Limited Federal Powers

As conceived by early Americans, the powers of the federal and State governments, under the constitutional frame, occupied entirely different orbits that would rarely come into conflict:

The method for maintaining separation between governments was to deliminate the specific powers of the federal or "general" government from the larger mass of "police," "municipal" and eminent domain powers that comprised the State's remaining jurisdiction. These were enumerated in a positive grant of specific powers to the federal or "general" government. ("General" refers to the scope of application, not to the breadth of its powers. The federal government has no general or national "police" or "municipal powers" and no powers for the national "general welfare" by virtue of the Preamble, only those powers specifically enumerated in the Constitution.)

"The question is not what power the Federal Government ought to have but what powers in fact have been given by the people." United States v. Butler, 297 U.S. 1, 63 (1936).

In "The Federalist No. 23" Hamilton stated:

"If the circumstances of our country are such, as to demand a compound instead of a simple, a confederate instead of a sole government, the essential point which will remain to be adjusted will be to discriminate the OBJECTS, as far as it can be done, which shall appertain to the different provinces or departments of power; allowing to each the most ample authority for fulfilling the objects committed to its charge..."

The intended "objects" of federal power were decribed as follows:

James Madison stated in "The Federalist Papers No. 45":

"The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects as war, peace, negotiation, and foreign commerce; with which the last power of taxation will, for the most part, be connected. The powers relative to the several states will extend to all the objects which, in the ordinary course of affairs, concerns the lives, liberties and prosperity of the state."

In "The Federalist No. 23" Hamilton stated:

"The principle purposes to be answered by the Union are these - The common defence of the members - the preservation of the public peace as well against internal convulsions as external attacks - the regulation of commerce with other nations and between the States - the superintendence of our intercourse, political and commercial, with foreign countries."

Hamilton, in "The Federalist" No. 33, explains that that federal law in the exercise of its enumerated powers will be supreme, acting directly upon the individuals who established the authority of the federal government from their original sovereignty as a "body politic":

"But it is said, that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this or what would they amount to, if they were not to be supreme? It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the later may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government; which is only another word for POLITICAL POWER AND SUPREMACY. But it would not follow from the doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union...only declares a truth, which flows immediately and necessarily from the institution of a Foederal Government. It will not, I presume, have escaped observation that it expressly confines the supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the Convention since that limitation would have been to be understood though it had not been expressed."

As stated by Chief Justice Waite in United States v. Cruikshank et al. (92 U.S. 542)(1875):

..."Its [federal government's] powers are limited in number, but not in degree. Within the scope of its powers, as enumerated and defined, it is supreme and above the States; but beyond, it has no existence. It was erected for special purposes, and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view. It can neither grant nor secure to its citizens any right or privilege not expressly or by implication placed under its jurisdiction."