Where does the Constitution delegate the power to take land for public use?

[Bartholomew Roberts]

My "interpretation" of the Fifth Amendment is that it means what it says, and no more. How complicated is that? It states a list of things government cannot do, not expressly identifying which government it is referring to, but stating, it would seem, broad principles which apply to all constituted governments.

My point was that there is no express grant in the Constitution for the judiciary to deprive people of life, liberty or property even WITH due process. Yet, you didn't make the argument that this power was not contemplated by the Constitution? Why not? Same amendment as the part you focused on and supported by the same reasoning you are suggesting.

It is different from current law in that it is accomplished through the Supremacy Clause, i.e., the Federal Government can only require the States to act in areas where the Federal Government is specifically granted a power to do something with land, such as establish post roads, not for any and all public uses Congress can dream up.

Theoretically, the current eminent domain power is limited in the same way. It doesn't matter much if we change the process and leave the same people to implement it.

Draw up new plans, or offer more money.

So the taxpayers should fund a ridiculous request for payment or face the option of having to draw up new plans and fund another purchase of property (hopefully without holdouts) in order to get enough land for the necessary public use? Can't "just compensation" be interpreted both ways? Does a single person have a right to shakedown all taxpayers or stop a public project because they don't want to play along?

As for the law you are arguing, you are pretty much arguing the way you think the Constitution should be read. It hasn't been read that way since 1819 at least and arguably earlier. Furthermore, it won't be read that way anytime soon since you are basically asking the existing government to commit seppeku under that interpretation. I don't see the government invalidating all law based on implied powers and the necessary and proper clause since 1819. eghad's view didn't become dominant in the last 70 years, it has been dominant since 1819.

Frankly, I don't think even the anti-federalists believed that a 5,200 word, 14-page document (including the Bill of Rights) was all the express grant of power needed to run the federal government. Look at Jefferson, he seemed quite able to overcome his belief that the executive lacked the authority to purchase land under the Constitution when the Louisiana Purchase came about.

Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

If the Constitution only grants the powers expressly listed, then why did the founders make a conscious choice to omit the above language from the new Constitution?

 

[hugh damright]

If the U.S. has no power to take private property for public use (which was common law in both England and the colonies at this time), then why use the phrase "without just compensation" at all? Why not just say "private property shall not be taken for public use"?

I tend to see a Bill of Rights as an enumeration of principles which are "right" according to a system of free government. For instance, one of the rights enumerated in my Virginia Bill of Rights is that the Legislative and Judicial powers should be separate (to prevent the concentration of too much power in any one body). I believe another principle of free government is that private property should not be taken for the public use without just compensation. In this sense, the reason the USBOR says that "private property shall not be taken for public use without just compensation" is because that is the principle of free government, and it doesn't just say that "private property shall not be taken for public use" because that is not the principle.

I do not deny that the US may have an implied power to take property if it is necessary for them to do so to be able to perform their properly delegated duties. But I do not believe that the US has an implied broad/general power to take property for public use, because I do not believe that the US has jurisdiction over all things public.

Some of y'all seem to think of highways as being federal property, but I have a unique view because I live off the Blue Ridge Parkway which is a federal road under our National Parks System. To legally drive on the Parkway, you have to have your weapon inaccessible and rendered inoperable. So to me highways and such seem like State roads and the Blue Ridge Parkway is a national/federal road.

 

[eghad]

The winning side on the Supeme Court said that the siezure of the land is for public benefit, they simply said that economic development was a "public purpose". Economic planning is a legitmate power of local governments under the existing law. The city had a plan to do it and that the econimic development would provide jobs and tax revenues for the government.

"The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan. "

The citizens had been given "due process and" eminent domain was being use for a "public purpose".

Now if the swing vote had gone the other way the story would be different.

I personally think the decison stinks, but the Supreme Court has left the door open for States to enact and pass laws to define what public use is and is not. If Conneticut had a clear cut law stating that economic development was not to be used under eminent domain we wouldnt even be discussing this.

