Eleanor Finch
The powers directly written into the US Constitution are known as enumerated powers. These include the power to declare war, to raise and support an army, and to lay and collect taxes. The Tenth Amendment, added to the Constitution in 1791, clarifies that any powers not specifically given to the federal government are reserved for the states or the people. The interpretation of these powers has been a source of debate, with some arguing for a strict constructionist view, limiting the powers of the federal government, while others advocate for a looser interpretation, allowing for a broader scope of federal authority.
Characteristics and Values of Enumerated Powers
| Characteristics | Values |
|---|---|
| Powers directly written in the Constitution | 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 | |
| To regulate commerce with foreign nations, Indian tribes, and among the several states | |
| To establish a uniform rule of naturalization and uniform laws on the subject of bankruptcies | |
| 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 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 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 | |
| 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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What You'll Learn
Enumerated powers
The Necessary and Proper Clause, also known as the Elastic Clause, gives Congress the power to make laws that are "necessary and proper" to carry out the enumerated powers. This clause has been interpreted broadly, allowing Congress to expand its powers. For example, in McCulloch v. Maryland (1819), the Supreme Court ruled that under the Necessary and Proper Clause, Congress had the power to establish a national bank to carry out its powers to collect taxes, pay debts, and borrow money.
There are differing opinions on the interpretation of enumerated powers. Strict constructionists, referring to a statement by Chief Justice Marshall in McCulloch v. Maryland, believe that the government can only exercise the powers granted to it in the Constitution. Loose constructionists, on the other hand, believe it is up to Congress to determine what means are "necessary and proper" in executing its enumerated powers.
The Tenth Amendment expresses a limitation on Congress's power by stating that powers not delegated to the United States by the Constitution are reserved to the states or the people. This amendment highlights the distinction between enumerated powers, which are shared between the federal government and the states, and reserved powers, which are exclusive to the states.
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Necessary and Proper Clause
The Necessary and Proper Clause, also known as the Elastic Clause, is a clause in Article I, Section 8 of the United States Constitution. It states that Congress has the legislative power 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 States, or in any Department or Officer thereof."
The Clause is considered to expressly confer incidental powers upon Congress, and no other clause in the Constitution does so by itself. This interpretation has been controversial, especially during the early years of the country. Strict constructionists interpret the Clause to mean that Congress may only make a law if the inability to do so would cripple its ability to apply one of its enumerated powers.
The Necessary and Proper Clause was not a primary focus of debate at the Constitutional Convention itself, but its meaning quickly became a major issue in the debates over the ratification of the Constitution. Anti-Federalists expressed concern that the Clause would grant the federal government boundless power. Federalists, including Alexander Hamilton and James Madison, argued that the Clause would permit only the execution of powers that had been granted by the Constitution.
The landmark case of McCulloch v. Maryland (1819) saw the US Supreme Court rule that the Clause grants implied powers to Congress in addition to its enumerated powers. The Court held that Congress has the implied power to establish a bank, as a bank is a proper and suitable instrument to aid in Congress's enumerated power to tax and spend. This case reaffirmed Hamilton's view that legislation reasonably related to express powers was constitutional.
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Strict constructionism
> This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.
Strict constructionists interpret the Necessary and Proper Clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers. The Constitution expresses various other limitations on Congress, such as the one expressed by the Tenth Amendment:
> 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.
The use of the term "strict construction" in American politics is not new. The term was used regularly by members of the Democratic-Republican Party and by Democrats during the antebellum period when they argued that the powers of the federal government listed in Article I should be strictly construed. They embraced this approach in the hope that it would ensure that the bulk of governmental power would remain with the states and not be usurped by the federal government via novel interpretations of its powers.
Perhaps the best-known example of this approach is Jefferson's opinion arguing against the constitutionality of a national bank. Because the vagueness of Article I inevitably lent itself to broad interpretations as well as narrow ones, strict constructionists turned to the somewhat restrained descriptions of the powers of Congress that were offered by advocates of the Constitution during ratification.
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Loose construction
The term "enumerated powers" refers to the powers directly written in the US Constitution. There are differences of opinion on whether the current interpretation of these enumerated powers as exercised by Congress is constitutionally sound.
One school of thought, strict constructionism, refers to a statement on the enumerated powers by Chief Justice Marshall in the case McCulloch v. Maryland:
> This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.
Another school of thought is referred to as loose construction. They often refer to different comments by Justice Marshall from the same case:
> We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended.
Historically, Congress and the Supreme Court have broadly interpreted the enumerated powers, especially by deriving many implied powers from them. The Tenth Amendment expresses a limitation on Congress in this regard:
> 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.
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Tenth Amendment
The Tenth Amendment to the United States Constitution was introduced in Congress by James Madison. It was originally proposed by Thomas Burke, a staunch supporter of states' rights in the Continental Congress. The purpose of the amendment was to reaffirm the principles of federalism and reinforce the notion that the federal government maintains only limited, enumerated powers.
The text of the Tenth Amendment is as follows: "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." In simpler terms, this amendment explicitly states that the federal government's powers are limited to those granted in the Constitution, and any powers not explicitly granted to the federal government are reserved for the states or the people.
The Tenth Amendment is similar to Article II of the Articles of Confederation, which states that each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right that is not expressly delegated to the United States in Congress. The amendment aimed to remove any ambiguity regarding the differences in state and federal power.
Despite facing criticism for being superfluous or unnecessary, the Tenth Amendment was ratified by the states, who declined to signal that there were any unenumerated powers in addition to unenumerated rights. The amendment has been interpreted by the Supreme Court as a truism, asserting that it "added nothing to the [Constitution] as originally ratified."
The Tenth Amendment has been invoked by states and local governments to assert exemption from certain federal regulations, particularly in the areas of labour and environmental controls.
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Frequently asked questions
Enumerated Powers are the powers directly written in the Constitution. They include the power to lay and collect taxes, regulate commerce, coin money, establish post offices, protect patents and copyrights, establish lower courts, declare war, and raise and support an Army and Navy.
The Tenth Amendment to the Constitution, ratified on December 15, 1791, clarifies that any powers not specifically given to the federal government, nor withheld from the states, are reserved for the states or the people.
The Necessary and Proper Clause, also known as the Elastic Clause, gives Congress the power to make laws that are "necessary and proper" to carry out the Enumerated Powers. This clause has been interpreted differently by strict and loose constructionists, with the former taking a narrower view of Congress's law-making powers.
In United States v. Alfonso D. Lopez, Jr. (1995), the federal government's authority to enact policies through the Commerce Clause was limited as there was no segment of the Constitution that authorized the establishment of "gun-free zones" on public school campuses. In Cooper v. Aaron (1958), the Tenth Amendment was used to determine that Arkansas could not delay the desegregation of schools, as it would violate the Constitution.
