by Rob Natelson
The Constitution enumerates the power of the federal governmentâ€”but are there authoritative lists of those powers reserved to the states with which the federal government may not interfere?
During the period 1787-1790, while the public was debating whether to adopt the Constitution, the documentâ€™s opponents (â€œAnti-Federalistsâ€) argued that the Constitution would grant the federal government powers so broad that there would be little left for the states.
Supporters of the Constitution responded that, actually, the powers granted the federal government were â€œfew and definedâ€ (Madison), but the states would retain exclusively all other prerogatives of government.Â Some added that the statesâ€™ sphere was so vast, that enumeration of all exclusive state powers was impossible.
Nevertheless, Anti-Federalists continued to insist on knowing the sorts of things that federal officials would not be able to touch.Â In response, leading spokesmen for the Constitution began to list such items.
Although some of those spokesmen simply provided a few examples, others offered considerable lists.Â The lists complemented rather than contradicted each other.Â Some of the longest lists came from the pen of Tench Coxe, a Philadelphia businessman who had served in the Confederation Congress and, in subsequent years, was to become the Assistant Secretary of the Treasury.
Coxe is little-known today, but his essays were among the mostÂ influential with the general public, if not the most influential, of all the pro-Constitution writers.Â His writings were not as extensive as, say, Hamilton, Madison & Jayâ€™sÂ Federalist, but they were much easier to read and may have been more widely distributed.Â Â His representations, and similar ones from other pro-Constitution writers, were central to the entire constitutional bargain.
Coxe wrote under several pen names.Â The excerpts below from two of his â€œFreemanâ€ essays illustrate the powers constitutionallyÂ denied to the federal government.
For more complete treatment of this subject, see my article,Â The Enumerated Powers of States.Â (Since writing that article, Iâ€™ve found even more Founding-Era enumerations.)
Here are Coxeâ€™s lists:
From Freeman No. 1:
â€œIt will be found, on a careful examination, that many things, which are indispensibly necessary to the existence and good order of society, cannot be performed by the fÅ“deral government, but will require the agency and powers of the state legislatures or sovereignties, with their various appurtenances and appendages.
â€œ1st. Congress, under all the powers of the proposed constitution, can neither train the militia, nor appoint the officers thereof.
â€œ2dly. They cannot fix the qualifications of electors of representatives, or of the electors of the electors of the President or Vice-President.
â€œ3dly. In case of a vacancy in the senate or the house of representatives, they cannot issue a writ for a new election, nor take any of the measures necessary to obtain one.
â€œ4thly. They cannot appoint a judge, constitute a court, or in any other way interfere in determining offences against the criminal law of the states, nor can they in any way interfere in the determinations of civil causes between citizens of the same state, which will be innumerable and highly important.
â€œ5thly. They cannot elect a President, a Vice-President, a Senator, or a fÅ“deral representative, without all of which their own government must remain suspended, and universal Anarchy must ensue.
â€œ6thly. They cannot determine the place of chusing senators, because that would be derogatory to the sovereignty of the state legislatures, who are to elect them.
â€œ7thly. They cannot enact laws for the inspection of the produce of the country, a matter of the utmost importance to the commerce of the several states, and the honor of the whole.
â€œ8thly. They cannot appoint or commission any state officer, legislative, executive or judicial.
â€œ9thly. They cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices; building light houses, public wharves, county gaols, markets, or other public buildings; making sale of state lands, and other state property; receiving or appropriating the incomes of state buildings and property; executing the state laws; altering the criminal law; nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive or judicial, civil or ecclesiastical.
â€œ10thly. They cannot interfere with, alter or amend the constitution of any state, which, it is admitted, now is, and, from time to time, will be more or less necessary in most of them.â€
From Freeman No. 2:
â€œFirst, then, each state can appoint every officer of its own militia, and can train the same, by which it will be sure of a powerful military support attached to, and even part of itself, wherein no citizen of any other state can be a private centinel, much less have influence or command.
â€œ2dly. Every regulation relating to religion, or the property of religious bodies, must be made by the state governments, since no powers affecting those points are contained in the constitution.
â€œ3dly. The state legislatures and constitutions must determine the qualifications of the electors for both branches of the fÅ“deral government; and here let us remember to adhere firmly within our respective commonwealths to genuine republican principles. Wisdom, on this point which lies entirely in our hands, will pervade the whole system, and will be a never failing antidote to aristocracy, oligarchy and monarchy.
â€œ4thly. Regulating the law of descents [inheritance], and forbidding the entail of landed estates, are exclusively in the power of the state legislatures. . . .
