The Constitution created a federal government with powers that, as James Madison said, were “few and defined.” Yet today the feds have their paws in almost every pocket of American life. How did that happen?
One reason is that if you don’t know much about the Constitution’s language, you can misread those “few and defined powers” to be much broader than they really are.
During the debates over ratifying the Constitution, its opponents predicted this kind of misinterpretation might arise. That’s the fundamental reason they demanded a bill of rights. It’s not enough, they said, to list what the federal government can do. To make the document clear, you also need a list of examples of what the federal government cannot do.
The bill of rights was one such list. But (and few people know this today) there were many others.
During the debates leading advocates for the Constitution enumerated functions mostly or totally outside the federal sphere—and therefore reserved exclusively to the states and people. These functions included many where the federal government now intrudes: social services, education, criminal law, civil justice, land use, and others. In 2003, the Nevada Law Journal published my article, The Enumerated Powers of States, which reproduced many of the advocates’ representations.
In the ensuing fifteen years, I discovered new lists. My brand new essay—part of a series for Federalist Society Review—adds the new lists to the group. The essay is called The Founders Interpret the Constitution: The Division Between Federal and State Powers.
The essay does something else as well: It informs the reader of the outstanding qualifications of the “enumerators.”
Those informing the public about the limits on federal power were not just a bunch of anonymous letter writers. In addition to a few leading non-attorneys, such as James Madison and Tench Coxe, they included a large portion of the most distinguished lawyers in America. The relatively narrow limits of federal jurisdiction were explained by state supreme court justices, law codifiers and scholars, and state chancellors—the latter being the highest possible legal position in some states.
This was constitutional interpretation by America’s best legal minds, writing at the very time the Constitution was under consideration. It would be hard to find better evidence of the Constitution’s true meaning. It certainly is more useful than the stuff taught in law schools—that is, Supreme Court opinions written decades or centuries later, and without full access to founding era legal sources.