American Democracy in Context. Joseph A. Pika
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enumerated or implied powers, or as a result of power derived from enabling clauses), and “all Treaties made … under the authority of the United States” are “the supreme Law of the Land.” This means that states must obey each of these and that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” At first glance, this seems very clear-cut: Anytime a state law or a provision of a state constitution conflicts with national power in the form of the U.S. Constitution, an act of Congress, or a treaty, it must give way to “the supreme Law of the Land.” Yet, the ongoing debate about how much power Congress can legitimately derive from either the necessary and proper clause or the enabling clauses raises persistent contention: Precisely which laws are made in pursuance of the Constitution and are thus legitimately “supreme”?
necessary and proper (elastic) clause The last clause of Article I, Section 8 of the Constitution, which authorizes Congress to make “all laws which shall be necessary and proper” for executing the Constitution’s enumerated powers; sometimes called the elastic clause because it allows congressional powers to expand.
supremacy clause Article VI, Clause 2 of the Constitution specifying that federal laws and treaties passed pursuant to the Constitution trump contradictory state laws dealing with the same topic.
Tenth Amendment The amendment to the Constitution that says, “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.”
reserved powers The powers not delegated to the national government by the Constitution that are retained by states under the Tenth Amendment.
police powers The powers reserved to the states under the Tenth Amendment dealing with health, safety, public welfare, and morality.
State Powers
Those who opposed ratification of the Constitution did so because they felt it gave the new national government too much power—power that could be used to infringe upon both individual liberties (such as freedom of speech) and states’ rights. Ultimately, ratification came as the result of a promise to add a Bill of Rights through the process of amendment (see Chapter 2). Among the first ten amendments that collectively form the Constitution’s Bill of Rights, the Tenth Amendment serves as the major weapon in the arsenal of states’ rights.
The Tenth Amendment says that any power that the Constitution has not delegated to the federal government, nor prohibited the states from exercising, is “reserved to the States respectively, or to the people.” Among these reserved powers are states’ police powers: those used by states to manage and maintain public order through laws designed to protect (police) the health, safety, morals, and public welfare of their people. Police powers also permit state regulation of things such as crime, education, marriage, and traffic. Since these powers are left to individual states, the resulting laws may—and do—vary from state to state. However, the ambiguity of constitutional language can make it difficult to draw a clear line between delegated powers and reserved powers. In fact, the exact parameters of the police powers have fluctuated across time due to the U.S. Supreme Court’s changing interpretation of constitutional language.
For example, shifting interpretations of the commerce clause and the Tenth Amendment have allowed Congress to legislate in areas long thought to be the province of the states. Federal minimum wage laws were once routinely struck down by the Supreme Court as an unconstitutional infringement of state police powers under the Tenth Amendment. Now the Court upholds federal minimum wage laws as an acceptable exercise of Congress’s commerce clause power. Neither the language of the Tenth Amendment nor the commerce clause changed—only the Court’s interpretation of that language. We will examine specific examples of such changes later in this chapter.
In addition to their reserved powers, states have certain powers that are specifically listed in the Constitution (such as the power, enumerated in Article I, Section 4 to determine the “times, places, and manner” of holding elections for members of the U.S. House and Senate; and the power, enumerated in Article VII, to ratify amendments to the U.S. Constitution). A summary of the states’ reserved and enumerated powers can be found in Table 3.2.
Table 3.2
Concurrent Powers
Some powers belong exclusively to the national government (such as the power to declare war). Others belong exclusively to the states (such as the power to establish local governments within a state). However, some powers are shared between the national government and the states. These are known as the concurrent powers (see Table 3.3).
Table 3.3
The power to tax is one example of a concurrent power. Although there are some limits on what types of tax each level can impose—states cannot impose a tariff (an import tax) without the consent of Congress and the federal government cannot impose a tax on real estate—both the national government and the states can impose excise taxes (non-property taxes, such as taxes on payrolls, estates, gasoline, and cigarettes). For example, Congress raised the federal tax on a pack of cigarettes from 39 cents a pack to $1.01 a pack in 2009.11 In addition to this federal tax, individual states are free to add their own tax on cigarettes and to choose their own tax rate. As of 2019, the states of Connecticut and New York had the highest rate ($4.35 per pack) and Missouri had the lowest (17 cents per pack), with the District of Columbia having the highest rate of all ($4.50 per pack).12 Thus, the cost of cigarettes—and gasoline and alcohol and many other goods and services—can vary considerably from state to state and even from county to county and city to city, since both can also impose taxes. For example, the tax rate on cigarettes in Illinois in 2019 was $2.98, but Cook County added another $3.00 tax, and the city of Chicago (which is in Cook County) added another $1.18, making Chicago the most expensive city in the country to buy cigarettes ($7.16 in state, county, and city taxes alone).13
Other concurrent powers include the ability to establish courts, borrow money, and charter banks and corporations. Once again, however, the precise line between exclusive powers and concurrent powers can change over time, largely because of changing interpretations of constitutional language by the Supreme Court.
Prohibited Powers
In addition to granting powers to the national government and the states, the Constitution also prohibits certain specific powers. Article I, Section 9 of the Constitution lists powers denied to Congress. For example, Congress is prohibited from passing a bill of attainder (a law declaring a person or group of persons guilty of a crime without a trial) or an ex post facto law (a law that makes an act a criminal offense retroactively, even though the act was not a crime when it was committed). Among other things, Congress is also prohibited from granting titles of nobility and from favoring one state over another when exercising its authority to regulate interstate commerce.
concurrent powers Powers shared by the national government and the states (both, for example, have the power to tax).
Article I, Section 10 of the Constitution lists powers denied to the states. States, for example, are prohibited from entering into treaties, coining money, altering obligations of contracts, or issuing letters of marquee and reprisal (warrants authorizing what would otherwise be an act of piracy: the attack and capture of a ship). And, similar to Congress, states are prohibited from passing bills of attainder, ex post facto laws, and titles of nobility.
Relationships Among the