 

[Bartholomew Roberts]

]But I do not believe that the US has an implied broad/general power to take property for public use, because I do not believe that the US has jurisdiction over all things public.

I'm not suggesting that they do. I am just saying that eminent domain was contemplated by the founding fathers as part of the common law and that beyond that, constitutional delegation of that authority can be supported by the necessary and proper clause; but only so long as it serves a mean to enact an enumerated power mentioned in the Constitution.

 

[The Real Hawkeye]

My point was that there is no express grant in the Constitution for the judiciary to deprive people of life, liberty or property even WITH due process. Yet, you didn't make the argument that this power was not contemplated by the Constitution? Why not? Same amendment as the part you focused on and supported by the same reasoning you are suggesting.

"Congress shall have the power to declare the punishment for Treason." -Article III, Section 3, the US Constitution. "Congress shall have the power to provide for the punishment couterfeiting." - Article I, Section 8. It took me exactly two minutes to find those, but you are like a many tentacled octopus, and I have no doubt that, having tightly nailed down yet another of your arguments, you will insist that your real point was something entirely other, and that I have been negligent once again in failing to perceive and answer it.

Theoretically, the current eminent domain power is limited in the same way. It doesn't matter much if we change the process and leave the same people to implement it.

You are mistaken.

So the taxpayers should fund a ridiculous request for payment or face the option of having to draw up new plans and fund another purchase of property (hopefully without holdouts) in order to get enough land for the necessary public use? Can't "just compensation" be interpreted both ways? Does a single person have a right to shakedown all taxpayers or stop a public project because they don't want to play along?

I believe I provided two options. If the first fails, the second will not.

As for the law you are arguing, you are pretty much arguing the way you think the Constitution should be read. It hasn't been read that way since 1819 at least and arguably earlier. Furthermore, it won't be read that way anytime soon since you are basically asking the existing government to commit seppeku under that interpretation. I don't see the government invalidating all law based on implied powers and the necessary and proper clause since 1819. eghad's view didn't become dominant in the last 70 years, it has been dominant since 1819.

No it hasn't. Federalism being turned on its head was a process starting after the Civil War, and didn't find its full steam until the New Deal.

Frankly, I don't think even the anti-federalists believed that a 5,200 word, 14-page document (including the Bill of Rights) was all the express grant of power needed to run the federal government. Look at Jefferson, he seemed quite able to overcome his belief that the executive lacked the authority to purchase land under the Constitution when the Louisiana Purchase came about.

I know he is credited with that, but didn't know he did it as purely an executive act, without Congress. I am not up on the topic enough to answer you, however. If he did something without Constitutional authorization, however, this does not establish the fact that the power existed in implied form, but only that even the best of men are not entirely without fault.

If the Constitution only grants the powers expressly listed, then why did the founders make a conscious choice to omit the above language from the new Constitution?

Ever hear of a little thing called the Tenth Amendment. The "express" language was kept out because each time the central government wished to act on a delegated power under the Articles, they were challenged, since the exact form of the exercise of that power was not expressly delegated. In the US Constitution, so long as the power is delegated, the Congress is authorized to pass laws which would fall under it. For example, the Congress has the power to establish laws on bankruptcy. Since powers need not any longer be expressly delegated (i.e., in fine detail), Congress may, without challenge, pass any laws under that rubric they choose, so long as the laws do not exceed the delegated power, i.e., they must be both necessary and proper (and not merely disingenuously so) to legislating in the area of bankruptcy.

 

[publius]

Furthermore, according to your reasoning, the Federal Government is entirely unhampered when it comes to taking land for PRIVATE use, because nowhere in the Constitution or its amendments is that sovereign power circumscribed, and taking land for private use is also a sovereign power at common law.

I thought seizures had to be reasonable, and property could not be taken without due process.

