Reflections on Garcia and Its Implications for FederalismThis report was approved by the Commission on December 4, 1985, as an Information Report. |
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ACIR action approach argue assigned authority basic Bill of Rights Commerce Clause commerce power Commission on Intergovernmental Consti Constitutional amendment Constitutional design constitutional rules constrain the national cooperative federalism County Dagenhart define delegated powers design of federalism encroachment ends justify enumerated powers ernment executive exercise explicit explicitly prohibited expressly delegated federal system federalism contradiction Federalist Federalist Papers framers Garcia Court Garcia decision governmental granted inconsistent judicial discretion Justice Powell justify the means legal subdivision levels of government limit the national limited national Madison ment national government national political process national power necessary and proper negative pregnant Oregon Cities original seven articles parchment barriers positive delegation power of Congress principle of federalism problem prohibitions on Congress Proper Clause protection ratification requirement of positive reserved powers responsibility restrictions role set of powers solicitude specific Steward Machine Co stitution Tenth Amendment tion tutional U.S. Supreme Court
Popular passages
Page 17 - An elective despotism was not the government we fought for, but one which should not only be founded on free principles but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others.
Page 28 - I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted.
Page 16 - The only answer that can be given is that as all these exterior provisions are found to be inadequate the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.
Page 23 - This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted.
Page 23 - But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.
Page 29 - ... where it granted, in one instance, an authority to the union, and in another, prohibited the states from exercising the like authority ; and where it granted an authority to the union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant.
Page 29 - ... against restraining the liberty of the press afforded a clear implication that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Page 29 - State sovereignty would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.
Page 28 - For why declare that things shall not be done which there is no power to do ? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed ? 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 pretence for claiming that power.
Page 28 - They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?