26 Pages Posted: 4 Jan 2012
Date Written: 2003
The U.S. Constitution enumerated federal powers, but not reserved state powers --- precisely because the latter were so vast. During the ratification controversy, however, spokespersons for the Constitution were pressured to enumerate those powers that would remain within the exclusive province of the states. Accordingly, many advocates of the Constitution did so, and together their lists of reserved state powers form a consistent whole.
This article collects the enumerations of powers represented to remain within exclusive state authority. Significantly, the enumerations include activities that the Founders understood had interstate "spillover" effects --- showing that the existence of such effects did not necessarily imply federal jurisdiction.
Further, the Founders' enumerations show that expansive modern interpretations of the Constitution's Taxation, Commerce, and Property Clauses are simply not historically viable.
Keywords: constitution, states rights, tenth amendment, reserved powers, original intent, original meaning, original understanding
JEL Classification: K1, K10, K19
Suggested Citation: Suggested Citation
Natelson, Robert G., The Enumerated Powers of States (2003). Nevada Law Review, Vol. 3, p. 469, 2003. Available at SSRN: https://ssrn.com/abstract=1979018
By Kurt Lash