â€œ5thly. The elections of the President, Vice President, Senators and Representatives, are exclusively in the hands of the states, even as to filling vacancies. The smallest interference of Congress is not permitted, either in prescribing the qualifications of electors, or in determining what persons may or may not be elected.
â€œThe clause which enables the fÅ“deral legislature to make regulations on this head, permits them only to say at what time in the two years the house of representatives shall be chosen, at what time in the six years the Senate shall be chosen, and at what time in the four years the President shall be elected; but these elections, by other provisions in the constitution, must take place every two, four and six years, as is declared in the several cases respectively.
â€œ6thly. The states elect, appoint and commission all their own officers, without any possible interference of the fÅ“deral government.
â€œ7thly. The states can alter and amend their several constitutions, provided they do not make them aristocratical, oligarchic or monarchicalâ€”for the fÅ“deral constitution restrains them from any alterations that are not really republican. That is, the sovereignty of the people is never to be infringed or destroyed.
â€œ8thly. The states have the power to erect corporations for literary, religious, commercial, or other purposes, which the fÅ“deral government cannot prevent.
â€œ9thly. Every state can always give its dissent to fÅ“deral bills, as each has a vote in the Senate secured by the constitution. Hence it appears, that the state governments are not only intended to remain in force within their respective jurisdictions, but they are always to be known to, and have their voices, as states, in the fÅ“deral councils.
â€œ10thly. The states not only elect all their own officers, but they have a check, by their delegates to the Senate, on the appointment of all fÅ“deral officers.
â€œ11thly. The states are to hold separate territorial rights, and the domestic jurisdiction thereof, exclusively of any interference of the fÅ“deral government.
â€œ12thly. The states will regulate and administer the criminal law, exclusively of Congress, so far as it regards mala in se, or real crimes; such as murder, robbery, &c. They will also have a certain and large part of the jurisdiction, with respect to mala prohibita, or matters which are forbidden from political considerations, though not in themselves immoral; such as unlicenced public houses, nuisances, and many other things of the like nature.
â€œ13thly. The states are to determine all the innumerable disputes about property lying within their respective territories between their own citizens, such as titles and boundaries of lands, debts by assumption, note, bond, or account, mercantile contracts, &c. none of which can ever be cognizable by any department of the fÅ“deral government.
â€œ14thly. The several states can create corporations civil and religious; prohibit or impose duties on the importation of slaves into their own ports; establish seminaries of learning; erect boroughs, cities and counties; promote and establish manufactures; open roads; clear rivers; cut canals; regulate descents and marriages; licence taverns; alter the criminal law; constitute new courts and offices; establish ferries; erect public buildings; sell, lease and appropriate the proceeds and rents of their lands, and of every other species of state property; establish poor houses, hospitals, and houses of employment; regulate the police; and many other things of the utmost importance to the happiness of their respective citizens. In short, besides the particulars enumerated, every thing of a domestic nature must or can be done by them.
â€œIn addition to this enumeration of the powers and duties of the state governments, we shall find many other instances under the constitution, which require or imply the existence or continuance of the sovereignty and severalty of the states.â€”The following are some of them:â€”
â€œAll process against criminals and many other law proceedings will be brought by and run in the name of that commonwealth, in which the offence or event has taken place.
â€œThe senate will be representatives of the several state sovereignties.
â€œEvery state must send its own citizens to the senate and to the house of representatives. No man can go thither, but from the state of which he is a complete citizen, and to which, if they choose, he shall be sworn to be faithful.
â€œNo state shall on any pretence be without an equal voice in the senate.
â€œAny state may repel invasions or commence a war under emergent circumstances, without waiting for the consent of Congress.
â€œThe electors of the President and Vice-President must not nominate more than one person of the state to which they belong: so careful is the fÅ“deral constitution to preserve the rights of the states.
â€œIn case of an equality of votes in the election of the President or Vice-President, a casting voice is given to the states from a due attention to their sovereignty in appointing the ostensible head of the fÅ“deral government.
â€œTwo thirds of the states in the proposed confederacy can call a convention.
â€œThree fourths of those states can alter the constitution.
â€œFrom this examination of the proposed constitution for the United States, I trust it will appear, that though there are some parts of it, which, taken separately, look a little like consolidation, yet there are very many others of a nature, which proves, that no such thing was intended, and that it cannot ever take place.â€
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitutionâ€™s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Coloradoâ€™s Independence Institute. Visit his blog there at http://constitution.i2i.org/