Absent the Constitution - Part 1

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Life - No Longer an Unalienable Right?

Not Your Father's Mid-Term Election

Government - A Necessary Evil?

The Next Two Years

A Change in Approach

It has always been the goal here at constitutionmatters.net to be positive, teaching constitutional principles and discussing politics in a civil, respectful manner while, at the same time, attempting to provide narrative that reflects truth. In light of the election results on November 3, 2026, while the goals will not change on this website, readers can expect to see a change in approach.

Not long ago an article appeared on this site titled “The Next Two Years.” In that paper, scenarios were discussed if 1) Democrats won the majority in both chambers of Congress, 2) Republicans won the majority in both chambers of Congress, or 3) Republicans control one chamber and Democrats the other. The idea behind that article was that, at least for the next two years, little would change with Trump in the White House.

Given the election-day results, it is necessary to reconsider some of those conclusions. That reconsideration comes not because Democrats won the majority in both chambers of Congress, but because of the depth of that win, which was stunning by any measure. Democrats won Senate seats and House seats in places and by margins that would have been unthinkable two years ago. Even in Florida, where Republicans won both the Senate seat and the governorship, the margins were miniscule in a place where the Republican candidates should have won by double-digits.

Because of those results, one cannot help but adjust political perspective. Consequently, over the next few weeks you will find here a series of articles discussing what Americans might see beginning in January 2027, as Democrats take control of Congress.

Federal Limitations

When the U.S. Constitution was ratified in 1788, New Hampshire being the ninth state to accept the document, the purported purpose was to limit the scope of authority for the federal government while providing that government with the necessary tools to carry out its duties. The intent was that a system of federalism would preserve states’ rights and authority while the federal government would refrain from crossing the limiting boundaries placed upon it by the Constitution.

The U.S. Constitution, ostensibly designed primarily by James Madison in 1787, enumerated 18 specific powers that were delegated to the federal government. The plan was that the federal government would be constrained from crossing the established boundaries by specifically listing the range of duties and powers for which it was to be responsible. The federal government was not to reach beyond those specific limitations. Those enumerated powers consisted of:

1 Taxing and Spending Power
To lay and collect taxes, duties, imposts, and excises to pay debts and provide for the common defense and general welfare.

2 Borrowing Power
To borrow money on the credit of the United States.

3 Commerce Power
To regulate commerce with foreign nations, among the states, and with Native American tribes.

4 Naturalization and Bankruptcy Power
To establish uniform rules of naturalization and uniform bankruptcy laws.

5 Coinage Power
To coin money, regulate its value, and fix standards of weights and measures.

6 Counterfeiting Power
To provide punishment for counterfeiting U.S. securities and coin.

7 Post Office Power
To establish post offices and post roads.

8 Patent and Copyright Power
To promote science and the useful arts by granting patents and copyrights.

9 Inferior Courts Power
To constitute tribunals inferior to the Supreme Court.

10 Piracies and International Crimes Power
To define and punish piracies, felonies on the high seas, and offenses against the law of nations.

11 War Power
To declare war and issue letters of marque and reprisal.

12 Army Power
To raise and support armies, though appropriations may not exceed two years.

13 Navy Power
To provide and maintain a navy.

14 Military Regulation Power
To make rules governing the land and naval forces.

15 Militia Calling Power
To call forth the militia to execute federal laws, suppress insurrections, and repel invasions.

16 Militia Organization Power
To organize, arm, and discipline the militia, while reserving certain powers to the states.

17 Federal District Power
To exercise exclusive legislation over the District of Columbia and other federal enclaves such as forts, arsenals, and dockyards.

18 Necessary and Proper Clause
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested in the federal government.

These enumerated powers were there for a reason. They were designed to assure that the federal government would stay in its lane. In fact, the limited scope of federal authority was used as a major selling point to affect ratification of the Constitution. James Madison, in Federalist No. 14, wrote explicitly about the founders’ vision of a national government whose authority would be limited to those matters requiring a federal solution.

…the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other subjects which can be separately provided for, will retain their due authority and activity.[1]

Tenth Amendment

According to Madison, the Constitution would not allow federal overreach, and he truly believed that. These limitations were then reiterated with the introduction of the Tenth Amendment in 1789 (ratified in 1791). Demonstrating the importance and significance of constitutional limitations, that amendment reads as follows.

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.[2]

Madison whole-heartedly believed not only the words of the Tenth Amendment, but his iteration in Federalist No. 14, where he fervently assured his readers of federal respect for governmental limitations. Unfortunately for Madison, there were those among the Founding Fathers who were not quite so respecting of constitutional limitations.

The ratification of the U.S. Constitution was a challenging process, with intense debates over its merits. One of the most vocal opponents, Patrick Henry, contended that the Constitution granted excessive power to the federal government. The Tenth Amendment was designed to address those concerns.

Disagreements over the amendment’s wording reveal the divide between Anti-Federalists, who preferred the phrase "powers not expressly delegated to the United States…" as in the Articles of Confederation to limit federal authority, and Federalists, who feared that such language would unduly restrict the national government.

Was there a meaningful distinction between "powers not delegated" and "powers not expressly delegated"? Both sides believed so. Ultimately, Federalists won the day, inserting the less restrictive wording that supposedly provided federal flexibility while still preventing federal overreach.

The intentional omission of the word “expressly” would come to impact the manner in which men, and particularly the courts, viewed the Constitution. The goal of providing the federal government with flexibility was turned into license to categorize all federal activity under the Necessary and Proper Clause found in Article I, Section 8, Clause 18 of the Constitution (see 18th enumerated power above).

Next week, on November 16, 2026, this series will continue with a look at those among the Founding Fathers who seemed to set the United States on a path toward federal expansion and overreach. Having cleverly reworded the Tenth Amendment to their liking, these men took advantage and plowed through those supposed limitations with reckless abandon.

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[1] Madison, James, Federalist No. 14.

[2] 10th Amendment of the U.S. Constitution

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