Stare governments are fundamentally different than the federal government and can exercise a much broader range of powers. This sometimes causes confusion and leads people to believe that state governments operate under the same limitations as the federal government.

In his famous State House Yard Speech, James Wilson explained the fundamental difference between state governments and the new general government created by the Constitution. He starts with the basic structure of state governments.

“It will be proper … to mark the leading discrimination between the state constitutions, and the Constitution of the United States. When the people established the powers of legislation under their separate [state] governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete.”  [Emphasis Added]

In other words, state governments can exercise any power that is not specifically prohibited to it. If the state constitution doesn’t address a particular power, the state government can exercise it. It is only limited by the express prohibitions included in the state constitution or its bill of rights.

On the other hand, the federal government can only exercise the powers specifically delegated in the U.S. Constitution.

“But in delegating federal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given, is reserved.”

Every power not reserved (specifically prohibited) is available to state governments. But every power that is not specifically given (enumerated) to the federal government is reserved – to the states or to the people as the Tenth Amendment clarifies.

This is why state governments can take a lot of actions the federal government cannot engage in. For instance, states can impose mask mandates while the federal government cannot. The U.S. Constitution does not delegate any such power to the federal government. It is therefore barred from taking such action. But the states don’t need a specific state constitutional provision authorizing the power to mandate masks. Unless the state constitution includes some provision barring it from issuing such a mandate, the state has the authority to do so.

In effect, the states have a much broader range of powers than the federal government. You cannot expect a state to be as limited as the federal government.


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Small things grow great by concord...

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