Constitution Lectures 3: The Powers of Government (HD version)
Articles Blog

Constitution Lectures 3: The Powers of Government (HD version)

August 25, 2019


Welcome to Part 3 of our lecture series on
the Constitution. If you haven’t already watched Parts 1 and 2, I strongly recommend
you do so. A government is nothing without powers. In
the United States, it is our Constitution that creates the government and gives it its
powers. In order to understand the Constitution and our system of laws, it is vital that we
understand what these powers are and how they should be applied. First, the Constitution sets up our Federal
government under the Doctrine of Separation of Powers. Related to this is the Doctrine
of Nondelegation, meaning the powers from one branch of government cannot be delegated
or transferred to another. For example, Article I Section 1 clearly states
that “All legislative Powers herein granted shall be vested in Congress,” and not any
other body. Also, Congress is given no power to delegate or transfer their powers. It is
ALL legislative powers, without exception. So, for example, Congress is given the power
to declare war; they do NOT have the Constitutional authority to delegate that power to the President. The Constitution is constructed this way.
Article I defines the Legislative branch, creates Congress, and grants the legislative
powers specifically and solely to Congress. Article II defines the Executive branch, creates
the office of the Presidency, and vests executive power in the President. As part of his duties,
he may create departments, assign department heads, and delegate powers to them so that
he doesn’t have to take care of every little detail himself. He can do this without running
afoul of the Nondelegation Doctrine because these departments and their heads are part
of the Executive branch. And finally, the Judicial Branch is defined
in Article III and Judicial power is vested in a Supreme Court and any lower courts that
Congress might create. These three branches wholly comprise all of the power of the Federal
government. Another very important doctrine regarding
the powers of government is the Doctrine of Enumerated Powers. This doctrine states that,
in order for the Federal government to have a power, it must be given that power by the
Constitution; in other words, all powers must be enumerated. This was confirmed by the Supreme Court in
McCulloch v. Maryland: “This government is acknowledged by all, to be one of enumerated
powers. That principle is now universally admitted.” There just wasn’t any doubt
about that when the Constitution was ratified, or for decades after. In case you’re wondering if anything has
changed, in 1995 in US vs. Lopez, the Supreme Court ruled, “We start with first principles.
The Constitution creates a Federal Government of enumerated powers.” If a power is not
granted to the Federal government, they do not have the power—both then and now. The enumerated powers of Congress are listed
in Article I Section 8. This is a list of 18 powers granted to the Federal government.
Keep in mind that legislation is the start of all government activity; the Executive
branch cannot execute a law until it is first passed by Congress, and the courts cannot
decide on a law until it has been executed and brought to court. So Article I Section
8 defines all of the things the Federal government has the power to do. We won’t go over the
list here, but specific powers will be the subject of future lectures. These powers are restricted by Article I Section
9. This prevents the government from doing things such as restricting habeas corpus or
making an ex post facto law. Habeas corpus means that the government cannot detain someone
without judicial review. Ex post facto means that a law cannot be applied to someone who
committed the act before the law restricting it was passed. So, the government can do anything
in Article I Section 8, UNLESS in so doing it violates the restrictions in Article I
Section 9. These powers are further restricted by the
Bill of Rights. The Bill of Rights grants no powers to the government, but it does place
further restrictions on its powers. Now it cannot restrict freedom of speech or the right
to bear arms, engage in warrantless searches, and so forth, even if it is doing so in pursuance
of one of its enumerated powers. So the government can do anything in Article
I Section 8, as long as it isn’t restricted by Article I Section 9, AND it isn’t restricted
by the Bill of Rights. Now, you may be wondering, “What about the
powers of the states? We’ve been talking about powers of the Federal government. What
are the powers of the states?” The states themselves are not subject to the
doctrine of Enumerated Powers. In fact, the Constitution makes no attempt whatsoever to
enumerate any powers to the states. Therefore, the states’ powers are open to whatever
power they deem necessary for governing their own internal affairs. However, there are restrictions. State powers
are restricted by Article I Section 10. Many of these are the same as in Section 9: just
as the Federal government cannot violate habeas corpus or make a law ex post facto, neither
can the states. There are also other restrictions; for example, Section 8 gives the Federal government
the power to coin money. Section 10 prohibits the states from coining money. Also, states are restricted by certain clauses
in the Bill of Rights. The First Amendment applies only to Congress, but the Second Amendment,
as well as most of the others, do not have this restriction. And finally, the Fourteenth Amendment placed
further restrictions on the powers of the states by restricting them to due process,
and by applying other rights in the Bill of Rights to the states, such as those in the
First Amendment. There are other restrictions as well, against
both the states and the Federal government. Article VI prohibits religious tests as a
requirement for public office. The Thirteenth Amendment banned slavery. And so on. They
appear here and there throughout the Constitution. Now, what does all of this mean? The language
of the Tenth Amendment makes it plain: “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 other words: If it isn’t in the Constitution,
it falls to the states, UNLESS the states are restricted from doing it, in which case
it falls to the people. So, what is the significance of this lecture?
What is the point to take from all of this? If nothing else, it should help you realize
one obvious, undeniable, and awful truth: Most of what the Federal government does is
unconstitutional. In any given week, perhaps dozens of bills are passed in Congress that
don’t have anything to do with any power in Article I Section 8. This includes everything
from the Social Security system to Federal funding and regulation of public education.
These things are every bit as unconstitutional as the denial of free speech. Now, perhaps
you like these things and think they should be a part of what the Federal government does.
But then, the proper course of action should be to first amend the Constitution. For if
you can violate the Constitution to do what you want, others can violate the Constitution
to restrict free speech or conduct warrantless searches. And you would be falling into the trap Alexander
Hamilton warned us about in Federalist #84: “[A bill] of rights…would afford a colorable
pretext to claim more [powers] than were granted…I will not contend that such a provision would
confer a regulating power; but it is evident that it would furnish, to men disposed to
usurp, a plausible pretense for claiming that power.”
So thinking that abridging free speech is somehow more repugnant to the Constitution
than to claim a power not granted misses the point, and is very dangerous to liberty. So
many liberties have been taken because certain “exceptions” to the Bill of Rights have
been claimed, such as a “compelling government interest” or the interests of national security. This is perhaps one of the most important
concepts to take from this lecture series. Instead of worrying whether or not some bill
runs afoul of the first amendment, or the fourth, or whatever, the first thing you should
ask is, does the government have the power at all? Is there anything in Article I Section
8 that grants them that power? If not, then you stop right there—because it’s absolutely
unconstitutional. Only if the power is granted should you then go and ask if it runs afoul
of the Constitutional restrictions—does it violate habeas corpus? Does it abridge
free speech? And so forth. As for specific powers, we will discuss those
in future lectures. Until then, as always, stay strong and be free.

