Talk:Enumerated powers (United States)

Loose constructionism
Loose constructionism is a valid and used term. It's no less POV than the term "strict constructionism". Google gives over 20,000 hits for "loose constructionism", and over 40,000 for "loose constructionist". Granted, "strict constructivist" gets more hits, but that's because they're more prominently discussed. &mdash;thames 04:17, 7 October 2005 (UTC)

Applies to all branches of US Government
This article reads as if enumerated powers only applies to the Legislative Branch. Unless I'm woefully mistaken, each branch of the Federal Government has enumerated powers. HyperCapitalist (talk) 23:26, 26 July 2009 (UTC)

Reads like political propoganda
This entry needs a lot of work to lose the POV and become a useful entry. Perhaps it's time to nominate for deletion until someone can write a more objective entry. —Preceding unsigned comment added by 70.231.129.153 (talk) 04:47, 22 March 2010 (UTC)

The Enmerated Powers Doctrine
The Enmerated Powers Doctrine

Summary The Enumerated Powers Doctrine is a reference to the foundational idea all specified power granted to governments are limited to the discrete set of powers specified within the government's charter (Constitution) and any power not specified is withheld from government. This is the philosophical basis underpining government formed under the auspices of constitutional Rule of Law. In the U.S., the Founders, Framers, Drafters and Ratifiers of the Constitution inaugurated just such governments in a federal structure - State and National government. The Founders operated under the idea, "enumeration presupposes something not enumerated," as explained by Chief Justice Marshall in Gibbons v. Ogden in 1824. All powers not enumerated are therefore withheld, and reserved, in our system, to the state governments (codified by the 10th Amendment). Often, however, intended power grants can be subverted by governments and one such example follows. In the Founding-era, it was clear the "police power" (or power to enact criminal statutes and penalties) was not granted to the Federal government beyond the four specific powers articulated in Article I, Section 8 of the Constitution)[1]. Such police power over U.S. citizens was retained by the States under their own sovereignty, but not conferred by enumeration to the Federal government beyond those four powers: criminalizing and punishing counterfeiting, piracy, other crimes on the high seas, and treason. The Supreme Court "rewrote" the Commerce Clause[2] of the Constitution (Article I, Section 8, Clause 3) to embody a new police power. Congress now regularly enacts laws often in the guise of regulating commerce, but in actuality in violation of the Commerce Clause's original intent[3] as understood in the "Dormant Commerce Clause."[4]

Sources: 1. United States v. Lopez, 514 US 549, 584-85

2. Gonzales v. Raich, 545 US 1, 70 (2005) (Thomas, J., dissenting)

3. The original intent of the Commerce Clause was solely to remove/reduce obstructions to commerce between states. See Florida v. United States HHS, 780 F. Supp. 2d 1256, 1276 (ND FL 2011).

4. The original intent is clearly understood by the Supreme Court in its "Dormant" Commerce Clause jurisprudence. See Tenn. Wine & Spirits Retailers v. Thomas, 139 S. Ct. 2449, 2460 (2019), but the Court selectively ignores the original intent across the rest of the Commerce Clause corpus juris. 174.247.81.94 (talk) 05:26, 1 November 2022 (UTC)

The Four Felonies
The Four Felonies

Summary

The Four Felonies is a reference to the enumerated power of Congress to enact felony statutes (also called the federal "power to punish" or "police power") specified in the U.S. Constitution. Article I Section 8, contains exactly two clauses: Clause 6 & 10, which delegate enforcement of three felonies to Congress. One additional clause in Article III provides the federal government power over a fourth crime. Thomas Jefferson elucidated the specific four when he wrote, "The Constitution ... delegated to Congress the power to punish Treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas and offenses against the law of nations, and no other crimes whatsoever ..."[1]

Jefferson went on to affirm the "express" effect of the Tenth Amendment was to leave all other criminal legislative power to the Sovereign states under their police powers - a power retained by, and exclusive to, the States.

