Monday, September 18, 2006


Enumerated Powers v. The Bill of Rights

In a Constitutional Democracy, the government is set up pursuant to a written document which supercedes everything else in the law. This document is the Constitution and our government derives its legitimacy and power to act from that document and only from that document. The United States Constitution sets up a government of limited and specifically enumerated powers. All of the communities in the United States elected certain Constitutional Delegates to attend a convention in Philadelphia in 1787 and to draft up this document.

Many people blithely think that the United States federal government can enact any law it pleases upon any subject it wants. But this is not the case. Whenever the government takes an action, the source of the power must be traced to some part of the Constitution giving the government the power to take that action.

For instance, if the Congress passes a law building a highway between Washington D.C. and Philadelphia, Pennsylvania, there must be a clause of the Constitution under which it has the power to do this (in this case, the Interstate Commerce Clause will suffice). If the Congress wishes to pass a new military budget, it can cite to the Clause in the Constitution enabling the government to raise and equip an army and a navy for the national defense.

The Constitution also gives Congress the power to set up Courts inferior to the U.S. Supreme Court, and to limit the Appellate jurisdiction of the Supreme Court. The Congress promptly passed, pursuant to this clause, the Judiciary Act of 1789 which defined a great many of the U.S. Supreme Court’s powers.

There were those who argued against the ratification of the Constitution by saying that the Constitution did not provide enough protections for individual liberty. Those persons wanted a Bill of Rights, a list of things that the government cannot do to its citizens. But what is lost in all of this is that those wanting protections for liberty from this strong central government which was being built by the Constitution were divided into two camps. One group advocated the concept of enumerated powers as the foremost protection of an individual’s liberty interests. Others wanted the protection of a Bill of Rights.

The Enumerated Powers advocates argued that if the Constitution is a document which enumerates the powers of the federal government, then it stands to reason that any government the Constitution puts together can only do what the Constitution specifically allows it to do. Thus, if the Congress wishes to pass a law making it illegal to worship Islam, the opponents of that law need only go to the courts and argue that there is no enumerated power in the Constitution allowing Congress to govern any area of religion.

Fifty five mile per hour speed limit on the highway? That’s fine under the Interstate Commerce Clause. But outlawing a type of religion? There’s no clause in the Constitution giving Congress the power to do that.

Why is the concept of Enumerated Powers important? Because it is the best guarantee of our freedoms. It limits what the goverment can and can't do, and limited government (after the experience of live under the rule of the Crown and the Parliament) was what the Framers of our Constitution were all about.

So what was the best way to limit government? Was it to enumerate the government's powers and leave it at that, or to put in a specific list of things the government was not allowed to do (like, let's say, the Bill of Rights)?

The Bill of Rights advocates said that the protection flowing from enumeration wasn’t specific enough. They argued that there were certain freedoms (like religion) that were so important that they deserved a specific mention of protection in the Constitution.

The Enumerated Powers crowd were aghast. Any mention of specific things that the federal government could not do implied that anything not prohibited was permitted. Thus if the Congress wanted to pass a law banning smoking in the United States, so long as there was no Amendment against such an action, it could do so. Never mind that there was no Interstate Smoking Clause in the Constitution which would give the Congress that power.

The Enumerated Powers advocates argued that you were freer if you lived in a society in which government could only do a few listed things, because the things you list will always be fewer than the things you don’t list.

But the Bill of Rights Crowd carried the day, and thus we have the first 10 amendments to the Constitution which became known now as the “Bill of Rights.”

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