 

[Art Eatman]

For the umpteenth time, from the 5thA: "...nor shall private property be taken for public use without just compensation." This is a restriction against abuse of power by Congress, made possible in Article 1, Section 8's opening lines, "...Power...to provide for...general Welfare of the United States."

IOW, the government can and may take private property. A restriction upon government power is that it must be paid for. The price must be "just", taken to mean fair market value.

The other restriction on government power is that the purpose of the taking is for public use. The limited purpose of "use" has been expanded by SCOTUS to include the broader "benefit"--to which I and others object.

Art

 

[The Real Hawkeye]

I thought seizures had to be reasonable, and property could not be taken without due process.

Yes, both the Fifth and Fourteenth Amendments require due process of law for all taking of property. My comment had to do with the traditional powers of sovereigns. A sovereign, traditionally, was considered the rightful owner of all the land. The people who lived on the land were doing so only by his permission. He could take the land you live on for any reason he chose, therefore. Only gradually was the power of the sovereign reined in regarding land rights. Our limitation to public use is just another step in that reining it. Short of a Constitutional limit, however, it is assumed that every sovereign State has the original power to take land for any reason. This is why most State Constitutions require that it be done only for public use and with just compensation, i.e., because without such restrictions, the State would have retained the full sovereign power over the land, like the kings of old.

The issue at hand, however, is to what degree associations of States, like the United States, share in that original sovereign power. According to the Founders, the United States only shares in that original power of Statehood to the extent that it has been delegated such powers by the States themselves, in the form of enumerations in the Constitution. This is because the United States is not itself a State, and therefore has no original sovereignty of its own. It may only, therefore, exert those elements and features of sovereignty which were revocably delegated to it by the several States in its membership.

Each element of sovereignty which was delegated to the Federal Government is subject to revocation at any time by the States, just like if you, a share holder in Exxon, hired me to represent you at a share holder's meeting, you could revoke that delegated authority at any time you chose, because it is you who actually holds the shares in that company. Any authority I exercise in that context has been delegated to me by you, for only so long as I exercise said authority to your satisfaction. Same goes for the relationship between the several States and the Federal Government, as proven by the revocation of all sovereignty once delegated to the government constituted under the Articles of Confederation.

 

[Bartholomew Roberts]

Congress shall have the power to declare the punishment for Treason." -Article III, Section 3, the US Constitution. "Congress shall have the power to provide for the punishment couterfeiting." - Article I, Section 8.

So Congress may only deprive someone of life, liberty or property for treason or counterfeiting under your interpretation of the Constitution since they are not expressly authorized to do so for any other crimes?

You are mistaken.

No, I am not. "The federal power of eminent domain is, of course, limited by the grants of power in the Constitution, so that property may only be taken for the effectuation of a granted power" -United States v. Gettysburg Electric Ry., 160 U.S. 668, 679 (1896).

I believe I provided two options. If the first fails, the second will not.

So if they don't sell out, we make the state take away their land for the Feds under the Supremacy clause of the Constitution instead of allowing the Feds to do it directly?

No it hasn't.

For somebody who is so contrary to what I am saying, you aren't making much effort to support your point; but once again you are wrong.

The doctrine of implied powers existed prior to McCulloch v. Maryland and was proposed by Hamilton and others prior even to the ratification of the Constitution. The minority composed of Federalists such as Madison, and the Anti-Federalists lost that debate in Congress when implied powers were used to justify the creation of the national bank - and if they didn't lose there, then they certainly surrendered when the time came to reauthorize the bank and the legislation passed overwhelmingly. By 1819, that battle was over.

Like someone who argues that the foundation of a 120 story skyscraper should have been poured differently after they are adding the 60th floor, you are arguing something that has been settled law for almost 200 years. Even better, you are arguing for an interpretation of eminent domain that you cannot support with a single scrap of evidence from a court decision, a Federalist paper, a letter from the founders, or anything else.

Ever hear of a little thing called the Tenth Amendment.?