Footnotes 1. Pilon, Roger. 2000. Chapter: "The Illegitimate War on Drugs" in After Prohibition. T. Lynch. The Cato Institute. 174.247.81.94 (talk) 05:27, 1 November 2022 (UTC)

Why Alcohol and Not Drugs: A Simple Example of Defying the Enumerated Powers
THE FOUR FELONIES AND THE ROOT CAUSE OF FEDERAL POLICE OVERREACH

November, 2022

This article presents abecedarian legal and political items seemingly lost to U.S. history in order to draw attention to root causes of today's massive Federal overreach. It does so from a baseline assertion that our Founders had good ideas and used sound philosophies to form a brilliant federal structure of government. The structure would remain fully intact for a mere century or so, but was unparalleled as-built. Among the founding First Principles enunciated in Founding-era documents, treatises, speeches, etc., one will not find the idea that governments are formed to solve societal problems or to otherwise micromanage, by social engineering, the lives of the people (a la Progressivism and Conservatism, today). Instead, the Founders saw government as a necessary evil and "rulers" in need of clear and rigid restraints. In fact, they constructed a nation ruled by laws, not men. Thus, foremost of the prime directives to the Federal Government is to secure rights above all else: "Our Constitution is born of the prepositions that all legitimate governments secure the equal rights to Life, Liberty, and the pursuit of Happiness" (Cruzan v. Director, MO. Health Dept., 497 U.S. 261, 330 (1990) (Stevens dissenting) (citation omitted).

The Constitution structured restrains on the new government by enumerating only specific, discrete powers to the Federal Government. See the "doctrine of enumerated powers" ("The Illegitimate War on Drugs" by Roger Pilon, in After Prohibition at 25. 2000. I. Lynch. Cato Institute). In short, the doctrine instructs that a grant of power is limited to what is explicitly enumerated and nothing more. For the legal minds: the idea is reinforced under long-standing cannons of legal construction: (i) expression unius est exclusio expressum facit cessare tacitum, or "What is expressed makes what is silent cease." See the famous and enduring essay, "Some Reflections on the Readings of Statutes" 47 Colum. L. Rev. 527, 537 (1947) Frankfurter, J. The purpose of this article more pointedly then, is to highlight an ongoing, glaring, yet relatively unaddressed violation by Congress of this, among other First Principles, in an exercise of power far beyond any specifically enumerated in the Constitution. The upshot of the matter: Congress must find authority in a specific provision in the Constitution to enact a law, but has often completely failed to do so.

In particular, in a brazen disregard of constitutional limits, the Federal Government has illicitly expanded the specific "power to punish" beyond the four enumerated crimes specified in Article 1, Section 8, clauses 6 and 10; and Article 3, Section 3, clause 2 (The "Four Felonies" or the Federal "Police Power"). See Taylor v. United States, 195 L. Ed. 2d 456, 465 (2016) (Thomas, J., dissenting); and the Second Resolve Clause, Kentucky Resolutions (1798) (T. Jefferson):

The Constitution ... delegated to Congress the power to punish Treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas and offenses against the law of nations, and no other crimes whatsoever ...(emphasis added) Second Resolve Clause, supra.).

A mere glance at today's bloated federal criminal code makes crystal clear the Federal Government has far exceeded any grant of power to punish. To what extent? Compare:

"The powers delegated ... to the federal government are few and defined..." See Federalist No. 45 (J. Madison).

With

"There are so many federal laws that no one, including the justice department, the principal law enforcement agency, knows the actual number of crimes." Gamble v. United States, 139 S. Ct. 1960, 2006 (2019) (Gorsuch, J dissenting) (citations omitted).

See also United States v. Lopez, 514 U.S. 549, 584-85 (1995) (Rehnquist, CJ). ("The Federal Government has nothing approaching a police power.")

How did this severely misconfigured over policing state of affairs created by Congress come about? First, among the underlying primary cultural factors in play are the dominant western moral ideologies which have intensified over the decades. Utopianists of various flavors emerge from separate echo chambers but unify in pushing for more rules and more government to insert more authoritarian fixes for endless perceived grievances and societal ills. More to the point, to go way beyond (1) securing rights, and (2) exercising few and defined powers. Of course, ideologues who obtain positions of power feel compelled - and enjoy exercising power to impose ideas, truths, virtues, and concomitant restrictions and punishments on the rest of us. And so we have a government transformed into what I deem an "Oligarchy of Ideologues" actively seeking to cast off restraints on power.

Second, in the political realm, I believe the broad and vague "tough on crime" messaging from Conservative and Progressive voices alike has fueled decades of massive federal police power overreach. But Conservative members of Congress are foremost among those who tout small, limited government while voting for increased federal intrusion in the form of innumerable criminal statutes in the name of being tough on crime. More federal laws equals more federal police equals bigger government. The time has come to "walk the talk" on liberty and limited government and long overdue is the time to prioritize our founding moral code and First Principles.

