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| | 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. | | 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. |
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| | + | == "Enumerated" Powers == |
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| | + | 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. |
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| | + | 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''. |
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| | + | 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, § 8, cls. 5, 7, 12. |
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| | + | 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. |
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| | + | As recently as 2012, Chief Justice John Roberts emphasized these limits on the power of the national government, in his decision for the Court which upheld the constitutionality of the Patient Protection and Affordable Care Act (better known as "ObamaCare"):<ref>''Nat'l Fed'n of Indep. Bus. v. Sebelius'', 132 S. Ct. 2566, 2577-78 (2012).</ref> |
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| | + | {{cquote}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. |
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| | + | 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. See, e.g., United States v.Comstock, 560 U.S. 126, 130 S. Ct. 1949, 176 L. Ed. 2d 878 (2010). |
| | + | 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.” See, e.g., United States v. Morrison, 529 U.S. 598, 618-619, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000).}} |
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| | + | In Federalist (Paper) No. 45, James Madison explained the importance of a limited national government, so that much power could remain at the local level: |
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| | + | {{cquote|in the ordinary course of affairs, concern the lives, liberties, and properties of the people” were held by governments more local and more accountable than a distant federal bureaucracy.}} |
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| | + | 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 lacks 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:<ref>''Bond v. United States'', 131 S. Ct. 2355, 2364 (2011).</ref> |
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| | + | {{cquote|By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”}} |
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| | == The most important provision? == | | == The most important provision? == |