Powers Delegated to Congress by
the United States Constitution

The Constitution of the United States specifies the powers of Congress very clearly. These are called the "enumerated" powers of Congress, which is to say the "listed" powers and are found in Article 1, Section 8.

"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 Offences 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." (emphasis mine)

It is important to note the exact wording. The Constitution states that "Congress shall have power to..." and then presents a list. There is nothing to indicate that Congress has any power outside the brief list of fairly specific duties. It does not add, "and anything else you think is a good idea." It does provide Congress the ability to make other laws, but only those necessary to carry out the "foregoing powers."

James Madison clarified that the powers of Congress are limited to those enumerated: "[T]he powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction." (1)

If the Constitution does not specifically allude to some power or prerogative, this does not mean that there is no legal owner of that right. The Tenth Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." All the indefinite number of powers not listed in the Constitution are under the jurisdiction of the states or the people! When a federal government attempts to act outside the boundaries given to it by the Constitution, that branch engages in an usurpation of power.

As James Jackson presented it to the First Congress, "We must confine ourselves to the powers described in the Constitution, and the moment we pass it, we take an arbitrary stride towards a despotic Government."

Enumerated Powers as Opposed to Indefinite Powers

America's Founders were very intent on limiting the central government. To this end, they carefully proscribed boundaries for the federal government. This is also the reason behind the 3 branches of government, with their corresponding checks and balances. The purpose was to retain the utmost of rights and powers in the hands of the people themselves or their states. It is inconsistent with historical fact to claim that Congress was meant to have any authority besides that carefully delineated. The Supreme Court confirmed in 1819 that, "This Government is acknowledged by all to be one of enumerated powers." (Mcculloch v Maryland)

In Federalist Paper #45, James Madison wrote about the contrast between the enumerated powers of federal government and the indefinite powers of the states. "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

Real Meaning of the "General Welfare" Clause

There are those individuals who aim to increase the powers of Congress beyond what the Constitution delineates. These people like to say that actually, whatever entitlement or program or bill they support is included in the Constitution under one of those vague phrases such as "general welfare." This is a very facile argument, easily disproven by any number of contemporary accounts.

James Madison wrote, "With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

Furthermore, "If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions." (2)

Thomas Jefferson concurred when he wrote that to construe the phrase general welfare as to give "a distinct and independent power to do any act they please which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please… Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers and those without which, as means, these powers could not be carried into effect.” (3)

In his private correspondence, Jefferson also wrote: “Our tenet ever was . . . that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action.” (4)

Despite his philosophical differences with Jefferson, Alexander Hamilton agreed: "If Congress can employ money indefinitely to the general welfare… The powers of Congress would subvert the very foundation, the very nature of the limited government established by the people of America."

Sophistry, Usurpation, and the "General Welfare"

The Founding Fathers knew full well that men in Congress would always wish to appropriate more powers for themselves and their cronies than the Constitution permits. They anticipated the equivocation and sophistry whereby tyrants would attempt to alter and subvert the Constitution to suit their own means.

Thomas Jefferson warned that this was already happening before his own eyes:
“Aided by a little sophistry on the words “general welfare,” [the federal branch claim] a right to do not only the acts to effect that which are specifically enumerated and permitted, but whatsoever they shall think or pretend will be for the general welfare.” (5)

“This phrase,… by a mere grammatical quibble, has countenanced the General Government in a claim of universal power. For in the phrase, ‘to lay taxes, to pay the debts and provide for the general welfare,’ it is a mere question of syntax, whether the two last infinitives are governed by the first or are distinct and coordinate powers; a question unequivocally decided by the exact definition of powers immediately following.” (4)

The problem, as generally with equivocation, is that this argument is fraught with logical and even grammatical errors.Even under its most inclusive and general reading, Congress is not permitted to do anything in the name of the general welfare but collect taxes, duties, imposts, and excises. "In like manner they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose." (3)

Nor does such an interpretation make rational sense. If Congress could do anything just because it might be good for the public, its powers would be indefinite, and there would have been no purpose for the enumerated powers. Jefferson rebuts the notion that the framers of the Constitution would have made such a foolish, self-contradictory mistake.  "These words only express [...], and not to give them the unspecified also; or why any specification? They could not be so awkward in language as to mean, as we say, ‘all and some.’ And should this construction prevail, all limits to the federal government are done away. (6)

Final Thought:
"If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress... Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America." - James Madison

Citations

1. James Madison, Speech to the Virginia Ratifying Convention, June 6, 1788, Elliot's Debates
2. James Madison, "Letter to Edmund Pendleton," January 21, 1792 in The Papers of James Madison, vol. 14, Robert A Rutland et. al., ed (Charlottesvile: University Press of Virginia,1984).
3. Thomas Jefferson, Opinion on National Bank, February 15, 1791. ME 3:148
4. Thomas Jefferson, letter to Albert Gallatin, 1817. ME 15:133
5. Thomas Jefferson to William Branch Giles, 1825. ME 16:147
6. Thomas Jefferson to Spencer Roane, 1815. ME 14:350