Things were not always this misconfigured. In 1919, for instance, the powers exercised by the Federal Government were truly few and defined. So when Congress sought to respond to a moral outrage of the day in the form of Prohibition, they recognized the Constitution granted no power to prohibit/police alcohol on a federal level. So, the Representatives of the people chose to create and ratify the 18th Amendment to the Constitution, granting just such a power. This particular action accorded with the Article V process for amending the Document to legitimately grant a new power to the federal government in order to prohibit, police and/or punish.

But skip forward some 50-years to the modern-era of Federal power and efforts to intervene to cure social ills of the Sixties in the outrage-du-jour: illicit drugs beyond alcohol. Someone had to capitalize politically on the sentiment a voila, the "War on Drugs" was born: prompted by LBJ's "War on Crime", but beginning in earnest as a component of Nixon's presidential campaign platform. Did the public get the message and thence elect him to attempt to solve addiction via federal power? Who knows, but Congress sure did - members there did the dirty lawmaking work for Nixon to sign. In an egregious power grab, Congress enacted a nationwide police measure prohibiting a whole host of substances (schedule of controlled substances). In utter malfeasance, this particular Congress, unlike their predecessors in 1919, elected to skip Article V amendment process altogether. In 1970, the Controlled Substances Act passed based on an astounding subversion of the Constitution. And the Supreme Court in subsequent cases upheld the Act (and myriad other laws in other cases) based on nothing less than pro tanto the creation of a new and false constitution.

Very few Americans seem to be aware of this major deviation in our legislative history. How exactly does Congress outlaw alcohol by the specifically required step involving amending the Constitution, but outlaw marijuana and cocaine, etc., without doing the same? The truly confounding answer: a "rewrite" of a specific constitutional provision by the Supreme Court (see Gonzales v. Raich, 545 US 1, 70 (2005) (Thomas, J., dissenting). In the intervening 50-years, the Court essentially fabricated-by-rewrite a new police power into the Interstate Commerce Clause. The distortive effect has grown unchecked to the point Congress now enacts laws (like the Controlled Substances Act) in direct contravention of the Commerce Clause's original intent[1] as interpreted and applied, incongruously, in "Dormant" Commerce Clause jurisprudence[2]. As a consequence, a good portion of the Federal criminal code is simply illegitimate.

In conclusion, this ivory tower subterfuge has been sustained by most all "Conservative" Justices (Constitutionalists in name only), but must now be confronted by the Justice on this Supreme Court. They must follow the example of the august Justice Clarence Thomas, a voice in the wilderness, who has time-and-again called out the subversion, the overreach by Congress, and the errant Court[3]. The Supreme Court has seen quite a bit of turnover in recent years and is now where the real action is: The focus of the collective eye needs to be there as the institution now hangs in the balance. The return to our original Constitution and ordered liberty must start by first retracting the overweening federal police power and reinstating our other critical First Principles. Any efforts toward this may very well stall out if the Court succumbs to ongoing Utopianist pressure as it has for nearly a century.

Singed, Dignitas

1. The original intent of the Commerce Clause is indisputable: to eliminate or reduce burdens or obstruction to trade. See Florida v. United States HHS, 780 F. Supp. 2d 1256, 1276-1277 (ND FL. 2011).

2. The original intent is fully acknowledged by the Supreme Court. See "Dorman" Commerce Clause jurisprudence: Tenn. Wine & Spirits Retailers v. Thomas, 139 S. Ct. 2449, 2460 (2019). But the Court selectively cleaves and ignores the original intent across the rest of Commerce Clause law. This modern-era bifurcated mutant is a blatant, stunning case of judicial malfeasance: a deliberate, inconsistent application and interpretation of the Constitution. In the words of President Biden: Come on, Man!"

3. See United States v. Lopez, 514 US 549, 584-85 (1995) (Thomas, J concurring); United States v. Morrison, 529 US 598, 618-19 (2000); Gonzales v. Raich, supra., at 34-42 (Justice Scalia misuses the Necessary and Proper Clause. He also sidesteps Justice Thomas's main argument regarding the lack of any enumerated general federal police power; and Taylor, supra., at 467-68 (Justice Thomas's elegant Four Felonies discussion in his dissent is swatted down by Justice Alito, supporting and perpetuating the Court's refusal to reinstate the Constitution's Commerce Clause as written, "[w]e have not been asked to reconsider Gonzales v. Raich." 174.247.81.241 (talk) 06:10, 16 November 2022 (UTC)