Yes, I believe that was the one were you said "Secondly, the fact that States have no new powers, as a result of the US Constitution is in no way contradictory to the Tenth Amendment, nor is it unexpected." So tell me, were the colonies allowed to use eminent domain or was that the sole exercise of the sovereign? If the states did not have that power before the founding of the nation, how did they get it afterward based on your statement above?

In the US Constitution, so long as the power is delegated, the Congress is authorized to pass laws which would fall under it. For example, the Congress has the power to establish laws on bankruptcy. Since powers need not any longer be expressly delegated (i.e., in fine detail), Congress may, without challenge, pass any laws under that rubric they choose, so long as the laws do not exceed the delegated power, i.e., they must be both necessary and proper (and not merely disingenuously so) to legislating in the area of bankruptcy.

Which is pretty much the doctrine of implied powers in a nutshell...

 

[Bartholomew Roberts]

Some good reading on the subject from the first case to challenge the power of the Federal government to directly conduct a taking under eminent domain in 1876: KOHL v. U S, 91 U.S. 367 (1875)

Some relevant points from those who opposed the taking:
"We do not raise the question as to the existence of the right of eminent domain in the national government..."

Some more relevant points from the government's brief in support:

The right of eminent domain is an 'inseparable incident of sovereignty.' Giesy v. C. W. & T. R.R. Co., 4 Ohio St. 323, 324; West River Bridge v. Dix, 6 How. 507; 2 Kent, 339; Cooley, Const. Lim. 526.

Of course the right of the United States is superior to that of any State. Dobbins v. Comms., 16 Pet. 447.

The authority to purchase includes the right of condemnation. 4 Kent's Com. 372; Burt v. Ins. Co., 106 Mass. 364; 7 Opinions of Att'y-Gen. 114.

From the majority opinion:

The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the States. These are needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of property-holders to sell, or by the action of a State prohibiting a sale to the Federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a State, or even upon that of a private citizen. This cannot be. No one doubts the existence in the State governments of the right of eminent domain,-a right distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the government, either mediately or immediately, and independent of the consideration whether they would escheat to the government in case of a failure of heirs. The right is the offspring of political necessity; and it is inseparable [91 U.S. 367, 372] from sovereignty, unless denied to it by its fundamental law. Vattel, c. 20, 34; Bynk., lib. 2, c. 15; Kent's Com. 338-340; Cooley on Const. Lim. 584 et seq. But it is no more necessary for the exercise of the powers of a State government than it is for the exercise of the conceded powers of the Federal government. That government is as sovereign within its sphere as the States are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power over those subjects is as full and complete as is the power of the States over the subjects to which their sovereignty extends. The power is not changed by its transfer to another holder.

Note that even the dissent doesn't argue that the power is unconstitutional... their argument is simply that Congress hasn't statutorily given a federal court jurisdiction to conduct condemnation proceedings

 

[The Real Hawkeye]

So Congress may only deprive someone of life, liberty or property for treason or counterfeiting under your interpretation of the Constitution since they are not expressly authorized to do so for any other crimes?

I only took a cursory look through the Constitution. There could be more offenses that Congress is authorized to set the punishments for. Those were all I found in a two minute glance.

No, I am not. "The federal power of eminent domain is, of course, limited by the grants of power in the Constitution, so that property may only be taken for the effectuation of a granted power" -United States v. Gettysburg Electric Ry., 160 U.S. 668, 679 (1896).

It does not surprise me one bit that a branch of the Federal Government should wish to expand the powers of the Federal Government as a whole. It should not surprise you either.

So if they don't sell out, we make the state take away their land for the Feds under the Supremacy clause of the Constitution instead of allowing the Feds to do it directly?

Yes, so long as the Federal Government possesses supremacy in the area for which they are requesting the land, such as post roads. They are not empowered to demand land for any project which they think necessary and proper in general terms. Post roads are one of the few things they could demand the land for, however, under the Supremacy Clause

For somebody who is so contrary to what I am saying, you aren't making much effort to support your point; but once again you are wrong.

