Knowing some basics of the U.S. Constitution will aid in understanding the role the Michigan Constitution plays in our lives. In particular, it is important to know about the concept of enumerated versus plenary powers, as well as the federal supremacy clause.

The United States Constitution was ratified in 1788 and took effect in 1789. As ratified, and including signatures, this document had 4,543 words. With 27 amendments today, it has grown to 7,591 words.

In 1803’s Marbury v. Madison case, U.S. Supreme Court Chief Justice Marshall explained that the United States government can only do so much: “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” (He went on to explain those limitations would not have effect if Congress could enact statutes that contravened the Constitution, and thus the concept of judicial review began).

This idea of the federal government being limited to its enumerated powers in the Constitution is further expressed in the Tenth Amendment, which was ratified in 1791: “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.”

If there is not a constitutional basis for legislation, Congress cannot pass a legal statute governing that matter.

The states, in contrast, are generally believed to have “plenary” (full, complete) power over whatever subjects are not enumerated in the federal constitution.

This means a state may legislate on any subject, unless prohibited by either its own constitution or the U.S. Constitution.

As the Michigan Court of Appeals recently noted, “the Legislature does not need express permission from the [Michigan] Constitution to act; instead, it has the power to legislate on all matters that are not otherwise prohibited by the Constitution.”

Thus, the federal Constitution is both a document that provides power to govern (for example, article I section 8 explicitly lays out some subjects of congressional legislation) and one that limits power through matters like the Bill of Rights.

But with Michigan’s constitution, the power to legislate is presumed. The document, more generally, serves as a means of providing limits and guidelines for using that power.

Over the years, federal power has grown immensely. It happened through numerous means: judicial interpretations of the federal “necessary and proper” clause or the commerce clause, the Civil War amendments that made the Bill of Rights applicable to the states, the rise of the federal administrative state, the levying of a federal income tax, or a combination of these things.

Because of the federal Constitution’s supremacy clause, this means that in areas Congress can regulate, federal law controls.

Thus, there emerges a legal hierarchy: federal Constitution over federal law, over federal regulations (for the moment we will accept that federal regulations are an outgrowth of a clear congressional intent), over state constitution, over state law, over ordinances.

This is not absolute, however. Some provisions of Michigan’s constitution allow localities to have control over certain matters, the state Civil Service over others, and certain universities over others still.

Congress’ hierarchical standing and the supremacy clause allow it to preempt states from legislating in certain fields. Sometimes Congress exercises this power, and sometimes it does not. For an example where preemption has not been exercised, consider anti-discrimination statutes that exist, both at the federal and state level.

Even so, federal supremacy generally causes people and groups seeking to challenge laws to look first at federal sources and only then turn to state constitutions.

This does not mean that state constitutions are unimportant. The Michigan Constitution was the basis for the Mackinac Center Legal Foundation’s successful challenge to Gov. Gretchen Whitmer’s COVID-19 executive orders. Also, sometimes the limits on governmental power in Michigan’s constitution are greater than their federal counterparts.

Despite the growth of federal power, there are still many areas of our life wherein the Michigan Constitution provides the highest governing law. On matters left to the state, it is our supreme law.

This week, Michigan Capitol Confidential will explore the 10 most-popular constitutional amendments since the 1963 Constitution took effect, and the 10 efforts that failed by the greatest margins.

Patrick J. Wright is vice president of legal affairs at the Mackinac Center. Email him at wright@mackinac.org.

Permission to reprint this blog post in whole or in part is hereby granted, provided that the author (or authors) and the Mackinac Center for Public Policy are properly cited.