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ArtI.S1.2.1 Origin of Limits on Federal Power

Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

The Legislative Vesting Clause begins by providing that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” 1 The decision of the Framers of the Constitution to limit Congress’s powers to those “herein granted” —or, in other words, those specifically enumerated in the Constitution—reflects their experience as colonists living under the rule of the powerful British Parliament of the 1700s. The English jurist William Blackstone, writing only two decades before the American Revolution, described the British Parliament as possessing wide-ranging powers to enact legislation affecting each individual’s life, liberty, and property2 that no other governmental authority could effectively amend or repeal.3 Although the British King could give his assent to laws, exercise some limited legislative powers in making treaties, and enforce the laws, the King could not make law without Parliament.4 As a result, only Parliament had the power to undo or change the laws it had made, leaving the British people either to petition Parliament for changes to undesirable laws or take the extreme step of overthrowing their government.5

The Framers rejected this form of “parliamentary supremacy,” believing that a national legislature should not exercise the “absolute despotic power” 6 of government without limitation.7 Indeed, scholars have noted that some of the major grievances prompting the American Revolution concerned various Acts of the British Parliament that violated the colonists’ rights (e.g., the right to trial by jury), which “were guaranteed specifically to the colonists by means of colonial charters.” 8 Consequently, to preserve individual liberty, the Framers specifically limited the federal legislative power to those powers expressly mentioned in the Constitution and the power to “make all Laws which shall be necessary and proper” to carry out the Federal Government’s limited powers.9 As James Wilson argued during the Pennsylvania ratification convention, “to control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states.” 10

The Legislative Vesting Clause and the other text of Article I thus served as an ostensible limitation on Congress’s legislative power. Nonetheless in the post-Convention debates over ratification of the Constitution, Anti-Federalists raised concerns that these textual limitations would fail to prevent Congress from growing too powerful.11 In an effort to assuage these concerns, Alexander Hamilton, who supported ratification of the Constitution, argued that the courts could enforce the Constitution’s limitations on Congress’s powers by declaring a legislative act in excess of such powers to be void.12 And indeed, less than two decades after the ratification of the Constitution, the Supreme Court asserted its authority to review the constitutionality of legislative acts, and to declare void those provisions of legislation that violated the Constitution, in a case or controversy properly before the Court.13 Thus, the Legislative Vesting Clause of the U.S. Constitution reflects a departure from the British legal tradition of “parliamentary supremacy” because it provided external limitations on the power of Congress.

U.S. Const. art. I, § 1. back
1 William Blackstone, Commentaries 159–60 (Philadelphia 1893) (1768) ( “[The Parliament] hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations. . . . All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal.” ). But see id. at 335–36 (suggesting that the Crown’s powers, including collecting taxes and commanding a standing army, indicated that the “real power of the crown has not been too far weakened by any transactions in the last century” ). back
Id. at 160 ( “True it is, that what the parliament doth, no authority upon earth can undo . . . .” ). back
The Federalist No. 47 (James Madison) ( “The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which when made have, under certain limitations, the force of legislative acts . . . . [But] [t]he magistrate in whom the whole executive power resides cannot of himself make a law . . . ” ). The understanding that the King could not both make and enforce laws governing the rights and duties of private individuals had a lengthy pedigree in the British common law tradition, with “ancient roots in the concept of the ‘rule of law’” (i.e., the notion that the King, too, was subject to the statutory and common law of the land when exercising his powers). See Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. 43, 66–76 (2015) (Thomas, J., concurring) (discussing the history of the separation of executive and legislative power in the British common law tradition). back
1 Blackstone, supra note 2, at 160 ( “No human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation . . . ” ). back
Id. at 159. back
See, e.g., The Federalist No. 83 (Alexander Hamilton) ( “[T]he power of Congress . . . shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretention to a general legislative authority; because an affirmative grant of special powers would be absurd as well as useless, if a general authority was intended.” ); The Federalist No. 48 (James Madison) ( “[I]n a representative republic, where the executive magistracy is carefully limited both in the extent and the duration of its power; and where the legislative power is exercised by an assembly . . . it is against the enterprising ambition of [the legislative] department, that the people ought to indulge all their jealousy and exhaust all their precautions.” ); 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 95 (2d ed. 1836) (James Madison) (stating that the “powers of the federal government are enumerated” ). back
Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1699 (2012). back
U.S. Const. art. I, §§ 1, 8. back
2 Elliot, supra note 7, at 432. back
Brutus No. I (Oct. 18, 1787), reprinted in The Debate on the Constitution: Federalist and Anti-Federalist Speeches, Articles and Letters During the Struggle Over Ratification, Part One: September 1787–February 1788 (Bernard Bailyn ed., 1993) ( “The powers of the general legislature extend to every case that is of the least importance—there is nothing valuable to human nature, nothing dear to freemen, but what is within its power.” ). back
The Federalist No. 78 (Alexander Hamilton) ( “Limitations [on legislative power] can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” ). back
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–77 (1803) ( “The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. . . . Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.” ). Further checks on congressional power in the Constitution include the President’s qualified veto power over legislation. See 2 The Records of the Federal Convention of 1787, at 52–53 (Max Farrand ed., 1966) (Madison’s notes, July 19, 1787) (statement of Mr. Gouverneur Morris) (arguing that the President’s veto power would permit the President to serve as the “guardian of the people” against “[l]egislative tyranny” ). back