# What limits does the Constitution place on the federal government? **URL:** \ **Category:** Great Debates\ **Created:** [December 15, 2010, 7:36am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216 "2010-12-15T07:36:57Z")\ **Posts on this page:** 15\ **Page:** 1
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [December 15, 2010, 7:36am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/1 "2010-12-15T07:36:57Z")
A libertarian blogger [asks this question of his liberal readers](http://www.theagitator.com/2010/12/14/an-honest-question-for-lefties/). As it’s a libertarian blog, I don’t expect a lot of answers from said liberals (just from sheer numbers, you understand), but I was curious as to what the many liberal (and heck, conservative) political thinkers here at the Dope would answer this question. You can read the post itself to get all the details of his question/argument (and suggested links that explicate his own POV), but basically, the question is this: other than the Bill of Rights, what limits do you think the Constitution places on federal government power? If any at all, what are the limits? If none, what was the Constitution written for in the first place? ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [December 15, 2010, 8:13am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/2 "2010-12-15T08:13:27Z")
> [@Leaper](#): > > A libertarian blogger [asks this question of his liberal readers](http://www.theagitator.com/2010/12/14/an-honest-question-for-lefties/). As it’s a libertarian blog, I don’t expect a lot of answers from said liberals (just from sheer numbers, you understand), but I was curious as to what the many liberal (and heck, conservative) political thinkers here at the Dope would answer this question. > > You can read the post itself to get all the details of his question/argument (and suggested links that explicate his own POV), but basically, the question is this: other than the Bill of Rights, what limits do you think the Constitution places on federal government power? If any at all, what are the limits? Well, the Federal government only has the specific powers that the Constitution enumerates, and confers on it. Some of those powers are quite wide, and their precise ambit is a matter for decision by the courts. But, unless a particualr measure comes within the ambit of one of those powers, the federal government has no power to enact that measure. > [@Leaper](#): > > If none, what was the Constitution written for in the first place? AFAIK, the reason for the adoption of the Constitution was to give the federal level of government _more_ power than it previously had. ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [December 15, 2010, 10:59am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/3 "2010-12-15T10:59:01Z")
[QUOTE=The Constitution of the United States of America] Section 9 - Limits on Congress The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. (No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.) (Section in parentheses clarified by the 16th Amendment.) No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State. [/QUOTE] There you go. On the other hand: > [@](#): > > Section 8 - Powers of Congress > > The Congress shall have **Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and _general Welfare of the United States_** ; but all Duties, Imposts and Excises shall be uniform throughout the United States; > > To borrow money on the credit of the United States; > > **To regulate Commerce with foreign Nations, _and among the several States_, and with the Indian Tribes;** > > To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; > > To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; > > To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; > > To establish Post Offices and Post Roads; > > To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; > > To constitute Tribunals inferior to the supreme Court; > > To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; > > To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; > > To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; > > To provide and maintain a Navy; > > To make Rules for the Government and Regulation of the land and naval Forces; > > To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; > > To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; > > To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And > > **To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.** ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [December 16, 2010, 5:47am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/4 "2010-12-16T05:47:12Z")
