FLORIDA CON LAW
CHAPTER 1
The 13 original states were sovereign nation states; they were loosely bound as the United States, but nothing that would affect sovereignty. They inherited the police power from Great Britain. Police Power is the general power of regulatory government, and flowed from Great Britain to the 13 states. So, the states have inherent power in our federal system because they got it from Great Britain and were the original inheritors of Great Britain’s sovereignty.
When it came time to form a federal government that worked, some of the state’s inherent power was given to the government of the United States under the Constitution. Some of the power was given exclusively to the United States (like the power to wage war, for example). Other powers were granted, but not exclusively (like the power to tax). States retained the power to tax. We end up with divided sovereignty B some power rests with the United States, and the rest lies with the individual states.
It is useful to look at functions performed by the United States constitution: (1) to grant power or delegate power to the United States’government (one way is through the necessary and proper clause). While state governments have inherent power, the federal government has only delegated powers and those implied powers which flow from the necessary and proper clause. The people granted the delegated powers to the United States. As the 10th Amendment says, all that is not granted is retained; (2) acts to limit federal power (example: the Bill of Rights); (3) some of the powers that the people took from the states and gave to the federal government were given exclusively, and to the extent that happened, that is a limitation on the states B so, the 3rd function is to take away power from the states and give it exclusively to the United States; (4) explicit limitation on state power (an example is the 14th amendment, 2nd sentence, A no state shall…@ ).
Does the federal constitution grant power to the states or does it take power away? It just takes it away. If that is true, what is the sole legitimate purpose of a state constitution? Can the state constitution grant power to the state? If the states have the residual of inherent power after some of it was given exclusively to the federal government, can a state constitution grant power to the state government? Whatever is left of the state’s inherent power is the state’s power, and it is not delegated or implied, it is inherent in the state itself. It is there because a state is a state. Since the states have inherent power, what is the sole legitimate purpose of the constitution? There is nothing to grant, so the only thing a state constitution can do is limit the inherent power of the state.
The federal government has to grant power because it started off with nothing. It has delegated and implied powers. If the federal government can’t find the delegated power to do something, it can’t do it.
What does the Florida legislature have to worry about if
vernments, have no sovereignty. Local governments are creatures of the state, and are allowed to exist as a matter of convenience. Since local governments are a creature of the state, they are totally at the mercy of the state legislature unless the Florida constitution grants them power. This is called A home rule.@ The Florida constitution has chosen to grant home rule to municipalities and those counties that have a home rule charter. So, in this way, the state constitution does grant power, but of course it is not granting power to the state. The only sovereign in the state of Florida is the State of Florida. (Gulfport is not a sovereign that got power from Great Britain in the beginning.) This is a limitation on the state because it takes away power from the state legislature and gives it to local governments. The power is not total for the local governments; the state left room for preemption. None of the grants of home rule are absolute and total.
b. Constitutional Language That Looks like a Grant of Power
(1) Constitutional Language as a legitimate limitation on power (pg. 6) B while this may look like a grant of power to the state, nevertheless, it is a limitation. The example is from
