Congress Can Only Do What the Constitution Lists and Madison Said So

I have a simple proposition, and I want you to try to break it. If I hand you a written list of eighteen things you are permitted to do, and I tell you that you may do those and the things necessary to carry them out, have I given you the right to do anything you please?

Of course not. A list that covers everything is not a list. It is a blank check with a fancy heading. Yet that is, in practice, how a great deal of modern lawmaking treats Article I, Section 8 of the Constitution: eighteen clauses of carefully chosen words, read as if the framers had simply been clearing their throats. Today I want to defend the old-fashioned view, that the list means what it says, and to do it the way a lawyer would, with premises, an honest hearing for the other side, and a test you can use at your own kitchen table.

The thesis

The Constitution creates a national government of delegated, limited, enumerated powers. Congress may act only where the Constitution gives it authority. Everything else belongs to the states or to the people. That is not a Republican slogan, and it is not a trick of the Tea Party era. It is the structure on the face of the document, and the men who sold it to the country said so repeatedly.

The numbered argument

1. The text begins with a grant, not a blank. Article I, Section 1 says "All legislative Powers herein granted shall be vested in a Congress of the United States." Notice two words: herein granted. Congress does not hold all legislative power. It holds the powers this document grants.
2. Section 8 then lists them. There are eighteen clauses. Congress may lay and collect taxes, borrow money, regulate commerce with foreign nations, among the states and with the Indian tribes, establish uniform rules of naturalization and bankruptcy, coin money, punish counterfeiting, establish post offices and post roads, grant patents and copyrights, create lower federal courts, define and punish piracies, declare war, raise and support armies, provide and maintain a navy, make rules for the armed forces, call forth and organize the militia, govern the seat of the government, and, in the last clause, "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers."
3. If the list could be ignored, nobody would have written it. A drafting convention that spent a summer in Philadelphia choosing words did not enumerate eighteen powers in order to confer a nineteenth, unlimited one. The canon that every word in a document should do work is as old as the common law.
4. The Tenth Amendment says so in plain English. Ratified in 1791 as part of the Bill of Rights, it reads: "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." The sentence has no point if the delegated powers are infinite.
5. The ratifiers were told it would work that way. In Federalist No. 45, James Madison wrote that "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." Few and defined. He was not whispering this to friends. He was telling the voters of New York in a newspaper.
6. The Ninth Amendment backs it up. Rights not listed are not thereby lost. Together, the Ninth and Tenth make the constitutional picture: a government with a list, and a people with a reservoir.

If those premises hold, the conclusion follows: when Congress passes a law, the first question is not "Is this a good idea?" but "Which power on the list authorizes it?"

Madison in the 1790s: the argument gets tested

Theory is easy. The first Congress had to put it into practice, and Madison, the father of the Constitution, was in the room.

In early 1791, Alexander Hamilton, the Treasury Secretary, proposed a national bank. Madison, then a congressman from Virginia, opposed the bill in the House. There was no clause that said "Congress may charter a bank," he argued, and the "necessary and proper" clause could not be stretched to cover anything useful. If Congress could do whatever seemed convenient to carry out a power, the list would dissolve. President Washington asked his cabinet for written opinions. Thomas Jefferson agreed with Madison and read "necessary" as meaning indispensable. Hamilton answered that "necessary" meant needful or useful, and that a government with a power must have the means to exercise it. Washington sided with Hamilton and signed the bank bill in February 1791.

That is the first great constitutional argument in American history, and it never ended. The Supreme Court eventually took Hamilton's side in McCulloch v. Maryland (1819), where Chief Justice John Marshall wrote that if the end is legitimate and within the scope of the Constitution, all means that are appropriate and plainly adapted to that end, and not prohibited, are constitutional. But look at what Marshall did not say. He said the end has to be a legitimate one within the Constitution. He did not say Congress could pursue any end it liked. The enumeration still did its work, and the argument has been about how far the means may run ever since.

Madison made a related point about spending. In January 1794 the House debated money for French refugees who had fled to Baltimore from the unrest in Saint-Domingue. Madison objected, saying he could not lay his finger on the article of the Constitution that gave Congress the right to spend its constituents' money on objects of benevolence. And in March 1817, on his last full day as President, Madison vetoed the "Bonus Bill," a plan to fund roads and canals, on the ground that the Constitution did not authorize it. A man who helped write the thing was still enforcing the list in the last hours of his presidency.

The rival reading, stated fairly

Hamilton's side was not stupid, and the modern version of it is the strongest argument against my position. It goes like this.

The Constitution's phrase "provide for the common Defence and general Welfare" is a power in itself. The general-welfare clause lets Congress spend on anything that serves the national interest, subject only to Congress's own judgment. Hamilton argued that in his 1791 Report on Manufactures. The Supreme Court endorsed the broad reading of the spending power in United States v. Butler in 1936 (while still striking down the farm program at issue), and the spending power has been wide ever since. Madison, by contrast, argued that the general-welfare words were simply a summary of the purposes behind the list that followed, not a separate authorization. Madison and Jefferson versus Hamilton: the argument was alive from the beginning.