Do you think a modern Yank has any reason to give a flying speck of dust–what property owners (who were substantially slavers) in the east coast states days of the Articles of Confederation thought about appropriate federal power? Because that’s who ratified the Tenth Amendment. Not anyone west of the Appalachians. Not anyone who worked for a living. Not anyone who grew up in the USA as a unified nation. Instead of assuming there’s a good reason for the Tenth today, look at where it comes from. ETA: And yes, that applies to the entire Bill of Rights, & the main articles of the Constitution. Instead of groveling before tradition, let’s consider the actual consequences of a given policy for the land we live in–and that land as we know it, not as some (relatively ignorant) self-important landowner terrorists in the age of bleeding as cure-all imagined it! ---
**Author:** ![Odesio](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/odesio/32/20003_2.png) [@Odesio](https://boards.straightdope.com/u/Odesio)\ **Post date:** [December 16, 2010, 6:17am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/5 "2010-12-16T06:17:53Z")
> [@foolsguinea](#): > > ETA: And yes, that applies to the entire Bill of Rights, & the main articles of the Constitution. Instead of groveling before tradition, let’s consider the actual consequences of a given policy for the land we live in–and that land as we know it, not as some (relatively ignorant) self-important landowner terrorists in the age of bleeding as cure-all imagined it! Was the inflammatory rhetoric above designed to avoid any pretense of serious discourse? If so, bravo. You’ve done an excellent job of poisoning the well. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [December 16, 2010, 6:29am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/6 "2010-12-16T06:29:40Z")
Seriously, I’m puzzled why I should care about the Tenth Amendment at all, beyond at best a sort of urgent need to repeal the stupid thing. Remember, the Tenth Amendment is not part of the basic structure of the Constitution. It’s an amendment, an add-on, a later modification. In fact, it could be argued that the Tenth is a vague attempt to undermine the Constitution proper. But in any case, the Tenth Amendment was proposed as a way to sell the Constitution to the east coast landowners who were in power under the previous government, the Articles of Confederation. No one from west of the Appalachians voted for it; no one who worked for a living; no one who had grown up in the USA as a nation. It was a sop to slavers & worse to let them think that things wouldn’t get too radical. Now, one could condemn the entire Bill of Rights, the entire Constitution before amendments, as a product of the same privileged class, & be correct. The difference is that some of those serve some rational purpose. The Tenth, on the other hand, is utterly a product of its particular era & the political concerns of that era. It doesn’t add one useful thing to the function of a modern US government. In fact, by encouraging split sovereignty, it would if taken seriously turn governing into an irritating game of wars over which government has a prerogative–undermining the ability to write laws even when those laws are useful or even vitally necessary. No, it’s time for the Tenth Amendment to go. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [December 16, 2010, 6:33am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/7 "2010-12-16T06:33:19Z")
And they were certainly terrorists and revolutionaries, of a privileged landowning class economically alien to most persons in today’s proletarian USA. Treating the product of their politics as immutable tradition is foolish & ridiculous, but thinking it has anything to do with what we today expect of our government, post-Andrew Jackson, post-Fourteenth Amendment, post-New Deal, is just pathetically laughable. All the Tenth does now is preserve local prerogative in the hands of the corrupt incompetent amateurs who populate state legislatures, at the expense of unified & rational law in the USA. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [December 16, 2010, 6:39am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/8 "2010-12-16T06:39:21Z")
I might in some universe be persuadable that federal democracy is somehow not going to bring about the end of life on Planet Earth; this is unlikely, but conceivable. Nothing will make me like the Tenth Amendment; it is insensible. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [December 16, 2010, 7:00am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/9 "2010-12-16T07:00:04Z")
> [@Leaper](#): > > . . . what was the Constitution written for in the first place? Your best source on that would be [_The Frozen Republic: How the Constitution is Paralyzing Democracy,_](http://www.amazon.com/Frozen-Republic-Constitution-Paralyzing-Democracy/dp/0156004941/ref=sr_1_1?s=books&ie=UTF8&qid=1292482783&sr=1-1) by Daniel Lazare. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [December 16, 2010, 7:17pm UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/10 "2010-12-16T19:17:45Z")
Crap. I stand by (most of) what I said, but spilling it across four posts of the first eight made it into a threadshit. Sorry. Go on. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [December 16, 2010, 7:21pm UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/11 "2010-12-16T19:21:02Z")
