by Rob Natelson
Our Constitution created a federal government with only enumerated powers. All powers not listed were reserved to the states and people.
That is commonly known. What is not commonly known is that during the debate over adoption of the Constitution, the Constitution’s advocates also enumerated powers the federal government absolutely would not have.
When the Constitution was being debated, the opponents’ most important objection was that the new federal government might have too much power. The Bill of Rights – including the Tenth Amendment – was adopted to quiet such fears.
In addition, however, the Constitution’s proponents publicly told the American people what subjects would be within the states’ exclusive jurisdiction – and outside the federal government’s control. They did this in a variety of speeches, newspaper articles, letters, and pamphlets.
Who were these “enumerators?â€Â Most were citizens of very high standing.
They included, among others: Alexander Hamilton, James Wilson (a convention delegate and chief proponent in Pennsylvania), Edmund Pendleton (chancellor of Virginia and chairman of his state’s ratifying convention), James Iredell (North Carolina judge, pro-Constitution floor leader at his state’s ratifying convention and later U.S. Supreme Court Justice), John Marshall (a ratifier and later U.S. Chief Justice); Maryland Congressman Alexander Contee Hanson, Nathaniel Peaslee Sargeant (a Justice of the Massachusetts Supreme Judicial Court), Alexander White (Virginia lawyer, ratifier, and later U.S. Senator), prominent businessman Tench Coxe, and – of course – James Madison.
Here are some of the powers they solemnly promised would be outside the federal sphere:
- governance of religion
- training the militia and appointing militia officers
- control over local government
- most crimes
- state justice systems
- family affairs
- real property titles and conveyances
- wills and inheritance
- the promotion of useful arts in ways other than granting patents and copyrights
- control of personal property outside of commerce
- governance of the law of torts and contracts, except in suits between citizens of different states
- education
- services for the poor and unfortunate
- licensing of taverns
- roads other than post roads
- ferries and bridges
- regulation of fisheries, farms, and other business enterprises.
For an article on the subject, see The Enumerated Powers of States, available at: http://www.umt.edu/law/faculty/natelson.htm
Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history. He is currently seeking a publisher for his latest book, The Original Constitution.
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