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More Founding-Era Evidence that Some State Functions Derive Only From the Constitution (With Some Comments on the Amendment Process)

In prior posts, I’ve discussed two key elements of constitutional law:

1. The Constitution grants some powers to persons and entities other than the federal government. These persons and entities include state legislatures, state governors, state conventions, the Article V “Convention for proposing Amendments,” Congress as a free-standing assembly, and the Electoral College.

2. When states, state governors, and state legislatures act under those powers they perform (in the words of the Supreme Court) “federal functions” granted them by the Constitution. They do not act by virtue of state powers reserved by the Tenth Amendment.

The courts have repeatedly vindicated both of these principles.

For example, the Constitution provides that “Each State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.” (II-1-2) Similarly, the Constitution grants to state governors authority to issue writs for House elections (I-2-4). It grants state legislatures authority to regulate congressional elections (I-4-1), to apply for an amendments convention and, under certain circumstances, to ratify a constitutional amendment. (Art. V).

All these powers derive from the Constitution. They were not “reserved by the states” when the Constitution was ratified. As the Supreme Court has pointed out, to be “reserved” a power must have existed prior to the Constitution, and all of these powers pre-suppose that the Constitution is already in existance.

This is why those who claim that a state can use its reserved authority to control the amendment process are simply mistaken. A state legislature has a good deal of control over that process, but only as much as is incidental to its Article V functions.

In fact, the concept that some state powers are delegated rather than reserved was understood even under the Articles of Confederation.

Under the Articles, the Confederation Congress created and oversaw the U.S. Post Office. On June 13, 1788 (when the Constitution’s ratification was not yet complete), Postmaster General Ebenezer Hazard sent Congress a letter describing a problem and asking for guidance.

Benjamin Franklin was then president (governor) of Pennsylvania. Apparently on the authority of his state office, Franklin ordered a letter in the custody of the U.S. Post Office to be opened and inspected. Hazard wanted to know whether Franklin had operated legally. He acknowledged that Congress had authorized state executives to open the mail during wartime, but in 1788 the United States was no longer at war.

Franklin could have made a reasonable case—a much better case, in fact, than that argued by those who claim the states have Tenth Amendment authority over the amendment process. This is because the Articles’ reserved powers clause was even stronger than the Tenth Amendment: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” Moreover, official letter-opening was a common practice during the 18th century. In fact, one reason governments created post offices and banned mail delivery by private parties was to enable governments to better monitor communications. Franklin knew all this: He had been a postmaster under both the Crown and under Congress.

Nevertheless, in a report issued on June 18, 1788 the investigative committee found that Franklin had exceeded his authority:

. . . Congress by the Confederation have the sole and exclusive power of regulating the post offices throughout the United States that no power can be exercised respecting the post office but what is delegated by Congress and that it does not appear that any such power has been hitherto delegated.

Because it had been asked about the advisability of delegating mail-opening authority to state governors, the committee added:

. . . [T[he power in question is of such a nature as not to be capable of being delegated with propriety to any persons except to some principal officer or officers immediately under the controul of and responsible to Congress.
Under these impressions and considering the present state of the Government of the United States the Committee are of opinion that it is inexpedient to delegate the power in question to the governors and presidents of the Several States.

34 J. Cont. Cong., p. 239.

Of course, one might quibble by observing that the post office provision in the Articles included the phrase “exclusive power” while the Constitution does not. But this would be a sophomoric objection: When the Constitution creates procedures for presidential election, amendment, and the like, those procedures are clearly intended to be exclusive, even where the precise word is not used. In absence of an authorizing amendment, attempting to use other procedures for, say, electing the president or amending the Constitution would certainly be unconstitutional.

Rob Natelson