Not Much: What the Feds are Authorized to Do Under the Constitution

By: Mike Maharrey

The federal government is involved in almost every area of our lives. But it wasn’t supposed to be that way.

Tench Coxe was a prominent supporter of the Constitution. During the ratification debate, he gave us a long list of things the federal government wasn’t empowered to do.

That list is illuminating.

It will be found, on a careful examination, that many things, which are indispensibly necessary to the existence and good order of society, cannot be performed by the fœderal government, but will require the agency and powers of the state legislatures or sovereignties, with their various appurtenances and appendages.

1st. Congress, under all the powers of the proposed constitution, can neither train the militia, nor appoint the officers thereof.

2dly. They cannot fix the qualifications of electors of representatives, or of the electors of the electors of the President or Vice-President.

3dly. In case of a vacancy in the senate or the house of representatives, they cannot issue a writ for a new election, nor take any of the measures necessary to obtain one.

4thly. They cannot appoint a judge, constitute a court, or in any other way interfere in determining offences against the criminal law of the states, nor can they in any way interfere in the determinations of civil causes between citizens of the same state, which will be innumerable and highly important.

5thly. They cannot elect a President, a Vice-President, a Senator, or a fœderal representative, without all of which their own government must remain suspended, and universal Anarchy must ensue.

6thly. They cannot determine the place of chusing senators, because that would be derogatory to the sovereignty of the state legislatures, who are to elect them.

7thly. They cannot enact laws for the inspection of the produce of the country, a matter of the utmost importance to the commerce of the several states, and the honor of the whole.

8thly. They cannot appoint or commission any state officer, legislative, executive or judicial.

9thly. They cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices; building light houses, public wharves, county gaols, markets, or other public buildings; making sale of state lands, and other state property; receiving or appropriating the incomes of state buildings and property; executing the state laws; altering the criminal law; nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive or judicial, civil or ecclesiastical.

10thly. They cannot interfere with, alter or amend the constitution of any state, which, it is admitted, now is, and, from time to time, will be more or less necessary in most of them.

The proper investigation of this subject will require more of your time than I can take the liberty of engaging at present. I shall therefore leave what I have now written to your honest and cool reflection.