The Elastic Clause as Interesting Reason for Political Debate in the United States - Case Study Example

The necessary and proper clause, as represented by Article Section 8 of the United s Constitution, is a controversial topic for political commentators, Supreme Court justices, and lawmakers themselves, and has been so for hundreds of years (Engdahl, 2011). The significance of the so-called “elastic clause” rests in the distinction between enumerated and implied powers within the framework of the Constitution. Enumerated (or “delegated”) powers, as such, are those freedoms the Congress mentioned “in the first seventeen clauses in Section 8 of Article 1 (Gitelson, Dudley, & Dubnick, 2008, p. 43). Alternatively, “implied” powers are “those powers given to Congress by Article 1, Section 8, clause 18, of the Constitution that are not specifically named but are provided for by the necessary and proper clause” (p. 45). Accordingly, the necessary and proper clause exists to afford these implied powers to Congress in order to make sure the federal government has the power to carry out the 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” (p. 44). This clause is problematic for many because it falls along the Federalist/Anti-Federalist divide and the contemporary Conservative/Liberal divide. However, the problem with the necessary and proper clause is not with its controversial and contentious nature, but with the fact that it is vague, ambiguous, and is designed for subjective interpretations and applications of Constitutional law. The phrase “necessary and proper” in clause 18 of Article 1, Section 8 entitles Congress to make laws that extend beyond what the Constitution enumerates in the previous 17 clauses of that Section. This is taken to be a relationship between an end-goal and the means of achieving that goal (Engdahl, 2011). The end-goal must be a necessary for the achievement of the purpose of a government, which include the formation of “a more perfect Union” and the establishment of “Justice” (US Constitution, 1787). These ends are the explicit goals of the enumerated powers; in a similar vein, the implied powers are given only as they are necessary and proper to exercising the enumerated powers. This interpretation of the “necessary and proper” clause is based on the context in which it appears. Coming after 17 enumerated powers, the final clause specifies that the Congress is able to make laws that ensure the foregoing powers (namely, the enumerated powers) can be exercised sufficiently. In other words, the eighteenth clause of Section 8 does not give a blank check to Congress to make any rules or regulations it feels like passing. Rather, the expansion of implied powers must always be taken in necessary and proper reference to one of the enumerated powers. The elastic clause produced controversy among those who debated the Constitution’s merits as a founding document. Federalists claimed that the clause allowed only the execution of powers already granted by the Constitution: namely, the enumerated powers that are specified in the seventeen clauses listed before it. Among the proponents of this interpretation were Alexander Hamilton and James Madison. Madison wrote in Federalist No. 44 that, No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included” (Madison, 1788). In other words, the Federalists’ argument stood that without the elastic clause, the Congress would be paralyzed by the Constitution: only able to perform those acts allowed to them by the enumerated powers. In accordance with the view that the Constitution is a living document, these framers of the Constitution believed that clause 18 was absolutely necessary for a changing society in which the government too had to continuously adapt to new demands. Among Anti-Federalists, such as Patrick Henry, the belief was the clause would produce an unyielding and steadfast growth of federal power that would, inevitably, lead to the unacceptable limitation of individual liberty (Watkins, 2004, p. 62). Henry and others believed this to be the case because of the nature of “implied” powers meant that the Congress was able to create laws without respect for individual liberties and freedoms. Thomas Jefferson, who also belonged to the Anti-Federalist camp, said that, “The natural progress of things is for liberty to yield, and government to gain ground” (Jefferson, 1788). These kinds of sentiments ultimately lost the debate when the Constitution was ratified with the clause in place; however, the debate would continue in other areas of political life of early America, especially in terms of how a Congress should interpret and apply the rule. The early Democratic-Republican Party and the Federalist Party squabbled over the First Bank of the United States, which was the first national bank in the new country. It was created to establish financial order, establish credit, and to resolve the issue of valueless money that was issued during the Revolutionary War (Gitelson, Dudley, & Dubnick, 2008, p. 52). The Bank also assumed the debts of the states, which placated most of the opposition. While Hamilton argued that a bank was a necessary means of carrying out taxation (clause one, “to lay and collect taxes”), Anti-Federalists argued that the federal government did not have the right to charter a bank. They pointed out that the central bank was not an expressed power allocated to the Federal government, to which the Federalists replied that it was an implied power and was necessary (Watkins, 2004, p. 7). This means that Hamilton’s primary justification for the First Bank was the necessary and proper clause; however, the degree to which the First Bank was “necessary” is dubious, like most measures taken by the Federal government justified under the elastic clause (Engdahl, 2011). Today, central banking is a deeply-rooted element of the American economy that has virtually no connection to tax collection, but instead deals primarily with the control over currency (Weisberg, 1981, p. 208). The legitimacy of the creation of a national bank received attention in the Supreme Court nearly 30 years later in the case of McCulloch v. Maryland, in which the state of Maryland attempted to place a tax on all bank notes not charted in their state. This was specifically targeted at the Second Bank of the United States, which, at that time, was the only out-of-state bank operating inside of Maryland. Maryland argued that it was within their rights to impose taxes on banks as they saw fit. In a landmark decision, the Court ruled that the Constitution grants implied powers to Congress in order