ENUMERATED POWERS are powers given to the federal government by the terms of the U.S. Constitution. The question whether the Constitution also should be understood to give the federal government unenumerated powers was the central issue in nineteenth century constitutional disputations. Under Article II of the Articles of Confederation, the Confederation Congress's powers were limited to those explicitly granted by that document. This limitation on the federal legislature's powers, when coupled with the extreme difficulty of changing a constitution whose amendment required the unanimous agreement of the thirteen states, stymied several nationalist initiatives in the period before the adoption of the Constitution.
The Philadelphia convention that drafted the U.S. Constitution in 1787 omitted any provision echoing Article II of the Articles of Confederation. However, several sections of the proposed constitution, particularly the list of congressional powers in Article I, section 8, gave the impression that the new federal government was to have only the powers it was expressly delegated. During the course of the ratification debates of 1787–1790, several Federalist spokesmen—most notably Governor Edmund Randolph of Virginia and Charles C. Pinckney of South Carolina—assured this principle would be followed.
When the new federal government was instituted, President George Washington found his cabinet sharply divided on the issue of unenumerated powers. Secretary of the Treasury Alexander Hamilton, who had joined with John Jay and others in offering a highly nationalist interpretation of the Constitution to the New York ratification convention, argued that both the Congress and the president could claim broad powers that, although not explicitly mentioned in the Constitution, naturally inhered in the legislative and executive branches. Secretary of State Thomas Jefferson, on the other hand, insisted on the reading of the constitution successfully offered by Attorney General Randolph in the Virginia ratification convention.
Constitution and the Bill of Rights are contradictory.
Article 6 Clause 2
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
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.
The "supremacy clause" is the most important guarantor of national union. It assures that the Constitution and federal laws and treaties take precedence over state law and bind all judges to adhere to that principle in their courts.
The Tenth Amendment states the Constitution's principle of federalism by providing that powers not granted to the federal government by the Constitution, nor prohibited to the States, are reserved to the States or the people.
See my dilemma? If the latter supersede the former then what’s the purpose of the former?
Washington, whose experience in the Revolution had convinced him of the necessity of Hamilton's program, sided with Hamilton. In the following decade, Chief Justice John Marshall authored a number of Supreme Court opinions endorsing the Hamiltonian-nationalist reading of the Constitution; the most important of these, Marbury v. Madison.
The Supreme Court's landmark decision on the issue of judicial review was Marbury v. Madison (1803), in which the Supreme Court ruled that the federal courts have the duty to review the constitutionality of acts of Congress and to declare them void when they are contrary to the Constitution. Marbury, written by Chief Justice John Marshall, was the first Supreme Court case to strike down an act of Congress as unconstitutional.
What was the case actually about?
Marbury v. Madison
The famous case arose from one of the most bitter presidential elections,
the election of 1800. The two parties — the Jeffersonian Republicans and the
Federalists — had attacked the character and the patriotism of the two leading
contenders, incumbent president John Adams and his Vice President and
one time friend, Thomas Jefferson. The issues were profound: the Alien and
Sedition Laws of 1798, conflicting theories of the Union and the Constitution,
a conflict between nationalism and states’ rights, and a conflict between
skeptical republicanism and a more democratic faith.
In 1800, the votes of the electoral college guaranteed that John Adams
would be turned out of office, but it took the votes of the House of
Representatives to elect Jefferson. In the days before Jefferson’s March 4
inauguration, the Federalists worked hard to preserve for themselves a place
in the national government. They did all they could to seize the judiciary. In
January, Adams appointed John Marshall to the office of Chief Justice while
Marshall continued to serve as Secretary of State. In the last month of Adams’
presidency, a lame-duck, Federalist Congress created judicial offices while
Adams cooperated with the party’s efforts to nominate and confirm as many
Federalist partisans to judicial posts as time allowed. In the last three days
before Jefferson’s inauguration the Senate confirmed Adams’ appointees. By
March 4, inauguration day, the Secretary of State — John Marshall — had
failed to deliver some of the judicial commissions. President Jefferson then
directed the new Secretary of State, James Madison, not to deliver the
commissions, including the commission of one William Marbury as Justice of
the Peace for the District of Columbia.
Marbury took his case to the Supreme Court of the United States.
Normally, the Supreme Court is an appellate body, but Marbury invoked the
Court’s “original jurisdiction.” This meant that Marbury was to have his trial
before the Chief Justice of the United States — John Marshall — the man
who, as Secretary of State, prepared most of the disputed commissions, even
while serving as Chief Justice. Among the witnesses offering testimony on
disputed facts — the existence of the commissions, the failure of delivery, and
the reasons for failure — was James Marshall, brother of the Chief Justice.