You must have cut and pasted my comments right after I posted, because within minutes I provide further explanation. Go back and look.

You are arguing for an interpretation of eminent domain that you cannot support with a single scrap of evidence from a court decision, a Federalist paper, a letter from the founders, or anything else.

Like I said, a court decision from a branch of the Federal Government would always tend to support an expansion of Federal power. As for the rest, it is self evident that you are mistaken. Just read my posts again.

Yes, I believe that was the one were you said "Secondly, the fact that States have no new powers, as a result of the US Constitution is in no way contradictory to the Tenth Amendment, nor is it unexpected." So tell me, were the colonies allowed to use eminent domain or was that the sole exercise of the sovereign? If the states did not have that power before the founding of the nation, how did they get it afterward based on your statement above?

Am I missing something? Do my earlier words contradict my words now? The States acquired the powers of statehood when they each seceded from England. Any unitary people which severs its political ties with a State becomes a State unto itself, as that is the natural political status of any large unitary population. Keep in mind, here, that we are discussing a subdivision of philosophy, not astrophysics.

Which is pretty much the doctrine of implied powers in a nutshell.

Not in the sense in which you mean it. What you mean when you say implied powers ought actually to be called presumed powers.

 

[Baron Holbach4]

It does not surprise me one bit that a branch of the Federal Government should wish to expand the powers of the Federal Government as a whole. It should not surprise you either.

Examples abound where regulatory takings have run roughshod over property rights -- without any just compensation -- making a mockery of the 5th Amendment's takings clause.

 

[LAK]

I tend to agree with Bartholomew Roberts here.

For those that believe the State can seize land or real property with such a broadly non-specific justification defined as "for the public good" - or something similar - let's follow this to it's inevitable conclusion.

The State seizes all land and real property - "for the public good".

Sound familiar?

----------------------------------------

http://ussliberty.org
http://ssunitedstates.org

 

[publius]

For the umpteenth time, from the 5thA: "...nor shall private property be taken for public use without just compensation." This is a restriction against abuse of power by Congress, made possible in Article 1, Section 8's opening lines, "...Power...to provide for...general Welfare of the United States."

James Madison:

"With respect to the two words ‘general welfare', I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

and

"If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America."

Thomas Jefferson:

"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

 

[The Real Hawkeye]

I tend to agree with Bartholomew Roberts here.

For those that believe the State can seize land or real property with such a broadly non-specific justification defined as "for the public good" - or something similar - let's follow this to it's inevitable conclusion.

The State seizes all land and real property - "for the public good".

Sound familiar?

Good piont, LAK, which is a good reason for citizens of States to circumscribe that sovereign power of States in their State Constitutions to be sure that such takings are only for essentials like government buildings and such.

 

[publius]

So I went here and typed the words eminent domain into the search box, to see what would come up. 5 pages of stuff is the answer.

That site doesn't return a usable URL in search results, but one of the things I found was this image from the Statutes at Large --GENERAL INDEX TO THE EIGHT VOLUMES OF THE STATUTES AT LARGE.:

 

[The Real Hawkeye]

Thank you Publius. I think your post #64 was the final nail in the coffin.

 

[Baron Holbach4]

SCOTUS, in 1795, described eminent domain as a "despotic" power: http://www.castlecoalition.org/publications/report/index.html

Between 1998 and 2002, the Institute for Justice logged more than 10,000 cases where eminent domain was abused for private gain:

http://maps.castlecoalition.org/

 

[Ira Aten]

The big con, is the government taking private property and delegating it to another private individual (a company) if the government believes more tax revenue will result. This new concept of the SCOTUS, is a bastardization of the intent of the takings clause since they really meant land taken by the E.D. process to be "for the good of the peopledirectly, such as a public right of way, or improvement to a town or municipality, NOT simply for the increase of of a government agencies tax revenues for a general fund.