> [@foolsguinea](#): > > Seriously, I’m puzzled why I should care about the Tenth Amendment at all, beyond at best a sort of urgent need to repeal the stupid thing. Because that’s the key: until it’s repealed, it’s the law of the land, no? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [December 16, 2010, 9:53pm UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/12 "2010-12-16T21:53:58Z")
> [@foolsguinea](#): > > Crap. I stand by (most of) what I said, but spilling it across four posts of the first eight made it into a threadshit. Sorry. > > Go on. With all due respect, it wasn’t spreading it out that accomplished that. ++++ Proposition: There are limits. But over time, we’ve found it to be useful to have them be quite elastic, because we’ve needed to respond to problems not foreseen by the FF back in the late 1780s. In general, the Federal government is limited more by the rights guaranteed individual citizens than by the powers reserved to the states. The Tenth occasionally pops up in jurisprudence, e.g., in National League of Cities case, but as a practical limit on Fe3eral power, it tends to show up more in blogs and oratory than in actual legislative or jurisprudential activity. ---
**Author:** ![godix](https://avatars.discourse-cdn.com/v4/letter/g/278dde/32.png) [@godix](https://boards.straightdope.com/u/godix)\ **Post date:** [December 16, 2010, 10:41pm UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/13 "2010-12-16T22:41:21Z")
> [@foolsguinea](#): > > Seriously, I’m puzzled why I should care about the Tenth Amendment at all, beyond at best a sort of urgent need to repeal the stupid thing. Because until it is repealed, it should be treated and followed as much as the other amendments. When the nation went dry, we didn’t just go ‘Oh, that amendment doesn’t mean what it says it means, and why should we be limited by what those guys long ago thought anyway?’ We repealed the thing. Until we did so, it was the law of the land though. If the 10th really shouldn’t apply today, there’s a way of getting rid of it. Provided, of course, that 3/4 the states agree with you. Although, usually, I see this sort of intellectual dishonesty in arguments about the 2nd rather than the 10th. ---
**Author:** ![foolsguinea](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foolsguinea/32/14751_2.png) [@foolsguinea](https://boards.straightdope.com/u/foolsguinea)\ **Post date:** [December 17, 2010, 3:51am UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/14 "2010-12-17T03:51:02Z")
> [@Polycarp](#): > > With all due respect, it wasn’t spreading it out that accomplished that. So no respect at all then? Fair enough. 😉 > [@godix](#): > > Because until it is repealed, it should be treated and followed as much as the other amendments. When the nation went dry, we didn’t just go ‘Oh, that amendment doesn’t mean what it says it means, and why should we be limited by what those guys long ago thought anyway?’ We repealed the thing. Until we did so, it was the law of the land though. If the 10th really shouldn’t apply today, there’s a way of getting rid of it. Provided, of course, that 3/4 the states agree with you. Prohibition was very widely violated, though. If everyone had been happy teetotalers, would there have been a repeal? There won’t be a repeal until there is a strong movement of those who think the Tenth a bad idea. If simply ignoring it as an archaic pre-Reconstruction curiosity is not enough, then we have to be speaking out against it. I speak in very nasty terms about the generation who produced the Bill of Rights to make a point. They were not saints, nor Magi, not even a little bit. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [December 17, 2010, 3:27pm UTC](https://boards.straightdope.com/t/what-limits-does-the-constitution-place-on-the-federal-government/564216/15 "2010-12-17T15:27:25Z")
> [@The\_Other\_Waldo\_Pepper](#): > > Because that’s the key: until it’s repealed, it’s the law of the land, no? [A fairly useless part of it, however.](http://en.wikipedia.org/wiki/10th_Amendment#Judicial_interpretation) Few court decisions have been based on the 10th, and those few are regrettable ones, if not quite _Dred Scott_ regrettable. > [@](#): > > **Judicial interpretation** > > The Tenth Amendment, which makes explicit the idea that the federal government is limited only to the powers granted in the Constitution, is often considered to be a truism. In United States v. Sprague (1931) the Supreme Court asserted that the amendment “added nothing to the [Constitution] as originally ratified.” > > States and local governments have occasionally attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby, 312 U.S. 100, 124 (1941), reads as follows: > > The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers… > > **Forced participation or commandeering** > > The Supreme Court rarely declares laws unconstitutional for violating the Tenth Amendment. In the modern