Enumerated Powers

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ENUMERATED POWERS

ENUMERATED POWERS are powers given to the federal government by the terms of the U.S. Constitution. The question whether the Constitution also should be understood to give the federal government unenumerated powers was the central issue in nineteenth century constitutional disputations. Under Article II of the Articles of Confederation, the Confederation Congress's powers were limited to those explicitly granted by that document. This limitation on the federal legislature's powers, when coupled with the extreme difficulty of changing a constitution whose amendment required the unanimous agreement of the thirteen states, stymied several nationalist initiatives in the period before the adoption of the Constitution.

The Philadelphia convention that drafted the U.S. Constitution in 1787 omitted any provision echoing Article II of the Articles of Confederation. However, several sections of the proposed constitution, particularly the list of congressional powers in Article I, section 8, gave the impression that the new federal government was to have only the powers it was expressly delegated. During the course of the ratification debates of 1787–1790, several Federalist spokesmen—most notably Governor Edmund Randolph of Virginia and Charles C. Pinckney of South Carolina—assured this principle would be followed.

When the new federal government was instituted, President George Washington found his cabinet sharply divided on the issue of unenumerated powers. Secretary of the Treasury Alexander Hamilton, who had joined with John Jay and others in offering a highly nationalist interpretation of the Constitution to the New York ratification convention, argued that both the Congress and the president could claim broad powers that, although not explicitly mentioned in the Constitution, naturally inhered in the legislative and executive branches. Secretary of State Thomas Jefferson, on the other hand, insisted on the reading of the constitution successfully offered by Attorney General Randolph in the Virginia ratification convention. Jefferson cited the Tenth Amendment to underscore his argument. A similar debate in the House pitted Federalist Representative Fisher Ames against James Madison.

Washington, whose experience in the Revolution had convinced him of the necessity of Hamilton's program, sided with Hamilton. In the following decade, Chief Justice John Marshall authored a number of Supreme Court opinions endorsing the Hamiltonian-nationalist reading of the Constitution; the most important of these, McCulloch v. Maryland, elicited Madison's observation that the Constitution never would have been ratified if people had seen McCulloch coming.

Madison's last act as president in 1817 was to veto the Bonus Bill, legislation providing for significant federal expenditures on public works. Madison instructed congressional leaders among his fellow Jeffersonians that strict construction must remain their guiding principle and that an amendment authorizing federal expenditures of this type should precede any such expenditure. President Andrew Jackson adhered to this principle, notably in his Bank Bill Veto Message, as did his Democratic successors (most of the time). Yet, while Democratic electoral success demonstrated the popular appeal of the doctrine of enumerated powers, the antebellum period saw the parallel growth of a nationalist reading of the Constitution in the Hamiltonian tradition. The divergence between these two conceptions of the federal relationship, in conjunction with the ultimate identification of each of them with a great sectional political party, formed the constitutional predicate for the Civil War.

With the triumph of the Republican Union in 1865, the doctrine of enumerated powers went into eclipse. It still figured in constitutional argumentation, but the main line of constitutional reasoning came to hold that the federal government had essentially all powers that were not explicitly denied it by the constitution. This conception was precisely that which Hamilton had offered in cabinet debate in the 1790s.