Constitution Lectures 3: The Powers of Government (HD version)

Uploaded by shanedk on 22.02.2010

Welcome to Part 3 of our lecture series on the Constitution. If you haven’t already
watched Parts 1 and 2, I strongly recommend you do so.
A government is nothing without powers. In the United States, it is our Constitution
that creates the government and gives it its powers. In order to understand the Constitution
and our system of laws, it is vital that we understand what these powers are and how they
should be applied.
First, the Constitution sets up our Federal government under the Doctrine of Separation
of Powers. Related to this is the Doctrine of Nondelegation, meaning the powers from
one branch of government cannot be delegated or transferred to another.
For example, Article I Section 1 clearly states that “All legislative Powers herein granted
shall be vested in Congress,” and not any other body. Also, Congress is given no power
to delegate or transfer their powers. It is ALL legislative powers, without exception.
So, for example, Congress is given the power to declare war; they do NOT have the Constitutional
authority to delegate that power to the President.
The Constitution is constructed this way. Article I defines the Legislative branch,
creates Congress, and grants the legislative powers specifically and solely to Congress.
Article II defines the Executive branch, creates the office of the Presidency, and vests executive
power in the President. As part of his duties, he may create departments, assign department
heads, and delegate powers to them so that he doesn’t have to take care of every little
detail himself. He can do this without running afoul of the Nondelegation Doctrine because
these departments and their heads are part of the Executive branch.
And finally, the Judicial Branch is defined in Article III and Judicial power is vested
in a Supreme Court and any lower courts that Congress might create. These three branches
wholly comprise all of the power of the Federal government.
Another very important doctrine regarding the powers of government is the Doctrine of
Enumerated Powers. This doctrine states that, in order for the Federal government to have
a power, it must be given that power by the Constitution; in other words, all powers must
be enumerated.
This was confirmed by the Supreme Court in McCulloch v. Maryland: “This government
is acknowledged by all, to be one of enumerated powers. That principle is now universally
admitted.” There just wasn’t any doubt about that when the Constitution was ratified,
or for decades after.
In case you’re wondering if anything has changed, in 1995 in US vs. Lopez, the Supreme
Court ruled, “We start with first principles. The Constitution creates a Federal Government
of enumerated powers.” If a power is not granted to the Federal government, they do
not have the power—both then and now.
The enumerated powers of Congress are listed in Article I Section 8. This is a list of
18 powers granted to the Federal government. Keep in mind that legislation is the start
of all government activity; the Executive branch cannot execute a law until it is first
passed by Congress, and the courts cannot decide on a law until it has been executed
and brought to court. So Article I Section 8 defines all of the things the Federal government
has the power to do. We won’t go over the list here, but specific powers will be the
subject of future lectures.
These powers are restricted by Article I Section 9. This prevents the government from doing
things such as restricting habeas corpus or making an ex post facto law. Habeas corpus
means that the government cannot detain someone without judicial review. Ex post facto means
that a law cannot be applied to someone who committed the act before the law restricting
it was passed. So, the government can do anything in Article I Section 8, UNLESS in so doing
it violates the restrictions in Article I Section 9.
These powers are further restricted by the Bill of Rights. The Bill of Rights grants
no powers to the government, but it does place further restrictions on its powers. Now it
cannot restrict freedom of speech or the right to bear arms, engage in warrantless searches,
and so forth, even if it is doing so in pursuance of one of its enumerated powers.
So the government can do anything in Article I Section 8, as long as it isn’t restricted
by Article I Section 9, AND it isn’t restricted by the Bill of Rights.
Now, you may be wondering, “What about the powers of the states? We’ve been talking
about powers of the Federal government. What are the powers of the states?”
The states themselves are not subject to the doctrine of Enumerated Powers. In fact, the
Constitution makes no attempt whatsoever to enumerate any powers to the states. Therefore,
the states’ powers are open to whatever power they deem necessary for governing their
own internal affairs.
However, there are restrictions. State powers are restricted by Article I Section 10. Many
of these are the same as in Section 9: just as the Federal government cannot violate habeas
corpus or make a law ex post facto, neither can the states. There are also other restrictions;
for example, Section 8 gives the Federal government the power to coin money. Section 10 prohibits
the states from coining money.
Also, states are restricted by certain clauses in the Bill of Rights. The First Amendment
applies only to Congress, but the Second Amendment, as well as most of the others, do not have
this restriction.
And finally, the Fourteenth Amendment placed further restrictions on the powers of the
states by restricting them to due process, and by applying other rights in the Bill of
Rights to the states, such as those in the First Amendment.
There are other restrictions as well, against both the states and the Federal government.
Article VI prohibits religious tests as a requirement for public office. The Thirteenth
Amendment banned slavery. And so on. They appear here and there throughout the Constitution.
Now, what does all of this mean? The language of the Tenth Amendment makes it plain:
“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.”
In other words: If it isn’t in the Constitution, it falls to the states, UNLESS the states
are restricted from doing it, in which case it falls to the people.
So, what is the significance of this lecture? What is the point to take from all of this?
If nothing else, it should help you realize one obvious, undeniable, and awful truth:
Most of what the Federal government does is unconstitutional. In any given week, perhaps
dozens of bills are passed in Congress that don’t have anything to do with any power
in Article I Section 8. This includes everything from the Social Security system to Federal
funding and regulation of public education. These things are every bit as unconstitutional
as the denial of free speech. Now, perhaps you like these things and think they should
be a part of what the Federal government does. But then, the proper course of action should
be to first amend the Constitution. For if you can violate the Constitution to do what
you want, others can violate the Constitution to restrict free speech or conduct warrantless
And you would be falling into the trap Alexander Hamilton warned us about in Federalist #84:
“[A bill] of rights...would afford a colorable pretext to claim more [powers] than were granted...I
will not contend that such a provision would confer a regulating power; but it is evident
that it would furnish, to men disposed to usurp, a plausible pretense for claiming that
power.” So thinking that abridging free speech is
somehow more repugnant to the Constitution than to claim a power not granted misses the
point, and is very dangerous to liberty. So many liberties have been taken because certain
“exceptions” to the Bill of Rights have been claimed, such as a “compelling government
interest” or the interests of national security.
This is perhaps one of the most important concepts to take from this lecture series.
Instead of worrying whether or not some bill runs afoul of the first amendment, or the
fourth, or whatever, the first thing you should ask is, does the government have the power
at all? Is there anything in Article I Section 8 that grants them that power? If not, then
you stop right there—because it’s absolutely unconstitutional. Only if the power is granted
should you then go and ask if it runs afoul of the Constitutional restrictions—does
it violate habeas corpus? Does it abridge free speech? And so forth.
As for specific powers, we will discuss those in future lectures. Until then, as always,
stay strong and be free.