Never has such judicial greatness come from so petty a partisan squabble and
so obvious a conflict of interest.
While the case of William Marbury hibernated on the docket of John
Marshall’s Court for almost two years, Thomas Jefferson and his allies did all
they could to undermine the independent judiciary. The Jeffersonians sought
to repeal the legislation that had created many of the judicial positions
assumed by Federalists just before Adams left the presidency. The
Jeffersonians succeeded, and Congress passed the repeal act just before the
Marbury decision was announced. All believed that a conflict between the
two Virginians, President Jefferson and Chief Justice Marshall, was imminent.
When a unanimous Court decided Marbury v. Madison, the Court ruled that
it lacked jurisdiction. It sounds like an anticlimax. Court watchers had
expected the Chief Justice to order the Secretary of State to deliver the
commissions. He did not. Instead, Marshall ruled that the Court could not
order the Secretary to do his duty because the Court lacked jurisdiction to do
so. With this resolution, the Chief Justice carefully reached conclusions that
avoided conflict between the executive and judicial branches.
Marshall admitted that some duties entrusted to the chief executive are
political, and the decision of the President in the performance of such
functions is conclusive. But Marshall took an opportunity to wag his finger
at the President. The Chief Justice held the President in minimum high
regard. And so he could not resist the temptation to declare that the
President broke the law and violated Marbury’s rights, before he declared he
had no jurisdiction and, thus, no power in the case. Today, we might say that
the Chief Justice was full of dicta. Professor Robert McCloskey has offered
a more sophisticated view. Marbury was “a masterwork of indirection, a
brilliant example of Marshall’s capacity to sidestep danger while seeming to
court it, to advance in one direction while his opponents are looking in
another.” The Court was “in the delightful position . . . of rejecting and
assuming power in a single breath.”
To avoid conflict with the President — or, more precisely, to avoid giving
the President the opportunity to strike a fatal blow at the Supreme Court by disobeying its ruling — the Chief Justice manipulated the issues, or at least
many analysts so believe. Marshall examined the statute, which declared
that the Court could issue writs when it had jurisdiction, and presumed that the
statute increased the Court’s jurisdiction whenever someone asked for a writ.
Using this less-than-compelling interpretation of the statute to create an
unnecessary and unlikely constitutional issue, Marshall then interpreted the
vague words of Article III to hold that Congress could not add to the Court’s
Having found — or manufactured — a conflict between statute and
Constitution, the Chief Justice was ready to reach for the prize: the power to
define constitutional law. For, of course, the issue for which Marbury is
remembered is not whether the Supreme Court had jurisdiction in cases in
which a person sought a writ of mandamus. Rather, Marbury is remembered for a more fundamental, more indispensable issue: “whether an act, repugnant
to the constitution, can become the law of the land.
It has become fashionable to discount John Marshall’s case for judicial
review. At one time, admirers and critics of the Chief Justice described his
opinion as a coup, in all senses of the word: a usurpation and an
achievement, a foundation for constitutional nationalism and a bedrock of law in a democratic republic.
Thomas Jefferson did not like the concept of Judicial Review; He believed that it turned all the power over to a panel of judges with lifetime appointments, therefore no accountability to the people. In a case for Liberty, I think I would have to agree. Let’s just look at Roe v Wade. Most people at the time it was RULED upon didn’t think that it should be the law of the land and their elected official agreed. There was no legislation ever introduced to make it legal. A lawsuit was filed and RULED upon by the Supreme Court and basically wrote the legislation from the bench. (Personally I think that it should be legal but not as a form of contraception, therefore in a case of rape, incest and birth defects…….but birth defects for the quality of life for the baby not the parents.) Of course people will bring up slavery as the law of the land and it was bad law, a bad natural law. But it was being abolished through a sea change of mindset prior to the Civil War and the war was not about slavery.
Judicial review was being purposed and argued before the Constitution was ever ratified and therefore I believe the “intent” in the acquisition of power is established.
The most extensive discussion of judicial review was in Federalist No. 78, written by Alexander Hamilton, which clearly explained that the federal courts would have the power of judicial review. Hamilton stated that under the Constitution, the federal judiciary would have the power to declare laws unconstitutional. Hamilton asserted that this was appropriate because it would protect the people against abuse of power by Congress:
“ [T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental....
[A]ccordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former....
[T]he courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.
In Federalist No. 80, Hamilton rejected the idea that the power to decide the constitutionality of an act of Congress should lie with each of the states: "The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed." Consistent with the need for uniformity in interpretation of the Constitution, Hamilton explained in Federalist No. 82 that the Supreme Court has authority to hear appeals from the state courts in cases relating to the Constitution.
