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Delegated Powers are Limited Powers of Government

Delegated powers are, in the nature of things, limited powers. Even the Necessary and Proper Clause is no exception to this rule.

Last Updated on August 11, 2021 by Constitutional Militia

Delegated powers are, in the nature of things, limited powers. For instance, a grant of “all legislative power” or “all judicial power” is limited to such power as is “legislative” or “judicial” in character. Even a grant of “all power” is limited to the power the grantor actually enjoys the privilege to delegate. For that reason, the very existence of the Constitution establishes that the powers the General Government are not only delegated, but also definite, and limited by their very definition[1]—and can extend only to those powers WE THE PEOPLE have the competence to grant. For example, inasmuch as “tyranny” is a set of powers—including, for instance, the power to wantonly kill innocent human beings—that no one may claim a right to exercise, even WE THE PEOPLE could not delegate tyrannical powers to their government.[2] And the Supreme Court has recognized as much:

“There are . . . rights in every free government beyond the control of the State . . . there are limitations on [governmental power] which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist. . . .”[3]

Therefore the Constitution contains no undefined and general powers, that some theoretical government might possess[4]—or a fortiori that some actual foreign governments happen to exercise. Neither could it contain any independent and unmentioned power[s]”—for that would “conflict with the doctrine that this is a government of enumerated powers”.[5] Instead, the General Government’s every claim of power must find direct support in a constitutional grant, “in terms or by necessary implication.”[6] And “the burden of establishing a delegation power to the United States . . . is upon those making the claim.”[7]

Delegated powers are, in the nature of things, limited powers. The Necessary and Proper Clause is no exception to this rule. That Clause authorizes Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested by this Constitution in the Government of the United States.” Thus on its face it is “not the delegation of a new and independent power, but simply provision for making effective [the enumerated constitutional] powers”[1]—and thereby depends upon and can operate only within the ambit of those powers. The Necessary and Proper Clause cannot inflate any other “Power vested by th[e] Constitution” beyond that power’s otherwise legitimate scope within the letter and spirit of the Constitution[2]—because the “Laws” it sanctions must be “necessary and proper for carrying into Execution” such other power as it exists, not as a specious reading of the Necessary and Proper Clause might extend it. Therefore, the Necessary and Proper Clause does not license—but, properly construed, prohibits—the limitless implication of new powers by “conjecture, supposition, or mere reasoning on the meaning or intention of the writing” in the Constitution.[3] As the Supreme Court ruled long ago, “[l]et the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with letter and the spirit of the constitution, are constitutional.”[4] That is, “Laws which shall be necessary and proper” depend upon “the scope of the [C]onstitution,” its “prohibit[ions],” and its “letter and spirit” outside and independent of the Necessary and Proper Clause itself. All this, of course, is in keeping with what the Tenth Amendment makes strikingly clear, that the only powers the General Government may exercise are those “delegated . . . by the Constitution”. And because the General Government is . . . one of enumerated powers,”[5] there necessarily can be no inherent governmental authority of any kind: “[P]owers not granted are prohibited.”[6]

Footnotes:

1.) Kansas v. Colorado, 206 U.S. 46, 88 (1907). Accord, Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247 (1960).

2.) Reid vs. Covert, 354 U.S. 1, 20-22 (1957) (opinion of Black, J.).

3.) Rhode Island v. Massachusetts, 37 U.S. (12 Pet) 657, 273 (1838).

4.) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819). 

5.) Ibid. at 405 (emphasis supplied).

6.) United States v. Butler, 297 U.S. 1, 68 (1936).

Nothing is better settled than that, as to what the Supreme Court curiously calls “fundamental rights”:[1]

“The very purpose of [the] Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”[2]

Footnotes:

1.) One would think that all constitutional rights are fundamental rights, by virtue of their recognition in “the supreme Law of the Land.” U.S. Const. Art VI, cl. 2. But the Supreme Court’s reasoning is apparently more subtle. In any event, United States v. Carolene Products Co., 304 U.S. 144, 152 & n.4 (1938), appears to be the origin for the Court’s specious dichotomy between “economic” and “social” rights, which supposedly are entitled to only a minimum of constitutional protection, and “fundamental rights,” which are entitled to “more exacting judicial scrutiny.” See generally, Dr. Edwin Vieira, Jr., “Rights and the United States Constitution: The Declension from Natural Law to Legal Positivism,” 13 Georgia Law Review 1447 (1979). And see Lynch v. Household Finance Corp., 405 U.S. 538, 542-52 (1972).


2.) West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943).

1.) See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-80 (1803); Kansas v. Colorado 206 U.S. 46, 89-90(1907); Myers v. United States, 272 U.S. 52, 230-31 (1926) (McReynolds, J., dissenting).

2.) See J. Locke, An Essay Concerning the True Original Extent, and End of Civil Government (P Laslett ed. 1960), § 199.

3.) Loan Association v. City of Topeka, 87 U.S. (20 Wall) 655, 633 (1875).

4.) Kansas v. Colorado, 206 U.S. 46, 81 (1907); Myers v. United States, 272 U.S. 52, 230-31 (1926) (McReynolds, J., dissenting).

5.) Kansas v. Colorado, 206 U.S. 46, 88, 89 (1907).

6.) Ibid. At 83-84; Downes v. Bidwell, 182 U.S. 244, 288 (1901) (White, J., concurring).

7.) Bute v. Illinois, 333 U.S. 640, 653 (1948).

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