The Constitution's Denied Power: What's Off-Limits?

The Tenth Amendment of the United States Constitution, part of the Bill of Rights, was ratified on December 15, 1791, and outlines powers that are expressly denied to the federal government. The Tenth Amendment prescribes that the federal government has only those powers delegated to it by the Constitution, and that all other powers not forbidden to the states by the Constitution are reserved to each state or the people. This amendment was proposed to protect state power and limit the power of the federal government, outlining that powers not expressly granted to the federal government are reserved for the states.

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The power to coin money

The United States Constitution grants Congress the power to coin money and regulate the value of currency. This power is explicitly mentioned in Article I, Section 8, Clause 5, which states that Congress has the authority to "coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures". The Constitution also grants Congress the power to establish banks and manage the circulation of money, as well as the power to punish those who produce counterfeit money.

The Supreme Court has also interpreted the Constitution as allowing Congress to prohibit the use of counterfeit money and to abrogate clauses in pre-existing private contracts calling for payment in gold coin or foreign currencies. However, the Court has held that such an abrogation of contracts involving the obligations of the United States is an unconstitutional use of the coinage power.

The power to make treaties with foreign states

The Treaty Clause in the US Constitution states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur" (Article II, Section 2). The Treaty Clause gives the President the authority to negotiate international agreements without senatorial approval, but the Senate can still check this power. The Senate's authority is limited to either disapproving or approving a treaty, with the latter including the power to attach conditions. Treaties are rare in modern US foreign policy, with most international agreements taking the form of congressional-executive agreements or executive agreements.

The Treaty Clause was influenced by the perceived flaws and limitations of the Articles of Confederation, which was the first governmental framework of the United States. The Articles established a weak central government and gave significant autonomy to individual states. While the unicameral Congress of the Confederation had the power to make treaties, they required the approval of nine out of thirteen states, a high bar that prevented many foreign pacts from being made. The states often ignored or defied these agreements, and the national government struggled to follow through on its obligations to foreign powers.

To address these issues, a Constitutional Convention was held in 1787 to draft a stronger governing document. The Founding Fathers wanted to ensure that the US could uphold its international obligations and that other nations would not renege on treaties with the US. The Treaty Clause was added to the Constitution, giving the power to make treaties to the national government, with the President and the Senate sharing this power.

The power to levy duties on exports

The Export Clause states that " [n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws". This clause is only thirteen words long but has raised many interpretive questions. One of the main concerns addressed by the Export Clause is the potential for the national government to favour certain ports and states over others. For example, Luther Martin of the Maryland delegation warned that without the Export Clause, the national government could compel ships sailing in and out of the Chesapeake Bay to clear and enter at Norfolk, Virginia, which would be detrimental to Maryland's commerce.

The Export Clause has been interpreted by the Supreme Court, which emphasised that it restricts what Congress can do. In Youngstown Sheet & Tube Co. v. Bowers (1959), property taxes were upheld on the basis that the materials taxed had lost their character as imports. In Selliger v. Kentucky (1909), a property tax levied on warehouse receipts for whiskey exported to Germany was ruled invalid.

The Framers of the Constitution sought to address three main concerns by committing sole power to lay imposts and duties on imports and exports to the Federal Government:

• The Federal Government must speak with one voice when regulating commercial relations with foreign governments.
• Tariffs, which might affect foreign relations, could not be implemented by individual states.
• Import revenues were intended to be the major source of revenue for the Federal Government and should not be diverted to individual states.

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The power to prohibit freedom of religion, speech, press, or assembly

The First Amendment to the United States Constitution expressly denies the power to prohibit the freedoms of religion, speech, press, and assembly. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights. The First Amendment prevents Congress from making laws that establish a national religion or that prohibit the free exercise of religion. It also guarantees the freedom of speech, the freedom of the press, and the right to peaceably assemble and petition the government.

The First Amendment encompasses "the two big arenas of religion in constitutional law": establishment cases and free exercise cases. Establishment cases deal with the Constitution's ban on Congress endorsing, promoting, or becoming too involved with religion. Free exercise cases deal with Americans' rights to practice their faith. These two clauses sometimes compete with each other. For example, when the government spends money on the clergy, it could be seen as establishing a religion, but if the government does not provide funding for military chaplains, it could infringe on soldiers' rights to exercise their chosen religions.

The First Amendment also protects the freedom of association, including privacy in one's associations. In Near v. Minnesota (1931) and New York Times Co. v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint (pre-publication censorship) in almost all cases. Additionally, the Supreme Court has determined that protection of speech is not absolute. While the First Amendment bars Congress from abridging the freedom of speech, it does not prohibit private, non-governmental entities from doing so.

The Tenth Amendment to the United States Constitution, also part of the Bill of Rights, further reinforces the principle that the federal government does not have the power to prohibit the freedoms of religion, speech, press, or assembly. The Tenth Amendment states that the federal government only has the powers delegated to it by the Constitution, and all other powers are reserved to the states or to the people. This amendment expresses the principle of federalism, whereby the federal government and the individual states share power by mutual agreement.

The power to conduct illegal searches or seizures

The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures by the government, ensuring their right to privacy. This amendment was proposed in response to opposition to the ratification of the Constitution, which lacked guarantees for civil liberties. Four state conventions proposed restrictions on the federal government's authority to conduct searches.

The Fourth Amendment states that people have the right to be secure in their persons, houses, papers, and effects, and that no warrants shall be issued without probable cause, supported by an oath or affirmation. This probable cause must be demonstrated by a law enforcement officer to obtain a search or arrest warrant, with a court-authorised magistrate determining whether to issue the warrant.

The amendment outlines that a search occurs when a government employee or agent violates an individual's reasonable expectation of privacy. For example, strip searches, visual body cavity searches, and electronic surveillance constitute reasonable searches when supported by probable cause and conducted appropriately. Similarly, a seizure of a person occurs when the police's conduct communicates to a reasonable person that they are not free to leave. A seizure of property occurs when there is meaningful interference with an individual's possessory interests in that property.

The Fourth Amendment also establishes the exclusionary rule, which holds that evidence obtained through a violation of the amendment is generally inadmissible in criminal trials. This rule was established in Weeks v. United States (1914). Additionally, a Bivens action can be filed against federal law enforcement officials for damages resulting from an unlawful search and seizure.

While the Fourth Amendment protects individuals from unreasonable searches and seizures, there are exceptions. For instance, warrantless searches and seizures of properties in plain view, abandoned property, or properties in an open field do not violate the amendment, as there is no reasonable expectation of privacy in these cases. Furthermore, the United States Foreign Intelligence Surveillance Court of Review recognised an exception for foreign intelligence surveillance conducted for national security purposes directed at foreign powers or their agents outside the United States.

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