Only registered users can comment.

  1. amcnea, that would be the "Spend" part of "Tax & Spend". Congress has the power to pass all laws necessary & proper to execute their laws. No list of what constitutes "general welfare" is necessary as even the primary authors of the Federalist Papers disagreed over its implications.

    But if you want to get technical, the Commerce Clause potentially gives Congress limitless power so long as they can justify how something helps or hinders trade.

    Bottom line: it's subject to interpretation.

  2. It most certainly is not a straw man. Even the Federalist Papers show that the Founders hadn't reached consensus as to precise meaning. You're going for a more Madison viewpoint and I'm going w/ a more Hamilton interpretation on the meaning of "general welfare." But even if they did agree, they weren't divine kings and their authority does not rule us from the tomb.

  3. "It is the SUPREME law. It supersedes EVERY SINGLE OTHER LAW IN THE COUNTRY. "

    It CAN supersede every single other law in the country provided that a case is ruled to fall within its purview. The Constitution is a living document and uses broad language that's subject to interpretation. And it's the job of judges and juries to determine if a specific case does or does not fall within its purview.

  4. As the judicial branch, it is their role to check the use of power by the legislative and executive branches, the whole idea of checks and balances. The supreme court has been ruling on the constitutionality of since nearly the beginning of the US. What means do you suggest people use to check the power of congress when they pass unconstitutional laws? Until the next election cycle, the courts are the only direct way.

