American Government and the Constitution Lecture Two

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American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12

Yesterday, September 17th, was "Constitution Day," in recognition of how the Constitution was completed and signed on September 17, 1787. The last words of the Constitution, after Article VII and just above the signatures, are these:

Done in convention by the unanimous consent of the states present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty seven and of the independence of the United States of America the twelfth.

In witness whereof We have hereunto subscribed our Names,

G. Washington-Presidt. and deputy from Virginia ...

Notice that George Washington was signing as President ("Presidt") of the Constitutional Convention, not of the United States. He could not become President of the United States until after the Constitution was ratified by at least nine StaTes, as required by Article VII. The Articles of Confederation, which is what was in place when the Constitution was drafted, did not establish an office of President.

"Enumerated" Powers

It is always important to remember that the Constitution establishes a national (federal) government of only "enumerated" powers. The national government is limited by the Constitution in what it may do. All other power remains in the hands of the States and the people.

A famous early U.S. Supreme Court decision explained that “the question respecting the extent of the powers actually granted” to the national government in D.C. “is perpetually arising, and will probably continue to arise, as long as our system shall exist.” McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 405 (1819). Chief Justice John Marshall, who presided over the Supreme Court for about 35 years early in our nation's history, mentioned in that decision that the national government “is acknowledged by all to be one of enumerated powers.” Id.

The Constitution specifically lists what the national government, through the U.S. Congress may properly do. Examples include the power of the Congress to “coin Money,” “establish Post Offices,” and “raise and support Armies.” U.S. Const. Art. I, Sec. 8, cls. 5, 7, 12.

What is not listed in the Constitution, Congress does not have the power to do. The national (federal) government “can exercise only the powers granted to it,” as Chief Justice Marshall explained in writing for the Supreme Court in the McCulloch decision.

As recently as 2012, Chief Justice John Roberts emphasized these inherent limits on the power of the national government, which exist independent of the Bill of Rights, in the Supreme Court decision that upheld the constitutionality of the Patient Protection and Affordable Care Act (better known as "ObamaCare"):[1]

Today, the restrictions on government power foremost in many Americans' minds are likely to be affirmative prohibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.

Indeed, the Constitution did not initially include a Bill of Rights at least partly [2578] because the Framers felt the enumeration of powers sufficed to restrain the Government. As Alexander Hamilton put it, “the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” The Federalist No. 84, p. 515 (C. Rossiter ed. 1961). And when the Bill of Rights was ratified, it made express what the enumeration of powers necessarily implied: “The powers not delegated to the United States by the Constitution ... are reserved to the States respectively, or to the people.” U.S. Const., Amdt. 10. The Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions.

The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments--as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and do perform many of the vital functions of modern government--punishing street crime, running public schools, and zoning property for development, to name but a few--even though the Constitution's text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the 'police power.'

In Federalist (Paper) No. 45, James Madison explained the importance of a limited national government, so that much power would remain at the local level.

Thus, under the Constitution, no governmental authority has complete power over the people. The three branches of the federal government are checks and balances against each other, and overall the federal government has to share power with state governments. Issues like local police authority and education are historically within the exclusive domain of state and local government, and beyond the power of the federal (national) government. In a court decision rendered in 2011, the U.S. Supreme Court affirmed this basic concept of the Constitution:[2]

By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.

The most important provision in the entire Constitution?

In our last Lecture we discussed the Preamble (We the People of the United States, in Order to form a more perfect Union ...."). It is beautiful to read, but courts have construed it not to have any legally binding effect. The Preamble is merely "window-dressing", and does not establish any rights of the people, or any powers of government. It is a very eloquent introduction to the document, but does not create any rights, or establish or limit any governmental powers.

Beyonnd the 52 words of the Preamble, what is the most important provision of the Constitution itself? The winner might be the very next sentence, Article I, Section 1, which states:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Only 25 words long, this Article I, Section 1 is perhaps the single most important provision in the entire Constitution. It is known as the "Bicameral Clause," because it establishes two chambers of Congress as the federal legislature. It is the result of the "Great Compromise" between the big and small States at the Constitutional Convention. The big states have more power in the House of Representatives, because there are more people in the big States and the number of representatives in the House is based on population. The small states have equal power in the Senate, because every State has exactly two representatives there, no matter how big or small the State is.