.The arguments against ratification by the Anti-Federalists agreed that the federal courts would have the power of judicial review, though the Anti-Federalists viewed this negatively. Robert Yates, writing under the pseudonym "Brutus", stated:
The judges under this constitution will control the legislature, for the supreme court are authorized in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. . . . The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void.
The United States Constitution does not explicitly establish the power of judicial review. Rather, the power of judicial review has been inferred from the structure, provisions, and history of the Constitution.
So how did the Federalist get around the fact that the supreme law of the land, the Constitution itself didn’t explicitly define the Supreme Courts role in deciding the constitutionally of the laws of the land……. by deceit……by ill intent. Ratify the constitution and then we will “interpret” what it “really “means after we have control. What was it Nancy Peliso said during the health care debate” We won’t know what’s in the Bill until we pass it”. Isn’t this how we ended up with the Federal Reserve? I am not willing to turn over my natural rights (including intelligential rights)over to this kind of nonsense.
From Reassessing the Presidency:
Jefferson quickly denounced it as un-republican and contrary to the intent of the framers and the state ratifying conventions. Jefferson argued that such power would violate the separation of powers and make the least republic of the three branches of government the most powerful, thus striking a blow against “the vital principle of republics” which was “absolute acquiescence in the decision of the majority” on all matters entrusted to them by the Constitution.
Chief Justice Marshall asserted in his Marbury decision that the federal courts had the final right to decide questions of disputed constitutionality and the authority to set aside federal laws which they thought contrary to the Constitution. Jefferson argued that an alternative doctrine “concurrent review” was closer to the intentions of the framers and the ratifying convention. According to Jefferson, each branch of the federal government plus the states governments had the right to interpret the Constitution for itself and none had the right to bind the others by its decision.
And this is where I couldn’t agree more with Jefferson. Because of the ability to “bind the others to the decision” States can pass laws that have to be recognized by other States, such as gay marriage. I don’t have an opinion on this matter what so ever, but I don’t what one state to tell my state that I have to live with a law you created. Such as Usury laws….. in the late 1970’s. When Minnesota passed legislation that allowed credit card companies to charge whatever interest rates they wanted, all credit card companies moved to Minnesota and starting handing out credit cards to EVERYONE, playing the odds that more people will pay higher rates than people will default. I don’t really care about the concept except it was one of the kernels is the seeds of destruction of a much bigger credit crisis. It was the first blow to the breaking down the restriction of credit creation inside a cartel, this is something that I do care deeply about. So in the case of Liberty I would have to agree with Jefferson.
In 1820, Thomas Jefferson expressed his deep reservations about the doctrine of judicial review:
You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It is wiser to make all the departments co-equal and co-sovereign within themselves.
Some have argued that judicial review is unconstitutional. This is generally based on two grounds. First, the power of judicial review is not expressly delegated to the courts in the Constitution. The Tenth Amendment reserves to the states (or to the people) those powers not delegated to the federal government. The second argument is that the states alone have the power to ratify changes to the "supreme law" (the U.S. Constitution), and that the states should play some role in interpreting its meaning. Under this theory, allowing only federal courts to definitively conduct judicial review of federal law allows the national government to interpret its own restrictions as it sees fit, with no meaningful input from the ratifying power. ( with no input from creator himself)
I now will mention the book “Original Intent”. I have not read this book. It didn’t interest me because it comes from the perspective that the founding father were all Godly men and if we were all just like them then the county wouldn’t have the problems it has. Don’t get me wrong I believe that a relationship with God it one of the most worthy endeavors in life……..but I don’t think the government should be telling ANYONE that…….. governments are just men…….not gods, but the “Intent” of the Federalist is very clear……Mercantilism!
Mercantilism which reached its height in the Europe of the seventeen and eighteen centuries was a system which employed economic fallacy to build up a structure of Imperial state power as well as special subsidy and monopolistic privilege to individual or group favored by the state.
And this is government that was started by Hamilton and completed by Lincoln and is a philosophy of Statism. The divergence between these two conceptions of the federal relationship, in conjunction with the ultimate identification of each of them with a great sectional political party, formed the constitutional predicate for the Civil War. With the triumph of the Republican Union in 1865, The doctrine of enumerated powers went into eclipse. It still figured in constitutional argumentation, but the main line of constitutional reasoning came to hold that the federal government had essentially all powers that were not explicitly denied it by the constitution. This conception was precisely that which Hamilton had offered in cabinet debate in the 1790s.
“Our country is too large to have all its affairs directed by a single government and if ever the powers of the state government should become concentrated in the general government it would become the most corrupt government on the earth.
And now we see what it has become……. exactly what Thomas Jefferson told us it would become and exactly what we didn’t want. The Constitution was not the beginning; the Constitution was the beginning of the end.