What's an enumerated power?

I think it’s fair to say that most people are pretty confused about the Constitution. To illustrate the point, consider a simple question. If the First Amendment were repealed, could the Federal Government censor a newspaper?

The way most people think about things, this question is very frightening because everybody knows the First Amendment is the key to protecting “freedom of the press” against Federal censorship. But they’re wrong. Even if there had never been a First Amendment or it somehow got repealed, freedom of the press wouldn’t change one tiny bit because Congress would STILL have no authority to censor a newspaper.

When you look at Article 1 (the part where the States tell Congress what powers they have agreed to give away to it), it begins by saying, “All legislative Powers herein granted…,” which clearly means that only some (not all) Powers have been so granted. Then, in Section 8, it specifies, “The Congress shall have the Power To…,” listing 18 and only 18 specific powers the States are agreeing to forsake and give over to the national government. And if you read this list, you’ll notice pretty quickly that “regulate the content of newspapers” is not included. This means that even in the absence of the First Amendment, Congress would be not one inch closer to having the power to censor a newspaper. Or so the authors of the Constitution thought as do we who believe in it still.

However, in the era of so-called “Modern Constitutional Law,” an eager Senator might say that if only we could get rid of that pesky clause about having a free press, then he COULD censor newspapers since newspapers are sold across state lines and are therefore part of interstate commerce.

And it was precisely this sort of expansion which many original State legislators worried about when considering the adoption of a Bill of Rights. They were concerned the entire Constitutional scheme would one day be flipped on its head. Rather than Congress always being understood as having the power to do only what was enumerated in Article 1, Section 8 of the incorporating contract, they worried that redundantly spelling out particular restrictions against Congressional expansion in the form of rights would eventually enable Congress’s power to mutate into the into the unrecognizably different idea that Congress can do anything not specifically prohibited by the Bill of Rights. To assuage such fears, they added the 9th and 10th Amendments, reiterating the point about who really held the power by default and clarifying (again, quite redundantly) that Congress could only do what was in Article 1, Section 8.

Well, as it turns out, those who worried just weren’t worried enough. Even with these safeguards so boldly in place, the mutation is virtually complete. And although it may have taken 220 years for their worst fears to become reality, these ancient opponents of the Bill of Rights don’t sound like delusional or paranoid fearmongers today. They sound like prophets.