  5. A republic is a democracy, why do people have such a difficult time understanding that? This is probably the hundredth time Ive seen this comment. A republic is simply a subset of democracy.

  6. amcnea,
    The Constitution CAN supersede every single other law in the country provided that a case is ruled to fall within its purview. It's a living document & uses broad language that's subject to interpretation. And it's the job of judges and juries to determine if a specific case does or does not fall within its purview. If you want "supreme law" join a religion.

    "Try that one in court."
    Nobody "tries" anything. That's how its done. Talk to a lawyer, not your supreme Constitution deity.

  7. "The Constitution CAN supersede every single other law in the country provided that a case is ruled to fall within its purview."

    WRONG. ABSOLUTELY WRONG. See the American Jurisprudence quote.

  8. Even the Federalist Paper authors debated the meaning of "general welfare." Hamilton took the broader view that spending is an enumerated power that Congress may exercise independently to benefit the general welfare, such as to assist national needs in agriculture or education.

    And Madison disagreed w/ him. That's fine. But to pretend there's only one interpretation when even the Founders disagreed on it is dishonest.

  9. "Congress has the power to pass all laws necessary & proper to execute their laws."

    WRONG. They have the power to pass all laws necessary and proper for carrying into execution THEIR CONSTITUTIONAL POWERS.

    Again, have you even READ the Constitution?

  10. No thanks, Shane. Seeing how biased this lecture is, I don't see the point unless the former lecture includes you saying what you say in future lectures is biased & not to be taken as serious, objective reporting of facts.

    No serious legal scholars are as unwilling to recognize the legitimate debate over the meaning of its broader terms like "general welfare." as you are.

    I'm sorry you can't admit error or that nuance exists in the law but suck it up.

  11. If you are going to thread-jack, at least read and attribute terms and arguments to the appropriate source. Not that it will help your flimsy rhetoric, but at least you'll appear LESS foolish.

  12. Yes, and we all need to be reminded of the difference between a democracy & republic constantly lest we accidentally make a mistake and go on a killing spree, which is exactly what would happen if pretentious individuals didn't feel the need to sidestep actual contentious issues to clarify this semantic distinction in order to show up their opponents in a superficial way.

  13. As much as I have enjoyed showing your arguments to be riddled with error, I grow bored of your inability to provide me with any new ideas or thoughtful analysis of the Constitution or government.. Please feel free to continue your endless stream of "Yeah, but… (insert nonsensical garbage here)" without me. Good day.

  14. "No it is not. This is an excuse used by government worshipers to justify their faith."

    No, this is what people who actually practice law every day use to debate over how particular cases should be ruled by the court because the law isn't a black & white abstract concept but something that requires critical thought & nuance. No "government worship" required.

    "It is job of the states to enforce the contract between the states."
    What do you think judges & lawyers do all day anyway?

  15. The Federalist Papers are regarded by legal scholars as a primary source for interpretation of the U.S. Constitution. I'm sorry you don't like the facts but feel free to keep making some up that are more to your liking.

  16. Which I'm sure sounds super easy to someone who doesn't actually practice law but most cases aren't so easy to decide as flipping a coin.

    "Steel, rape, pillage, and split up the booty."
    Yeah, my point exactly. You have no respect for the legal system or critical thought & just want to worship a bunch of stone tablets w/ absolute commandments written on them. As I said before, if you want to start a religion, then feel free. But don't expect the rest of us who care about nuance to sign up.

  17. No really, from a purely political science perspective, a republic is a form of government in which the citizens elect representatives and the state is not headed by a monarch. That is all. A democracy however is simply a form of gov where the citizen elects representatives or directly votes for policy. In Canada for example we have a constitutional monarchy, but we are still a democracy.

  18. If you cant understand the definitions of words, then you make silly arguments like "the US is not a democracy, its a republic" which in turn makes you look dumb. Obviously its not the end of the world, but getting the meaning of words correct is important.

  19. Democracy is rule of men. Republic is rule of law. The government of a Republic doesn't HAVE to be elected (although they generally are).

  20. Definitions of words change, that is why it is important to use the current day definitions. In academia, a republic is a form of democracy in which there is no monarch as head of state.

