50 PART ONE • THE AMERICAN SYSTEM
Police Power
The authority to legislate
for the protection of the
health, morals, safety, and
welfare of the people. In
the United States, most
police power is reserved to
the states.do whatever is necessary to execute its specifically delegated powers.
The clause was first used in the Supreme Court decision of McCulloch
v. Maryland^4 (discussed later in this chapter) to develop the concept of
implied powers. Through this concept, the national government has suc
ceeded in strengthening the scope of its authority to meet the many
problems that the framers of the Constitution did not, and could not,
anticipate.Inherent Powers. A special category of national powers that is not
implied by the necessary and proper clause consists of what have been
labeled the inherent powers of the national government. These powers
derive from the fact that the United States is a sovereign power among
nations, and so its national government must be the only government
that deals with other nations. Under international law, it is assumed that
all nationstates, regardless of their size or power, have an inherent right
to ensure their own survival. To do this, each nation must have the ability
to act in its own interest among and with the community of nations—by,
for instance, making treaties, waging war, seeking trade, and acquiring
territory.
Note that no specific clause in the Constitution says anything about
the acquisition of additional land. Nonetheless, the federal government’s
inherent powers allowed it to make the Louisiana Purchase in 1803 and
then go on to acquire Florida, Texas, Oregon, Alaska, Hawaii, and other
lands. The United States grew from a mere thirteen states to fifty states,
plus several territories.Powers of the State Governments
The Tenth Amendment states that the powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states, or to the people.
These are the reserved powers that the national government cannot deny to the states.
Because these powers are not expressly listed, there is sometimes a question as to whether
a certain power is delegated to the national government or reserved to the states.
State powers have been held to include each state’s right to regulate commerce
within its borders and to provide for a state militia. States also have the reserved power
to make laws on all matters not prohibited to the states by the U.S. Constitution or state
constitutions and not expressly, or by implication, delegated to the national government.
Furthermore, the states have police power—the authority to legislate for the protection
of the health, morals, safety, and welfare of the people. Their police power enables states
to pass laws governing such activities as crimes, marriage, contracts, education, intrastate
transportation, and land use.
Given that marriage law has traditionally been left to the states, should the national
government always defer to state definitions of marriage—even when some of these
marriages are between people of the same sex? We examine that question in the At Issue
feature on the following page.
The ambiguity of the Tenth Amendment has allowed the reserved powers of the
states to be defined differently at different times in our history. When there is widespread4. 17 U.S. 316 (1819).
While the United States
as a whole uses a federal system of
government, each individual state has
a unitary system. Here, the governor of
Michigan announces a state takeover of
the city of Detroit in March 2013. What
gives a state government the power
to make such a move? (Jeff Kowalsky/
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