts greater than may be paid during the course of its own existence…”
“…The conclusion then, is, that neither the representatives of a nation, nor the whole nation itself assembled, can
validly engage debts beyond what they may pay in their own time…”
~Thomas Jefferson to James Madison, 1789
In a letter to John Wayles Eppes, written in 1813, during the Presidential term of James Madison concerning borrowing to
finance the war of 1812, Jefferson writes.
- “The term of redemption must be moderate, and at any rate within the limits of [the government’s] rightful powers.
But what limits, it will be asked does this prescribe to their powers? What is to hinder them from creating a perpetual
debt? The laws of nature, I answer. The earth belongs to the living, not to the dead. The will and the power of man
expire with his life, by nature’s law…
“We acknowledge that our children are born free; that that freedom is the gift of nature, and not of him who begot
them…”
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E-mail address
jfm@illinoisconservative.com
jfm@illinoisconservative.com
| Philosophy of Evil Socialism in America "The struggle of History is not between the bourgeoisie and the proletariat; it is between government and the governed." Jerry McDaniel |
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