  21. I like these videos and they are very informative, but I do wonder if all of these things are truly unconstitutional why are they not challenged? I find it hard to believe there isn't a loop hole or something you missed that allows for these powers

  22. Madison's definition was a bit more nuanced than that. I go into this a bit, but basically an oligarchy is too few representatives per population size and democracy is too many. Too few representatives, they're easily swayed by special interests. Too many, and the people can vote whatever they want.

    Republic is the sweet spot in the middle.

  23. no, in a poli sci class when someone uses the word republic it is understood that it is a state that has no monarch as head of state and permits citizens to vote for representatives or policy or both. Just because the chinese call themselves a republic doesnt make it so, much like the democratic republic of east germany wasnt democratic. Using 18th century definitions in a 21st century conversation doesnt work if the definition has changed.

  24. Yes, despite the overly litigious society we live in, no1 in the entire country really cares except Shane, Glenn Beck & their small band of merry men. That's it. Just the way the evil conspiracy wants it. It couldn't possibly be that other people, particularly legal scholars & people who actually practice law for a living, have a firmer understanding of the law. Nope, Shane's the true expert here. No room for reasonable & civil disagreement. The libertarians hold the one, true interpretation.

  25. Yeah, I've never understood how so many people arguing for the "rule of law" will not only NOT apply it to government, but insist on what is effectively political anarchy.

  26. Pursuant to the nondelegation doctrine, do you then think that all executive regulations and administrative laws are unconstitutional? Do you think it is illegal for the President to submit a budget instead of Congress taking the initiative? Do you think that all operations other than war are illegal? And most importantly, do you think these things not because of an interpretation of the Constitution but because you politically believe in minimalist government – or is that just a coincidence?

  27. 1. Congress needs to write the laws. They don't have the authority to just create an agency and tell them to do what they want. Hence DownsizeDC's Write the Laws Act.

    2. The President can submit all the budgets he wants. It's Congress's decision whether or not to pass them; all the President can do is sign or veto whatever they send to him.

    3. Post offices, roads, and lots of other things are specified in Article I Section 8.

  28. Where in the constitution does it state that the bill of rights is for further restriction of the government only? It is clear that the first and fourth clauses in section 9 can't be altered prior to 1880. Where does it clearly state that the bill of rights and the amendment process can't be used to increase or alter the enumerated powers of the government?

  29. @SpamSpamNEggs NOWHERE in my lectures do I say that ANY clauses in Section 9 can't be altered until 1880. Either state directly where you're getting this claim, or at the very least stop lying.

  30. @SpamSpamNEggs

    The only restriction I found on what
    amendments can be made is the first
    and fourth clauses of section 9 can't be
    amended prior to 1880. You didn't say this,
    it's in the constitution.

    At 1:10 in lecture 8, you say "The bill of rights
    confers no new powers to congress, it only
    restricts congress"

    Where is this restriction in the constitution?

  31. @shanedk

    "Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article

    Article 5 has this restriction.

    Where is your restriction "The bill of rights
    confers no new powers to congress"

    QUOTE IT!!!

  32. @SpamSpamNEggs First of all, that's 1808, not 1880. Second, it only applies to Clause 1 and not Clause 4.

    The Bill of Rights are "declaratory and restrictive clauses." They do NOT confer ANY new powers. In fact, one thing they were worried about is people trying to claim that they did!

  33. @SpamSpamNEggs

    I need to amend previous comments. The
    restriction expired in 1808, not 1880. Sorry
    I was reading quickly.

    There is a second restriction as well.
    "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

    This is only note worthy because it does
    not include restrictions on House seats or
    electoral votes. Apparently we can amend
    the constitution to deprive states of these
    without their consent.

  34. @SpamSpamNEggs States don't
    HAVE suffrage in the House or the
    Electoral College. That's the people.
    States only have suffrage in the
    Senate, and that was arguably taken
    by the 17th Amendment, making that
    amendment possibly invalid under
    Article V.

  35. @shanedk

    Where in the constitution does it say this?
    I have seen no such restriction. The
    amendment process was made difficult to
    prevent abuses and a hugely growing federal
    government, but I did not see where it is
    written that they may only be "declaratory and
    restrictive clauses".