That is the shame of it nowdays.

 

[publius]

You're welcome, Hawkeye, but I'm really with Justice Strong on this one. The federal government can grant patents and copyrights, so they must be able to build offices for that business. Is the only one in the country to be in DC?

They can collect taxes, and they're going to need buildings for that. Same with regulating interstate commerce.

In the case of forts, magazines, armories, and other needful buildings, the Constitution mentions the need to get the consent of the State legislature in question, but there is no mention of any need to get State consent when it comes to acquiring land for other federal purposes. For reasons already stated, the power to purchase on behalf of the public must include the power to condemn.

 

[antarti]

Second, that isn't my reasoning, it is the reasoning of Chief Justice John Marshall - Revolutionary War veteran, buddy of George Washington and John Adams, Federalist, former House representative, Secretary of State, etc.

It has been the legal doctrine of this country since 1819, when the people who actually wrote the Constitution were also putting it into action in a practical government.

Politicians have always been out for their own, and the founding document of the Union was meant as a pair of shackles, not a get-out-of-jail-free card for them, nor something to be "expounded [read: expanded] upon" by judicial fiat. Jefferson feared that for good reason.

The Alien and Sedition Acts were passed what... 10 years after the signing of the Constitution? Adams signed anything the Congress passed, viewing the Presidency as subservient to the will of the people expressed by the Legislature (one of his great faults). That doesn't make it right, or correct by the founding documents, or mean that Adams (or the country at large) agreed it was Constitutional. But the pols "got it done".

While the legalities are one thing, this vast quoting of Ultra-Federalists I find very disturbing.

The Constitution was a compromise, between UltraFederalists, Federalists, and Anti-Federalists, yet I continue to see only the "Ultra" side expressed by many (including a couple of eloquent mods). Little heed is paid to Madison, who drafted the vast majority (yes, with much input), and laid out plenty of explanation of various parts in other contemporaneous writings.

Understand that when you blindly believe the Hamiltonian view, you are essentially placing your trust in a sycophant (ok butt-kisser) to Washington, who believed Julius Caesar was the greatest man who ever lived and wanted to follow in his footsteps, to shape your views. These are people who actively worked to get the "Ultra" twin-holy-grails of both a Bank and large Navy built. They promoted this during one period by actively relaying false information to Adams (the President) and manipulating his foreign envoys so as to embroil the new country in war (which thankfully Adams avoided once he got wise).

Those are not the types of people I would choose to associate with the proper interpretation of the Constitution... and I worry greatly when I see the most avaricious of them so often quoted.

 

[dfaugh]

Silly boy!

You don't really think the Constitution/BOR means anything to the current crop of politicians, do you? They're gonna do whatever they want, and justify it somehow, no matter what.:banghead:

 

[Baron Holbach4]

Even if eminent domain was banned it still would not stop the government from invoking this so-called "right" of the state. Even if the Second Amendment said, "The right of the people to keep and bear arms shall not be infringed," it still would not stop the government from regulating firearms.

 

[Ira Aten]

Baron:
Unfortunately, you are totally correct about the Government not caring a damn about what the Constitution says.

That is why they spend about one hour total, in public schools, letting children know their rights under that document. In fact, it has got so stupid, that I would not be surprised to hear Federal Judges declare the Constitution cannot be taught in public schools, due to it being Unconstituional to teach it.

 

[hugh damright]

Originally Posted by Articles of Confederation

Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

If the Constitution only grants the powers expressly listed, then why did the founders make a conscious choice to omit the above language from the new Constitution?

I believe that question is what the States asked, and so they requested the Tenth Amendment to fix the problem. Here are the requests for the Tenth:


MA - "First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised."

NC - "I. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government."

NH - "First That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised."

NY - "that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same"

RI - "That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same"

SC - "This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union."

VA - "First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal Government."