Notice also that this initial section of Article I states that "All legislative powers herein granted shall be vested in a Congress ...." (emphasis added). Congress has only the powers that are granted to it by the Constitution, and no more. The federal (national) government created by the Constitution is one of "limited powers," or "enumerated (listed) powers," as explained above. Congress does not have unlimited or general powers. This is one of the marvelous aspects of the Constitution: it creates a government of limited powers, as a safeguard against tyranny.

Article I

Article I is the first and most important Article in the Constitution, because it establishes and limits the legislative power of the national (federal) government. The "and limits" is often forgotten by the public. Anything that Congress does beyond the powers granted to it by the Constitution is invalid, and unconstitutional.

Congress cannot pass a law unless the law is authorized by one of the clauses in Article I of the Constitution. For example, Congress cannot establish a local federal police force in anyone's town. Congress does not have that power under the Constitution.

When Congress occasionally passes a law outside of its powers under Article I, then the Supreme Court usually declares the law to be invalid and unenforceable.

Each of the grants of power to Congress under Article I is identified by a separate name, such as the "War Powers Clause" and the "Coinage Clause." Every federal law that is in effect today -- and there are probably hundreds of thousands of them -- is based on one or more of the grants of power to Congress in Article I. There are so many federal laws which has been enacted since 1789 that the Library of Congress says it is impossible to count them all:[3]

At the reference desk, we are frequently asked to estimate the number of federal laws in force. However, trying to tally this number is nearly impossible.

But each and every law must be based on a provision in Article I authorizing it, or else the law is unconstitutional. The following subsections explain some of the most important provisions in Article I which authorize laws or other congressional action. A terrific free resource for each clause in the Constitution is provided by the Heritage Foundation, and its link is in this footnote.[4]

Commerce Clause

The Commerce Clause grants to Congress the power:

to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

This is Article 1, Section 8, clause 3, and it is one of the most important clauses in all of the Constitution. In Federalist (Paper) No. 45, James Madison stated that that the Commerce Clause was “an addition which few oppose and from which no apprehensions are entertained.”

Much, perhaps even most, of what Congress passes as laws are based on the Commerce Clause, because "commerce" is considered to include any activity that has any kind of financial or economic impact. Simply put, "commerce" is almost everything, and Congress can pass laws to regulate it if the activity has an interstate impact (an effect on people in more than one state).

The famous U.S. Supreme Court case of Wickard v. Filburn (1942) extended the scope of the Commerce Clause to allow Congress to limit how much wheat a man may grow on his own property for himself. How did that affect "commerce ... among the several States"? According to the Supreme Court, the farmer's growing of wheat on his own land, for his own use, enabled him to avoid buying wheat in the market, and that affected the overall price of wheat in interstate commerce. Price, after all, is the result of supply and demand, and the farmer reduced the interstate demand for wheat by growing his own, and that affected the interstate price (ever so slightly). That effect on interstate commerce was enough for Congress to have the power to limit how much wheat someone can grow on his own land!

But starting in 1995, the Supreme Court began to limit, albeit slightly, the very broad power under the Commerce Clause, beginning with its decision in United States v. Lopez (1995). Congress had passed a law prohibiting the possession of firearms (guns) within 1,000 feet of schools. Congress enacted this law as part of a gun control agenda, supposedly to reduce gun violence near schools. (Actually, many studies have shown that there is less crime when there is more possession of guns, because guns are most often used for defensive purposes.)

A high school senior in San Antonio, Texas, was caught possessing a gun, and he was prosecuted under this federal law passed by Congress. His defense in court was that the law is unconstitutional because it goes beyond the "enumerated" powers of Congress. Nothing in the Constitution gives Congress the power to enact gun control. Congress based its law on the Commerce Clause. Congress said that gun violence affects interstate commerce, and thus Congress could pass a law to reduce gun violence. Under the view of Congress, its law prohibiting gun possession within 1,000 feet of a school was constitutional and enforceable.