    Where in the constitution is such a statement
    made?

  36. @SpamSpamNEggs Okay, now that you've "clarified" your position, maybe you can explain what the hell it has to do with what you were saying?

  37. @SpamSpamNEggs You LIAR!!! I NEVER said that Article V specified that only amendments could be "declaratory and restrictive clauses"! I said THE BILL OF RIGHTS were such!!!

    "The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added."

    The BILL OF RIGHTS is declaratory and restrictive! Now STOP LYING!!!

  38. @shanedk

    The note was that there are not restrictions
    on amendments to restrict without consent
    the house seats or electoral votes. Only
    the Senate was protected.

  39. @shanedk

    I'm not lying. I'm questioning your position.
    My questions have been met with accusations.
    Asking for proof is not lying. I have been
    asking for proof.
    Thank you for the quote. Now, where is that
    quote from? What article of the constitution
    or amendment? Is it part of some other
    binding document?
    Your almost there. One more fact and you
    can prove me wrong.

  40. @SpamSpamNEggs Sigh…it's from the Preamble to the Bill of Rights.

    Geez, and I thought Moon Hoaxers were slow…

  41. @shanedk

    Ok, the online copy I'm reading apparently is
    missing this.

    Second. Preambles are not binding. They
    have no standing in law. Your argument
    boils down to original intent, not what the
    document actually says in the binding portions
    of it.

    Had you quoted and cited the source in
    your first reply, we could have gotten here
    much faster…..and I'm the slow one.

  42. @SpamSpamNEggs Well, now you're just talking around yourself!

    Can you specify ANYWHERE in the Bill of Rights where a new power is granted or not?

  43. @shanedk

    The 16th Amendment.
    "The Congress shall have power to lay and collect taxes on incomes"

    The 18th Amendment.
    "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation"
    Second, even if a power is not used does
    not mean it does not exist. We could
    amend the constitution so California has
    no electoral votes or seats in the House.
    No such amendment exists, but we could
    write and pass it.

  44. @SpamSpamNEggs The 16th and
    18th Amendments are NOT part of the
    Bill of Rights, you idiot!

    Oh, and BTW: the 16th Amendment is
    NOT a new power; it's an exception to
    the restriction in Article I Section 9
    Clause 4.

    The 18th Amendment was repealed by
    the 21st.

    There are no active amendments in the
    Constitution that grant any new powers to
    the government.

  45. @shanedk

    ad hominem attacks and a moving target.

    Your argument has failed. I recognize when
    I am wrong, you changed my mind on the
    FDA and AMA. You need to do the same,
    recognize when you are wrong.

    You are very smart, but you are to rigid in
    your thinking. I have proven the authority
    to add power to the government. I have
    sited instances of this being done. I have
    proved my point. You can accept the truth
    or not. That is not in my power to change.

  46. @SpamSpamNEggs YOU'RE the one who made an argument–that the Bill of Rights conferred new powers to the government. You have NOT backed that up. You have LIED and you have moved the goalposts. This is on you, not me.

  47. @shanedk

    Now we have ad hominem and shifting the
    burden.

    Where is the binding clause that says "can
    not" or "declaratory and restrictive" or any
    other such restrictive language.

    You have shown the bill of rights did not.
    Did not was never my argument. The lack
    of can not was always my argument, even
    if I was silly enough to include the bill of
    rights that did not.

  48. @SpamSpamNEggs I have not ONCE made an ad hominem. Stop LYING.

    Second, we are talking about YOUR claim. The burden is on YOU. I know you tried to move the goalposts after I shot you down, but that doesn't change the FACTS.

    You have LIED AT EVERY TURN. You have tried to claim that I said NO AMENDMENT could ever grant a new power; that was a LIE. You tried to claim that I said "declaratory and restrictive clauses" referred to any and all amendments, not just the Billl of Rights.

    You are a LIAR.

  49. @SpamSpamNEggs It's going nowhere because YOU won't stop lying and support your assertion–which you DID make.