era, the Court has only done so where the federal government compels the states to enforce federal statutes. In 1992, in New York v. United States, 505 U.S. 144 (1992), for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment. The case challenged a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in the case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court, in a 6–3 decision, ruled that the imposition of that obligation on the states violated the Tenth Amendment. Justice Sandra Day O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (i.e., by attaching conditions to the receipt of federal funds, see South Dakota v. Dole), or through the commerce power (by directly pre-empting state law). However, Congress cannot directly compel states to enforce federal regulations. > > In 1997, the Court again ruled that the Brady Handgun Violence Prevention Act violated the Tenth Amendment (Printz v. United States, 521 U.S. 898 (1997)). The act required state and local law enforcement officials to conduct background checks on persons attempting to purchase handguns. Justice Antonin Scalia, writing for the majority, applied New York v. United States to show that the law violated the Tenth Amendment. Since the act “forced participation of the State’s executive in the actual administration of a federal program,” it was unconstitutional. > > **Commerce clause** > > According to the Tenth Amendment, the government of the United States has the power to regulate only matters delegated to it by the Constitution. Other powers are reserved to the states, or to the people (and even the states cannot alienate some of these). In modern times, the Commerce Clause has become one of the most frequently-used sources of Congress’ power, and thus its interpretation is very important in determining the allowable scope of federal government. > > In the 20th century, complex economic challenges arising from the Great Depression triggered a reevaluation in both Congress and the Supreme Court of the use of Commerce Clause powers to maintain a strong national economy. > > In Wickard v. Filburn (1942), in the context of World War II, the Court ruled that federal regulations of wheat production could constitutionally be applied to wheat grown for “home consumption” on a farm — that is, wheat grown to be fed to farm animals or otherwise consumed on the farm. The rationale was that a farmer’s growing “his own wheat” can have a substantial cumulative effect on interstate commerce, because if all farmers were to exceed their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market in wheat. > > In Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court changed the analytic framework to be applied in Tenth Amendment cases. Prior to the Garcia decision, the determination of whether there was state immunity from federal regulation turned on whether the state activity was “traditional” for or “integral” to the state government. The Court noted that this analysis was “unsound in principle and unworkable in practice,” and rejected it without providing a replacement. The Court’s holding declined to set any formula to provide guidance in future cases. Instead, it simply held “…we need go no further than to state that we perceive nothing in the overtime and minimum-wage requirements of the FLSA … that is destructive of state sovereignty or violative of any constitutional provision.” It left to future courts how best to determine when a particular federal regulation may be “destructive of state sovereignty or violative of any constitutional provision.” > > In United States v. Lopez 514 U.S. 549 (1995), a federal law mandating a “gun-free zone” on and around public school campuses was struck down because, the Supreme Court ruled, there was no clause in the Constitution authorizing it. This was the first modern Supreme Court opinion to limit the government’s power under the Commerce Clause. The opinion did not mention the Tenth Amendment, and the Court’s 1985 Garcia opinion remains the controlling authority on that subject. > > Most recently, the Commerce Clause was cited in the 2005 decision Gonzales v. Raich. In this case, a California woman sued the Drug Enforcement Administration after her medical marijuana crop was seized and destroyed by Federal agents. Medical marijuana was explicitly made legal under California state law by Proposition 215; however, marijuana is prohibited at the federal level by the Controlled Substances Act. Even though the woman grew the marijuana strictly for her own consumption and never sold any, the Supreme Court stated that growing one’s own marijuana affects the interstate market of marijuana. The theory was that the marijuana could enter the stream of interstate commerce, even if it clearly wasn’t grown for that purpose and it was unlikely ever to happen (the same reasoning as in the Wickard v. Filburn decision). It therefore ruled that this practice may be regulated by the federal government under the authority of the Commerce Clause.