Do You Know What The Enumerated Powers Are?

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“The powers not delegated [i.e., enumerated] to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Tenth Amendment of the Constitution

Enumerated powers are the particular powers granted to Congress (those which are specifically listed) in the US Constitution. There are seventeen such enumerated powers.

Article I, Section 8 lists the first fifteen powers enumerated to, or permissible for the federal government. Articles II-VII add no additional powers but define how to apply the powers enumerated in Article I.

For example, Article II identifies the president as Commander-in-Chief over the military, but this is not a new power since the Preamble already authorized the federal government “to provide for the common defense.” Likewise, the president’s Article II authority to “make treaties” and “appoint ambassadors” is part of the Article I provision “to regulate commerce with foreign nations.”

The Thirteenth and the Fourteenth Amendments to the Constitution added two additional federal powers. (But the other twenty-five Amendments to the Constitution added no federal powers.) With these two additional federal powers, the total number of constitutionally-authorized federal jurisdictions, or enumerated powers, is seventeen.

The Enumerated Powers Listed in the Constitution

The enumerated powers permissible to the federal government are:

1. To raise revenue to pay off debt, protect the nation, and fulfill the specific obligations established in the enumerated powers. (“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”)

2. “Borrow money on the credit of the United States.”

3. Protect the free-enterprise system and ensure free flow of commerce. (“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”)

4. Establish immigration laws and processes. (“To establish an uniform rule of naturalization”)

5. Establish the bankruptcy laws and processes. (“and uniform laws on the subject of bankruptcies throughout the United States”)

6. Establish national currency, monitor its supply and value, and punish counterfeiters of that currency. (“To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures” and “provide for the punishment of counterfeiting the securities and current coin of the United States”)

7. “Establish post offices and post roads.”

8. Protect the private property (including the ideas, and the product of those ideas) of inventors, authors, and artists. (“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”)

9. If Congress so wishes, create and regulate federal courts. (“To constitute tribunals inferior to the Supreme Court”)

10. To enforce international laws and prosecute offenses against it: “Define and punish piracies and felonies committed on the high seas, and offences against the law of nations.”

11. “Declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”

12. To provide funding for and establish the size and operation of a national military. (“To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces”)

13. To call forth and train state militias for national needs. (“To provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress”)

14. Oversee and manage all federal property, including Washington, DC, as well as bases, federal buildings, and so forth. (“To exercise exclusive legislation in all cases whatsoever over such District (not exceeding ten miles square) as may by cession of particular States and the acceptance of Congress become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings”)

15. “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other owners vested by this Constitution in the government of the United States, or in any department or officer thereof.”

16. To prevent slavery. (a power added by the Thirteenth Amendment)

17. To prevent states from violating individual constitutional freedoms and inalienable rights secured to every individual in the federal Constitution. (a power added by the Fourteenth Amendment)

Some Founding Fathers on Enumerated Powers

“The powers delegated [that is, enumerated] by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former [i.e., federal powers] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several states will extend to all the objects which in the ordinary course of affairs concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state. The operations of the federal government will be most extensive and important in times of war and danger; those of the state governments in times of peace and security.” James Madison¹

“The state governments may be regarded as constituent and essential parts of the federal government; whilst the latter [i.e., the federal] is no wise essential to the operation or organization of the former [i.e., the states].” James Madison²

(Warning what would eventually occur if Congress used the General Welfare Clause of the Constitution to become involved in more than its specifically enumerated powers):

“If Congress can apply money indefinitely to the ‘general welfare,’ and are the sole and supreme judges of the ‘general welfare,’ they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may undertake the regulation of all roads other than post roads. In short, everything, from the highest object of state legislation down to the most minute object of police would be thrown under the power of Congress, for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the ‘general welfare’.” James Madison³

“I consider the foundation of the Constitution as laid on this ground that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people’ [quoting the Tenth Amendment]. To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.” Thomas Jefferson⁴

“I am not a friend to a very energetic [activist] government. It is always oppressive.” Thomas Jefferson⁵

“What an augmentation [growth] of the field for jobbing, speculating, plundering, office-building, and office-hunting would be produced by an assumption of all the state powers into the hands of the [federal] government. The true theory of our Constitution is surely the wisest and best: that the States are independent as to everything within themselves, and united as to everything respecting foreign nations. Let the [federal] government be reduced to foreign concerns only.” Thomas Jefferson⁶

(The Founders did not list all the powers the state possessed, but rather listed the few that the federal government was allowed to perform; all other powers belonged to the states.)

“In forming a federal constitution, which ex vi termine, supposes state governments existing, and which is only to manage a few great national concerns, we often find it easier to enumerate particularly the powers to be delegated to the federal head than to enumerate particularly the individual rights to be reserved.” Richard Henry Lee⁷

“[The Tenth A]mendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the Constitution. Being an instrument of limited and enumerated powers, it follows irresistibly that what is not conferred, is withheld, and belongs to the state authorities.” Supreme Court Justice Joseph Story⁸

“What is to become of constitutions of government if they are to rest not upon the plain [meaning] of their words but upon conjectural enlargements and restrictions to suit the temporary passions and interests of the day? Let us never forget that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now and forever. They are of no man’s private interpretation. They are ordained by the will of the people and can be changed only by the sovereign command of the people.” Supreme Court Justice Joseph Story⁹

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Endnotes

¹ James Madison, No. XLV, The Federalist on the New Constitution Written in the Year 1788 (Washington, DC: Jacob Gideon, 1818), 292.

² Madison, No. XLV, The Federalist (1818), 290.

³ Madison, February 6, 1792, The Debates and Proceedings in the Congress of the United States (Washington, DC: Gales and Seaton, 1849), 2^nd Cong., 1^st Sess., 388.

⁴ Thomas Jefferson, “Opinion against the constitutionality of a National Bank,” February 15, 1791, The Writings of Thomas Jefferson, ed. H. A. Washington (Washington, DC: Taylor & Maury, 1854), VII:556.

⁵ Jefferson to Madison, December 20, 1787, Memoir, Correspondence, and Miscellanies from the Papers of Thomas Jefferson, ed. Thomas Jefferson Randolph (Charlottesville: F. Carr & Co., 1829), II:276.

⁶ Jefferson to Gideon Granger, August 13, 1800, Memoir, Correspondence, and Miscellanies, ed. Randolph (1829) III:437.

⁷ [Richard Henry Lee], “Letter XVI,” January 20, 1788, An Additional Number of Letters from the Federal Farmer to the Republican (1788), 143.

⁸ Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), III:752.

⁹ Story, Commentaries on the Constitution (1833), III:754

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