By a 5-4 decision of the U.S. Supreme Court (it has 9 Justices overall), the student won. The Court ruled that Congress had exceeded its authority under the Commerce Clause by banning guns near schools. Although the Commerce Clause has long been interpreted extremely broadly, Congress overstepped its power this time and the law was invalid. The student could not be prosecuted by the federal government for violating this invalid federal law. This decision halted the expansion in use of the Commerce Clause.

"Dormant" Commerce Clause

The “dormant” Commerce Clause is implied by the Commerce Clause, by prohibiting states from enacting laws that interfere with interstate commerce even when Congress is silent about it. For example, states have traditionally not been allowed to impose taxes on goods or services provided from within one state to a buyer in another state, unless allowed by Congress to pass those laws.

It is the "dormant" Commerce Clause that has kept the internet from being regulated and disrupted by state laws. Most internet traffic travels among multiple states, and only Congress has the authority to regulate that interstate "traffic".

Copyright and Patent Clause

Without much discussion, the Framers of the Constitution inserted this clause to protect authors (with copyright) and inventors (with patents):

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The citation for the above Copyright and Patent Clause is "U.S. Const. Art. I, §8, cl. 8" - which means the United States Constitution at Article I, section 8, clause 8.

In 1787, when the Constitution was written, the word "science" meant generalized learning, such as natural philosophy. The word did not have the connotation of technology or inventions that the word has today. The "Progress of Science" meant new books and other creations of authors; the "useful Arts" meant inventions.

The Patent Act of 1790 provides that a person who has "invented or discovered any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used" may be awarded a patent, which is the exclusive right to use his invention for a period of time, which is 20 years under patent law today. That means he can earn royalties for 20 years by charging fees to others who want to use his invention. Many inventors, such as Thomas Edison and Alexander Graham Bell, created enormous wealth for the United States and themselves this way.

Necessary and Proper Clause

The Necessary and Proper Clause, unofficially known as the Elastic Clause because it can stretch and stretch almost as broadly as anyone wants, has been used to expand the power of the federal (national) government. If Congress passes a law that might be based in one of its enumerated powers, then the "Necessary and Proper Clause" will give Congress the "benefit of the doubt" and allow it do what it wants. This Clause is located in Article I, Section 8, clause 18 of the Constitution. giving Congress the power:

to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof

Critics complain that the Necessary and Proper Clause is used improperly to expand the power of the federal government far more broadly than the Framers ever intended. For example, there are many federal laws are passed each that create new federal crimes, even though the Constitution only allowed the federal government to prosecute a few narrow categories of crimes, such as treason. Today far more cases in federal court are criminal cases rather than non-criminal (civil) ones. The Framers would be shocked by how much of a "policeman" the federal government has become today.

War Powers Clause

Some would consider the most important enumerated power of Congress to be the War Powers Clause, which gives Congress -- and only Congress -- the power to declare war. See U.S. Const. Art. I, Sec. 8, cl. 11.

Despite what the Constitution says is the sole responsibility of Congress, during the second half of the 1900s and the first part of the 21st century presidents have repeatedly started wars without obtaining a declaration of war by Congress. Examples include the Korean War, the Vietnam War, Operation Desert Storm, the War in Afghanistan that began in 2001 (and is still continuing) and War in Iraq in 2002.

In some of those cases the President has sought an authorization from Congress to use military force, without a declaration of war. Just this week, for example, President Obama obtained from the House of Representatives a vote in favor of arming certain groups in Syria.

Origination Clause

An example of the influence of England on the Constitution is the Origination Clause, which is Article I, Section 7, clause 1:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The Origination Clause is a safeguard against overreaching federal power, by ensuring that only the representatives most accountable to the people – the more frequently elected House of Representatives – would control the purse strings.

