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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, February 26, 2016

Enumerated, Delegated and Other Powers

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.
A professor at Concurring Opinions, who has self-referenced himself as Republican leaning but is fairly reasonable if sometimes saying things I think pretty wrong,* argued that: "prior to the Constitutional Convention there was almost no discussion of using enumeration as a tool to limit federal authority.  Moreover, there was almost no discussion of this during the Convention itself."  A couple comments pointed the 10th Amendment, which many thought (explaining why some didn't think much of it) only declared a basic existing principle.  Reaffirming it in writing mattered.

An article by Prof. Balkin on the Commerce Clause was helpful here, since I was thinking of an important resolution that was passed in the midst of writing the Constitution setting forth a principle that the federal government should have those powers that the states were unable efficiently enough to carry out.  The enumeration of powers in Art. 1, sec. 8, which is not the only place we find legislative powers (more so with amendments) was a textual expression of the principle. I think using that specifically over merely putting in the resolution matters.

The final text came at the end of the process, of course, so specifically enumerating powers very well might not have been focused on then. The Articles of Confederation, e.g., does not have such a clear list though it does delegate certain things to the Congress specifically.  But, as suggested in the blog post, the logic of using enumeration as a limiting principle was pretty obvious and was used right away during the ratification wars. Anyway, as the article says, the meaning of text and structural principles behind it  "may only become apparent over time."  So, as a student of history (I do have a B.A. in it), what they talked about matters, but only so much.  We the People have to decide these things using current knowledge.

Look at the Tenth Amendment. It doesn't say "enumerated" powers or those "expressly delegated" or something. The Ninth Amendment, which was half of a limiting principle brought up at that time in various ways, in fact says enumeration alone can blind here.  How are "powers delegated" (yes, text matters, though its meaning is not always obvious, even if one view seems reasonable)?  Many assumed (or at least now assume) certain subjects are basically inherent to national sovereignty, though what ones and how (or even the very idea) was a matter of great debate. The Necessary and Proper Clause also is an open-ended power, which also is used to carry out powers in other articles. The Guarantee Clause is also potentially open-ended.  Just appealing to enumerated powers was a concern then too -- slavery, e.g., could be greatly limited by using the Commerce Clause as literally phrased.  James Wilson:
Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States.
I'm using this not to suggest such an appeal to authority trumps, but it is informative of the thinking at the time, plus since high school appreciated well phrased arguments (used op-eds as launching pads of thinking about issues, which is still used in effect these days on blogs).  What this means is unclear but note it isn't the same as looking at the enumerated powers alone. Thus, marriage is generally seen (to reference basic federalist arguments) as a state matter, though you can formulate a range of ways to use enumerated powers to greatly nationalize marriage. So, marriage as (generally; e.g., you can't wrongly discriminate) a state matter is argued to be a "10A" issue. It isn't just a matter of "enumerated" power.  Prof. Balkin covers that too in his own fashion in the article, particularly when discussing U.S. v. Lopez.

So, the text matters ("delegated" ... not "enumerated"), but what it might mean is unclear and complicated, plus "may only become apparent over time."  And, there are various reasonable ways to look at it, though there is a tendency to skip from that to making assumed understandings as the only reasonable and logical approach. Plus, let me add that I'm not fully accepting of Prof. Balkin (his whole "originalism" shtick, and at some point it seems that way, included), but think that is a good article overall.


* At Balkinization, e.g.,  sarcastically didn't "feel the Bern" because he said that for sure he would appoint justices firmly against Citizens United as if this was somehow a violation of judicial ethics (saying before being a judge that you'd do something), putting aside the concept of campaign puffery.

I also have challenged his idea that "bill of rights" as a description of the first ten amendments was not understood until basically after the Civil War.  First, I found various definitions of the term that match what is found there (e.g., freedom of the press or jury rights are basic examples).  Second, Jefferson himself in at least one letter I found referenced it as such. That is around 1791.  I think other cases can be found, especially with some skilled digging with better databases.

Third, I couldn't find anyone who pushed for a "bill of rights" say "that isn't one!"  Some thought it was too weak, which isn't the same thing.  GM's rule that it had to have some general principle skips over 2-3 (if you count the preamble of the 2A; if not, the last two) doesn't work.  It didn't have to be at the top of the Constitution either, which sounds like a silly rule anyways.  Finally, there are citations like Joseph Story discussing the 2A as "this clause of our national bill of rights."

Was the term underused and the Bill of Rights (especially capitalized with such a central sense of place as it is now) as a whole not a major concern until later? Yes, and that is an interesting story.  But, it's a somewhat different one.  I think the debate here is telling in how part of history is used to conclude something not quite as strong as some make it out to be.

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