The second prong is practical. The founders lived in a country of four million people along the Atlantic coast. We live in a continental economy of interconnected markets, where a fire in one state's warehouse can ripple through the supply chain of another. Problems cross state lines. Surely, the objection goes, a government that cannot address national problems with national tools is a government that cannot function. And the Constitution is not a suicide pact; Marshall himself said that it is "a constitution we are expounding," meant to endure.

The answer in four parts

First, the list is not tiny. Madison's few and defined powers include taxation, commerce among the states, the armed forces, foreign affairs, money, the mails, patents, courts, and bankruptcy. That is the machinery of a continental nation. Conservatives who defend enumerated powers are not asking for the Articles of Confederation. They are asking Congress to pick one of the eighteen.

Second, the Constitution has a built-in method for new powers, and it is an amendment. Article V provides the way. When the country wanted a national income tax, it passed the 16th Amendment in 1913. When it wanted a national ban on alcohol, it passed the 18th Amendment in 1919, and when it changed its mind, it passed the 21st in 1933 to repeal it. Think about that. The generation that wanted Prohibition understood that a national alcohol policy required a new grant of power. Contrast that with how the drinking age was set in 1984, which we describe in The Drinking Age Story Shows How Washington Buys Control of the States: through a spending condition, with no new power. If the amendment process feels too hard, that is a feature. A power that cannot win three-fourths of the states probably should not be exercised by Congress alone. See Article V Explained, and the Amendment That Took More Than 200 Years for how the process works.

Third, "modern problems" are an argument, not a power. Every generation has believed its problems were unprecedented. The question is who decides, and the Constitution's answer is that where the need is real and the power is on the list, Congress acts, and where the need is real and the power is not on the list, the states act, or the country amends. The need does not create the authority.

Fourth, courts have, at times, enforced the list. For decades after 1937 the Court seemed to treat the commerce power as nearly unlimited, most vividly in Wickard v. Filburn (1942), which we cover in A Farmer's Wheat Crop and the Long Fight Over the Commerce Clause. Then, in United States v. Lopez (1995), the Court struck down the Gun-Free School Zones Act of 1990 as beyond the commerce power, the first such ruling in decades. United States v. Morrison (2000) did the same with part of the Violence Against Women Act. And in NFIB v. Sebelius (2012), the Court held that Congress could not use the commerce power to compel people to buy a product, though it upheld the mandate as a tax. In other words, the principle has life in it.

Republicans are not innocent

Honesty requires that I turn the lens on our own side. Republican Congresses and presidents have not been strict constructionists when it was inconvenient. The No Child Left Behind Act, signed by President George W. Bush in January 2002, put federal accountability measures into local schools. The Medicare prescription-drug benefit, signed in December 2003, created a vast new entitlement. Fiscal hawks and libertarians inside the party have complained about both, which is one reason this fight shows up in our look at What Libertarians Teach Conservatives and Where the Two Part Ways. The enumerated powers are not a partisan weapon. They are a standard, and a standard that only applies to the other party is no standard.

And the other side does the same. The party that cheers enumerated powers when it is in the minority tends to lose interest once it has the votes. The only reliable fix is a citizen who asks the question regardless of who is asking for the power.

The test you can run yourself

Here is a practical tool. Since 2011, the House of Representatives has required each bill to include a "constitutional authority statement" in which the sponsor names the power in the Constitution that supports the bill. You can read those statements for free on Congress.gov. Next time a bill makes the news, pull it up and run this four-step check.

1. Find the cited power. Does the statement name a real clause? "The Constitution" or "the general welfare" with no more detail is a yellow flag.
2. Match the clause to the action. If the clause is the commerce power, is the bill regulating commerce, or is it regulating something that merely touches it?
3. Ask whether it is a means or an end. Is the bill carrying out one of the eighteen powers, or is it pursuing a new goal and borrowing a clause to dress it up?
4. Ask who else could do it. If a state, a town, a church or a family could handle the matter, the burden on Washington is heavier.

For a fuller test, A Five-Question Constitutional Test You Can Run on Any Federal Law does the same job in more detail, and Congress Should Write the Laws, and Other Radical Ideas From Article I explains what a Congress that took the list seriously would look like. If you want the broad case for the position, The Hardest Questions About Limited Government, Answered Straight takes on the toughest objections, and the debate over spending is covered in Why Spending Restraint Keeps Losing in Washington, Whoever Is in Charge. To see how your own representatives vote on bills, use our /politics/votes/ page.

The bottom line

• The Constitution gives Congress eighteen listed powers in Article I, Section 8, and the Tenth Amendment reserves the rest. A list that has no end is not a list.
• Madison said in Federalist No. 45 that the federal powers are few and defined, and he spent his career enforcing that view, from the bank fight of 1791 to his veto of the Bonus Bill in 1817.
• The rival reading is real, and the Supreme Court has often sided with a broad one. The honest answer is that the argument is about where the line sits, not whether there is one.
• If a power is needed and is not on the list, the Constitution provides a remedy: Article V. Use it, instead of stretching the words.
• Make it a habit. When a bill is in the news, read the constitutional authority statement on Congress.gov and ask which power it claims.