  50. @shanedk
    A third party helped clarify this argument
    for me. Hopefully I can shorten it to fit in 500
    words

    Your argument: "Declaratory and restrictive"
    are describing the first 10 amendments.
    (let me know if I'm wrong with this)

    My argument: "Declaratory and restrictive"
    does not appear in the constitution. It is not
    a legally binding statement for any amendment.

    "Declaratory and restrictive" are good descriptors
    of the first 10 amendments, I agree with this.

  51. @SpamSpamNEggs That was NOT the start of the discussion. That was in response to YOUR assertion, which is when you started with your LIES.

    Can you back up your assertion or not?

  52. @shanedk

    Two restrictions exist on amendments.
    Equal suffrage in the Senate, and one that
    expired in 1808. These are the only two
    restrictions on amendments. The full text
    of these are found in article 5. This is my
    assertion.

    If there are more restrictions, such as
    "Declaratory and restrictive", they are not
    in article 5:Amendments. If there are more
    binding restrictions on amendments I have
    not seen them. Preambles are not binding.

    This is as clear as I can make it.

  53. @Surhotchaperchlorome because of its overlying message; that is, the federal gov't doesn't really care to make sure that what it's doing is constitutional, so long as no one has a problem with it.

  54. @shanedk

    Well it's not exactly what I originally said. I
    included the corrections of 1808 instead of
    1880 and the second restriction, suffrage
    in the senate. I Included the source, Article
    5. Finally I rephrased my first questions
    about restrictions into an affirmative statement.

    This conveys the same messages as my
    first post. If you are reading a difference,
    the difference is your interpretation of my
    words. The message is the same.

  55. @SpamSpamNEggs Then I am completely unable to divine the purpose of your criticism, as you're not saying anything that I (or the video) disagree with.

  56. @shanedk

    I put forth a poorly worded question, and
    you started to attack me. I attacked back.
    It escalated from there.

    Not every comment I make is a criticism.
    Most first comments I make are questions.

    In lecture 8, you make "declaratory and
    restrictive" sound binding (my interpretation)
    You refer to this video for more information.
    I did not find that info, so I asked, but worded
    it poorly.

  57. Can you contact me please. I wish for you to do a lecture on Ex Post Facto and Bills of Attainder…Our Government is effectively using words to circumvent the above and create laws in violation of same.

  58. what about the constitutional amendment about alcohol? isn't that nonsensical if it only applies to the people representing the government?

  59. @morthim No, because it granted another power to the government. (That power was repealed by the 21st Amendment, of course.)

  60. @PlainSight52 No, actually, it was the states. The states chartered the convention and ratified the Constitution. It's an agreement between the states.

  61. @PlainSight52 That was part of the agreement: the states agreed that they would give up certain powers in exchange for being part of the union.

  62. Fine; where in Article I Section 8 is it authorized?

    Don't look to the Supreme Court for guidance; they said that it was OK to steal property and give it to a big corporation, and that an innocent man jailed for 18 years due to multiple acts of fraud by multiple prosecutors doesn't deserve compensation.

  63. @shchpendrop "Well, I thought the buck stops at the supreme court when it comes to what is constitutional and what is unconstitutional."

    Wrong. See Lecture 6.

  64. @mrphoo67 Smack him upside the head? Ask him what you call it when a military goes into a country and starts killing people?

  65. A better understanding of the 14th amendment can be found in Government by Judiciary by Raoul Berger. He disagrees with the original meaning you attributed to the 14th…

  66. One minor correction– not all legislative power is in Article 1, section 8. Some are found in the amendments beyond the bill of rights. For example, laws can be past to protect voter access to polling places and various other things.

  67. I think it is not totally tight was is stated in the video. There are also the embedded powers of the government. Also the Supreme Court has said this often. These arrests of the Supreme Court are not mentioned in the video
     

  68. You totally glazed right over bill of attainder art 1 sec 9 & 10.  Trying to hide something very important, or do you not understand the concept?

  69. Have there been any Supreme Court Justices or any notable modern day lawyers who interpret the Constitution this way?  I'm not saying that I disagree with you (I certainly don't), it's just that I rarely hear anything along these lines.

Leave a Reply

Your email address will not be published. Required fields are marked *