Introduction
The United States
is a government
of enumerated powers. Congress, and the other two branches of the
federal government, can only exercise those powers given in the
Constitution.
The powers of
Congress
are enumerated in several places in the Constitution. The most
important
listing of congressional powers appears in Article I, Section 8 (see
left)
which identifies in seventeen paragraphs many important powers of
Congress.
The last paragraph of Article I, Section 8 grants to Congress the power
"to make all laws which shall be necessary and proper for carrying into
execution the foregoing powers"--the "Necessary and Proper
Clause."
The proper interpretation of the Necessary and Proper Clause was the
subject
of a heated debate between such important figures as Alexander Hamilton
(who argued that the clause should be read broadly to authorize the
exercise
of many implied powers) and Thomas Jefferson (who argued that
"necessary"
really meant necessary). Hamilton's more flexible
interpretation
makes possible a strong central government, whereas Jefferson's
narrower
interpretation strengthens states' rights.
The Bank of the United States in
Philadelphia.
Alexander Hamilton argued that the Constitution's implied powers
authorized
its creation.
The famous
case of McCulloch
vs Maryland considered whether Article I, Section 8 gave Congress
the
power to create a national bank and, if so, whether the state of
Maryland
could tax it. For nine days, Daniel Webster and former
Constitutional
Convention delegate Luther Martin jargued the case before the justices
of the Supreme Court. Chief Justice John Marshall, writing for
the
Court, found the Necessary and Proper Clause gave Congress the
flexibility
to create the bank as an aid to carrying out its enumerated borrowing
and
taxing powers and that Maryland's taxation of the bank violated the
Supremacy
Clause.
Attorneys for McCulloch (Daniel
Webster, left) and
Maryland (Luther Martin, right) in McCulloch (or M'Culloch) vs
Maryland
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U. S. vs
Gettysburg
Elec. Ry. Co. (1896) considered whether Congress had the power to
condemn
a railroad's land in what was to be Gettysburg National Military
Park.
Writing for the Court, Justice Peckham found that the power to condemn
the railroad's land was implied by the powers of Congress to declare
war
and equip armies because creation of the park "tends to quicken and
strenghten"
the motives of the citizen to defend "the institutions of his
country."
Gettysburg Train Station in 1888
Skipping
forward more than a century to the modern era, we see the Court in U. S. v Comstock (2010) give an
especially broad reading to the Necessary and Proper Clause. In Comstock, the Court
upheld a federal law that authorized the continuing
detainment, under a civil commitment program, of potentially dangerous
sexual offenders who had completed their prison terms. The Court
found the law "reasonably adapted" to a "legitimate" and constitutional
end of government, and therefore to be constitutionally supported by
the Necessary and Proper Clause. Writing for the Court, Justice
Breyer said the fact that the law was several steps removed from any of
the enumerated powers of Article I was not fatal. Justices Thomas
and Scalia dissented, arguing that the law "executes no enumerated
power," and was therefore unconstitutional.
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Key Constitutional Grants
of Powers to Congress
Article I, Section. 8.
The Congress shall have Power To lay and collect
Taxes, Duties, Imposts
and Excises, to pay the Debts and provide for the common Defence and
general
Welfare of the United States; but all Duties, Imposts and Excises shall
be uniform throughout the United States;
To borrow Money on the credit of the United
States;
To regulate Commerce with foreign Nations,
and
among the several
States, and with the Indian Tribes;
To establish an uniform Rule of
Naturalization,
and uniform Laws
on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof,
and of
foreign Coin,
and fix the Standard of Weights and Measures;
To provide for the Punishment of
counterfeiting
the Securities
and current Coin of the United States;
To establish Post Offices and post
Roads;
To promote the Progress of Science and
useful
Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;
To constitute Tribunals inferior to the
supreme
Court;
To define and punish Piracies and Felonies
committed on the high
Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and
Reprisal, and make
Rules concerning Captures on Land and Water;
To raise and support Armies, but no
Appropriation
of Money to
that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and
Regulation of
the land and
naval Forces;
To provide for calling forth the Militia to
execute the Laws of
the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and
disciplining, the Militia,
and for governing such Part of them as may be employed in the Service
of
the United States, reserving to the States respectively, the
Appointment
of the Officers, and the Authority of training the Militia according to
the discipline prescribed by Congress;
To exercise exclusive Legislation in all
Cases
whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession of
particular
States, and the Acceptance of Congress, become the Seat of the
Government
of the United States, and to exercise like Authority over all Places
purchased
by the Consent of the Legislature of the State in which the Same shall
be, for the Erection of Forts, Magazines, Arsenals, dock-Yards,
and other
needful
Buildings;--And
To make
all Laws which shall be necessary
and
proper for carrying
into Execution the foregoing Powers, and all other Powers vested by
this
Constitution in the Government of the United States, or in any
Department
or Officer thereof.
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Questions
1. The alternative to a government
of enumerated powers is, of
course,
a government of unenumerated powers. The Constitution might have
said "Congress shall have all powers not specifically prohibited
elsewhere
in this Constitution." What are the advantages and disadvantages
of each system?
2. It would be silly to say, for example, the "power to establish
post offices" did not include the power to print postage stamps or pay
mail carriers. But does it also include the power to advertise
the
joys of stamp collecting on television? How broadly or narrowly
should
the enumerated powers be read? Should the "Necessary and Proper
Clause"
be interpreted as authorizing actions rationally related to one of the
listed powers, or only actions "necessary" to carrying out a listed
power?
3. Thomas Jefferson had serious doubts as to whether the
Constitution
gave him the power to acquire land from France through the Louisiana
Purchase,
but he went ahead with the deal anyway. Was the Louisiana
Purchase
constitutional? What might be the constitutional source for the
power
to acquire lands?
4. In McCulloch vs Maryland, Chief Justice Marshall notes
that the Constitution is not a statute, and suggests that it should be
read more liberally and flexibly than a statute so that it might serve
the ages. Do you find Marshall's argument about constitutional
interpretation
persuasive?
5. Thomas Jefferson was none too pleased with the decision in McCulloch.
Jefferson said, "The judiciary of the United States is a subtle core of
sappers and miners constantly working underground to undermine the
foundations
of our confederated fabric." What do you think about Jefferson's
characterization?
6. In Gettysburg, the Court says that to justify an
exercise
of congressional power, "any number of powers may be grouped together,
and an inference from them all may be drawn that the power claimed has
been conferred." This is the so-called "implied powers
doctrine."
Is the Court now moving in the direction of abandoning this doctrine
and
insisting upon more specific textual support to sustain exercises of
federal
power?
7. What exactly was the
enumerated power, if any, that the civil commitment program upheld in Comstock executes? Do you
think the program is too far removed from any of the enumerated powers
to be unconstitutional?
8. What implications does Comstock have for the debate about the
constitutionality of the 2010 healthcare reform legislation? Does
the decision suggest that mentally unstable and uncurable jihadists
being held at Guantanamo or elsewhere could, constitutionally, be kept
in detention forever?
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