How Much of the Federal Government is Un-Constitutional?

The federal government has overstepped its Constitutional authority in the creation of the gigantic bureaucracy of departments, agencies, and regulations. A very high percentage of the federal bureaucracy and the supporting laws and regulations take from the states and the people their Constitutional rights and prerogatives.

It was not always this way, of course. The Civil War went a long way to increase the power and authority of the federal government over that which had been until then the power of the states. The chaos that followed the end of the Civil War was brought into “order” by the intervention of the federal government into what had until then always recognized as the responsibility of the states.

Some of these interventions made sense, such as the adoption of federal currency in lieu of state-sponsored currencies. Despite the clear federal authority in the establishment and regulation of a national currency, many states continued to coin their own currency. The need for a common currency, especially given the urgency of the Reconstruction period, made its establishment and supremacy an important part of the restoration of the Unite States.

The New Deal of the 1930’s further expanded federal authority, but did it exponentially. There were new agencies, departments, authorities set up; an alphabet soup of new federal power over the states and the people. The New Deal laid the foundation for many new and expensive federal programs, departments, and regulations that continued throughout the later part of the 20th century, and unprecedented expansion of federal authority, and the consequential contraction of state and local control.

Ronald Reagan once said that “when government expands, liberty contracts.” The truth of that statement is obvious when we consider how strong the federal government, and how weak the states and the people have become.

The Constitution, however, is quite specific on those powers granted to the federal government, and those reserved to the states, and/or to the people.

Here is Article 1, Section 8 of the US Constitution, on the specific power of the legislative branch of the federal government:

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Clause 2: To borrow Money on the credit of the United States;

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

Clause 7: To establish Post Offices and post Roads;

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Clause 9: To constitute Tribunals inferior to the supreme Court;

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


That’s it. Those are the powers granted to Congress in the Constitution. Clause 1 is often construed to allow the enacting of laws such as those of the New Deal, in that it discusses the promotion of “the general welfare of the United States”. In reality, however, Clause 1 refers only to the laying and collecting of taxes and duties to support the enforcement of the powers granted by the other 17 clauses of the Constitution.

The framers of the Constitution were very concerned about the potential of too much power concentrated in too few hands, and subsequently drafted the 9th and 10th Amendments to the Constitution, part of the original Bill of Rights, to specifically limit the power of the federal government. These two amendments define even more closely the powers of the federal government versus those of the states and the people:

Article [IX.] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article [X.]
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.


These two amendments essentially state that only those powers specifically spelled out in the Constitution as belonging to the federal government actually belong to the federal government. All other rights and powers are “reserved to the States respectively, or to the people.”

There is nothing in the Constitution that authorizes Social Security, or No Child Left Behind, or the EPA, or the Farm Bureau, or the Department of Education, or Housing, or any of the New Deal or subsequent or related departments, agencies, or bureaus. Nothing. All of the laws passed and signed relating to these things are, in this author’s opinion, un-Constitutional.

The power of the bureaucracy is today so entrenched that the likelihood of reverting control back to the states or the people is obviously remote, but it is important to at least recognize that our system is completely out of alignment with what the framers intended. With this recognition we can begin to take the small steps to restoring to the states and to the people their rightful authority over their lives, their schools, their privacy, and their liberty.

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