The Origination Clause embodies the essential principle of political accountability, which has been valued highly before, during and after the Constitutional Convention in 1787. Prior to the Constitutional Convention a majority of the states had versions of the Origination Clause in their own state constitutions, to guarantee that revenue-raising measures could originate only from representatives who are the most accountable to the people.[5] Scholars have traced the history of the Origination Clause back even earlier to the British Parliament in the 1600s, where new taxes could originate only in the House of Commons and not in the House of Lords, and the roots of this basic liberty extend all the way back to the Magna Carta itself.[6]

Even today many state constitutions continue to have origination clauses in order to maximize political accountability for those who initiate new taxes.[7]

One Framer, the future Vice President Elbridge Gerry of Massachusetts, insisted during the Constitutional Convention on inclusion of the Origination Clause in the U.S. Constitution, in order to “restrain the Senatorial branch from originating money bills."[8] The Senate is less representative and less accountable to the people than members of the House of Representatives are, and thus less restrained by the people against raising new revenue from them.

Madison’s notes from the Constitutional Convention set forth in detail the discussions about the Origination Clause, and confirm how important it was to the delegates. Madison observed that it was the view of the Framer George Mason, who was one of the strongest opponents of a powerful new federal government, that prevailed at the Convention in order to limit the power of the Senate:[9]

The consideration which weighted with the Committee was that the 1st branch would be the immediate representatives of the people, the 2nd would not. Should the latter have the power of giving away the peoples money, they might soon forget the source from whence they received it. We might soon have an Aristocracy.

Multiple delegates to the Constitutional Convention, including Elbridge Gerry, John Dickenson and Edmund Randolph, felt that ratification of the new Constitution would be in jeopardy if this essential limitation on the origination of revenue-raising bills were not included.[10] By an overwhelming vote of 9-2, the appropriate Committee approved the provision that "All bills for raising revenue shall originate in the House of Representatives," with only the small states of Maryland and Delaware in dissent.[11]

James Madison became an enthusiastic supporter of the Origination Clause during the ratification process. As Madison wrote anonymously in Federalist No. 58 in order to promote ratification of the Constitution:

The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of the government. … This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect, ever just and salutary measure.

Today there are pending lawsuits challenging the constitutionality of ObamaCare (the Patient Protection and Affordable Care Act) based on the Origination Clause.

Overriding a Veto

After World War II, in 1946, strikes by unions were ravaging the United States. President Truman had caved into communist Josef Stalin in the post-War negotiations, giving Stalin everything he wanted in Eastern Europe. Many feared communist infiltration of labor unions in the United States, and the devastating work stoppages hurt the economy and alarmed the public.

No year in American history had as many labor strikes, affecting so many industries, as occurred in 1946. A newspaper named the Evansville Courier, for example, observed that a coal strike in 1946 was "the most momentous event in the country's peacetime history."

Historians refer to this as the "Great Strike Wave of 1946," or sometimes late 1945 is also included, because the strikes began almost as soon as World War II ended in August 1945. In 1946, there was a total of 4,985 strikes, which involved 4.6 million workers for a grand total of 116 million workdays.

The American public was outraged by this, and punished the Democrats on Election Day in November 1946 by electing many Republicans in a landslide to Congress. It was not a presidential election year, so Democrat Harry Truman remained the president. But Republicans obtained large majorities in the House of Representatives (the "House") and the Senate, and immediately began thinking of ways to curb the power of unions.

The result was the passage in the House and Senate of the Taft-Hartley Act, in 1947. This law required an oath swearing not to be a communist to be taken by the leaders of unions, and this law established the right of states to become "right to work" states prohibiting unions from forcing all the workers at a company to join a union in order to work there. (Most southern states are "right to work" states today; New Jersey is not, which means that unions are still very powerful in New Jersey.)

Then President Harry Truman, a Democrat, vetoed the legislation, as a president has the power to do under the Constitution.

The Republican Congress next exercised its power under the Constitution to override the veto, by a 2/3rds majority in both the House of Representatives and the Senate, to enact the law. As a result, the Taft-Hartley Act has remained in effect with good results ever since.

