Saturday, September 23, 2023

McCulloch v. Maryland: Federal Power vs. State Power

McCulloch makes clear a point we have already discussed a few times--the National Government was created as a government of enumerated powers--i.e.,"it can exercise only the powers granted to it" by the Constitution.

To make this even more clear, the Tenth Amendment provides: "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."

In the Federalist Papers No. 45, James Madison said this about delegated versus reserved powers:

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.... 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.

So if there are 100 units of governmental power and the Constitution delegates 10 units of power to the Federal Government, the states reserve the remaining 90 units of power.

But what happens if the Supreme Court consistently interprets the Constitution in ways which expand the powers of the Federal Government. Suppose that, as a result of these interpretations expanding national power, the Federal Government ends up with 99.5 units of power. How much power now is reserved to the states and the people under the Tenth Amendment?

Federalism is a zero-sum game in which every judicial win for the delegated power of the feds is a loss for the reserved powers of the states and the people.

As we discuss these cases broadly expanding federal power to regulate and to tax and spend, try to picture how this depletes the reserved powers of the states and the people under the Tenth Amendment. And ask yourselves whether the current picture of respective governmental power resembles the one drawn by Madison in Federalist 45.

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