to execute the enumerated powers, and that states may not interfere with legitimate exercises of Constitutional power on the part of the Federal government (James McCulloch v. The State of Maryland, John James, 1819). In other words, the Congress has dominion over the individual states in terms of their implied powers. Since the Second Bank of the United States was created with implied authority, to help implement policies consistent with the Federal government’s enumerated powers, Federal laws were ruled to have supremacy over state laws, and Maryland was forced to repeal their tax. The McCulloch case demonstrated just how elastic the necessary and proper clause was: namely, because it stretched power of the Congress over all of the states by a matter of precedent. However, the opinion of Chief Justice John Marshall, who presided over the case, is legitimate in that he recognizes that other “grants of power” (meaning “implied powers”) would “imply [a] means of execution” (James McCulloch v. The State of Maryland, John James, 1819). Any argument for a law that does not have this means-to-end characteristic “find no support in Marshall’s opinion or in the Necessary and Proper Clause” (Engdahl, 2011, p. 1). Another way of phrasing might be to say that in order for an implied power to be constitutionally legitimate in achieving an enumerated end, it must have a “substantial effect” in achieving that end, or else the necessary and proper clause does not apply. Whether or not something has a substantial effect is, however, no more objective or clear-cut than saying that thing “helps” or “aids in” the accomplishment of the enumerated end. The issue of objective or subjective law is particularly important because, in order for a law to be obeyed, it must be concrete in nature. That is, to follow a law, one must know what it means and it cannot change from day to day, minute to minute. Following posted speed limits would be impossible if the posted speed limits did not include units of measurement. Similarly, a subjective law is one that can be interpreted one way or any other number of ways. With regards to the necessary and proper clause, it is often a matter of subjectivity, not objectivity, how “necessary” an implied power is for accomplishing an enumerated power. For instance, if a Congressman proposes a resolution to reinstate a military draft as an implied power to “To provide for the common Defense” (clause one), he must answer to what degree a draft “is necessary” for providing for that common defense. In some people’s minds, it may be very necessary; in other people’s minds, it may not be necessary at all. The Constitution is unclear about what procedure the government takes to decide what is necessary and what is helpful, but not necessary, in the achieving enumerated ends. An objective law, unlike one that is open to misinterpretation, specifies an act and a punishment for committing that act. The act itself and its punishment are clearly defined, avoiding vague and ambiguous terms, and its enforcement is objectively controlled. In order for an implied power to be constitutionally legitimate, it must be objectively necessary; in other words, the enumerated power cannot exist without it. Congressmen should ask whether a common defense will still exist if there is no draft; if so, then a draft is not objectively necessary. Congressmen should ask whether taxes will be collected if there is no central bank; if so, then a central bank is not objectively necessary. A more recent example of a subjective application of the necessary and proper clause came about with respect to the individual mandate for health care. In early 2011, the “originalist” (a strict interpretation of the Constitution) argument was put forward for health care reform. In a brief, the Constitutional Accountability Center (CAC) contended that Congress has the authority “to legislate in all Cases for the general Interests of the Union” (Wydra, 2011). On these grounds, the Affordable Care Act, including a minimum coverage provision, is constitutionally legitimate on the grounds that the Federal government should step in to enforce something that individual states do not have the authority to do. However, this “originalist” argument for health care reform is mistaken in several ways. First, the CAC says, “In circumstances in which a national approach is necessary or preferable, the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal” (Wydra, 2011). There is no standard of “necessary” or “preferable” given in the analysis. These terms are purely subjective within the political debate. Secondly, health care is not an enumerated power of Congress and, therefore, it is not valid to invoke the necessary and proper clause in order to defend the institutionalization of a health care policy simply because it is thought to be “necessary” for a national goal. Indeed, the elastic clause is the subject of very interesting political debate in the United States, even three hundred years after it was originally drafted into the Constitution. The same debates that were happening in 1791 are occurring today, just along different lines and with reference to different applications of the principle. The Constitution, during that time, has not lost its place as the most significant document in American history. For that reason, it is necessary to understand and to value it as a document that attempts to achieve objectivity in what it says, even if it does not always achieve that goal. References Engdahl, D. (2011, January 20). Not So Sweeping After All: The Limits of the Necessary and Proper Clause. Retrieved July 27, 2011, from The Heritage Foundation: http://thf_media.s3.amazonaws.com/2011/pdf/CGL06.pdf Gitelson, A., Dudley, R., & Dubnick, M. (2008). American Government (9th ed.). Belmont, CA: Wadsworth Publishing. James McCulloch v. The State of Maryland, John James, 17 U.S. 316 (The Supreme Court March 6, 1819). Jefferson, T. (1788). To Edward Carrington. Paris. Madison, J. (1788, January 25). Restrictions on the Authority of the Several States. The Federalist No. 44 . US Constitution. (1787). Philadelphia, PA: Constitutional Convention. Watkins, W. (2004). Reclaiming the American Revolution. Oakland, CA: Palgrave Macmillan. Weisberg, B. (1981). From Sea to Shining Sea: A History of the United States (3rd ed.). New York: Macmillan. Wydra, E. (2011, June 7). Don’t Tread on Me? Court Filings Show Not All States Think Health Care Reform Threatens States’ Rights. Retrieved July 27, 2011, from Constitutional Accountability Center: http://theusconstitution.org/blog.history/?p=2992 Read More