Not a Democracy

The Framers were very much against creating a democracy. The debate was between creating a republic and creating a monarchy. None of the Framers wanted a democracy, or rule by the masses.

James Madison wrote in Federalist No. 10:

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

Separation of Powers

If it became necessary to summarize the Constitution in merely three words, they would be "separation of powers." That is the greatest, and most basic, principle of the United States Constitution, and what makes it different from a parliamentary system of government that reigns in most other western nations.

The three branches of the federal government -- legislative, executive, and judicial -- are required to act independently of each other, and expected to limit growth in power by each other. Some credit for this concept is given to the French political philosopher Baron de Montesquieu.

Numerous statements by the Framers, both in the Federalist Papers (by Alexander Hamilton and James Madison) and other documents, emphasized how strict the separation of powers should be. For example, Alexander Hamilton wrote in Federalist No. 71:

The same rule that teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other.

What does the separation of powers mean in practice? One meaning is that the President is not allowed to change a law passed by Congress. The President, and the entire Executive Branch, has only the power to "execute" (enforce) the laws faithfully based on what Congress passed.


Answer the first five questions, and then one of the remaining two questions below:

1. Identify and list the eight most important powers of Congress, in your opinion.

2. Which enumerated power of Congress is most important in your view, and which is least important? Explain.

3. Suppose Congress passed a law prohibiting homeschooling, and you were asked to challenge the constitutionality of that law. What arguments would you use? Which provision of the Constitution do you think Congress would cite in order to try to justify its law?

4. In the long quotation in the "Enumerated" Powers section above from Chief Justice John Roberts, who was writing for the Supreme Court in the ObamaCare case, he explained why the Framers did not originally include the Bill of Rights. Why was that, and were the Framers right to omit the Bill of Rights? Please discuss your view.

5. Reread the "not a democracy" quote by James Madison above, and explain why and how our system of government is not a democracy. Should it be a democracy?

6. Discuss one of the clauses explained above in this lecture (such as the Origination Clause, Commerce Clause or War Powers Clause), including how broadly you would interpret it.

7. ObamaCare, as passed by Congress and signed into law by the President in 2010, requires large employers to share some of the costs of health insurance along with individuals. In 2013, however, the Department of Treasury said that large employers did not have to bear any costs of ObamaCare in 2014, but individuals still must comply and pay the costs. Which branch of government is the Department of Treasury in, and do you think it was constitutional for it to shift the costs of ObamaCare entirely onto individuals? Explain.


Answer any two out of three below:

8. What limits, if any, would you place on the Commerce Clause?

9. What do you think of the Patent and Copyright Clause, and what law would you support to be passed under it?

10. Explain how an override of a veto works, including a citation to the provision of the Constitution that authorizes it, and what your view of that is. (A little research beyond the lecture is required to provide the actual provision and citation to it.)


  1. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2577-78 (2012) (omitting the case citations within the quotation).
  2. Bond v. United States, 131 S. Ct. 2355, 2364 (2011).
  5. See Priscilla H.M. Zotti and Nicholas M. Schmitz, “The Origination Clause: Meaning, Precedent and Theory from the 12th to 20th Century,” 3 BRITISH JOURNAL OF AMERICAN LEGAL STUDIES 71, 91 Table 1 (Spring 2014).
  6. See id. 77-78.
  7. See, e.g., LA. CONST. art. III, § 16(B) (“Origin in House of Representatives. All bills for raising revenue or appropriating money shall originate in the House of Representatives, but the Senate may propose or concur in amendments, as in other bills.”).
  8. James Madison, NOTES ON DEBATES IN THE FEDERAL CONVENTION OF 1787, 35-38 (New York, Norton & Co. Inc. 1969) (May 29, 1787).
  9. 1 M. Farrand, The Records of the Federal Convention of 1787, 543 (notes for July 6, 1787) (Yale University Press: 1937) (statement by George Mason).
  10. See Zotti & Schmitz, at 97-98.
  11. See id. at 99.