Isabella Carter
The Necessary and Proper Clause, also known as the Supremacy Clause, is often regarded as the most controversial clause in the US Constitution. This clause gives Congress broad powers to make and enforce laws, even if they are not explicitly mentioned in the Constitution. The clause has been interpreted differently by various scholars and justices, with some arguing for a broader scope and others for a narrower one. The Necessary and Proper Clause has been invoked in landmark Supreme Court cases such as McCulloch v. Maryland (1819), shaping the balance of power between the federal government and the states. Another highly contentious aspect of the Constitution is the Fourteenth Amendment's Due Process Clause, which has been used to protect unenumerated rights, sparking debates about the role of the Supreme Court in interpreting and expanding constitutional rights.
| Characteristics | Values |
|---|---|
| Clause | Due Process Clause |
| Controversy | "Substantive due process" jurisprudence |
| Reason | The Supreme Court has protected rights not listed in the Constitution |
| Examples of Unenumerated Rights | Right to direct the education and upbringing of one's children, right to procreate, right to bodily integrity, right to use contraception, right to marry, right to abortion, and right to sexual intimacy |
| Clause | Supremacy Clause |
| Controversy | Refers to "judicial review" and makes valid federal statutes part of "the supreme Law of the Land" |
| Clause | Necessary and Proper Clause |
| Controversy | The scope of the clause is disputed, with some arguing it is broad and others arguing it is narrow |
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What You'll Learn
The Necessary and Proper Clause
The clause came about during a critical period in US history following the Revolutionary War and the adoption of the Articles of Confederation in 1781. The Articles of Confederation, which served as the first framework for the United States, quickly revealed significant flaws. This led to the Constitutional Convention in 1787, where Federalists and Antifederalists debated the necessity of a flexible Constitution. The Federalists argued that the Necessary and Proper Clause was essential to accommodate the evolving needs of the country, while the Antifederalists feared it would grant the central government unlimited power. Ultimately, the Federalists prevailed, and the Constitution was ratified with the inclusion of this clause.
The clause has been invoked in various Supreme Court cases, including Juilliard v. Greenman (1884), which considered the power of Congress to make paper notes legal tender, and United States v. Comstock (2010), which examined the indefinite civil commitment of federal prisoners after their criminal sentences had expired. The Necessary and Proper Clause continues to be a significant aspect of US constitutional law, shaping the interpretation and application of congressional powers.
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The Fourteenth Amendment
The Due Process Clause of the Fourteenth Amendment applies the Bill of Rights against state governments, while the Fifth Amendment's similar clause has been used for reverse incorporation of the Equal Protection Clause against the federal government. The Equal Protection Clause was written to constitutionalize the anti-discrimination principles of the Civil Rights Act of 1866 and prevent the enforcement of southern states' Black Codes. In Bolling v. Sharpe (1954), the Supreme Court used this doctrine to prevent the federal government from maintaining segregated public schools in Washington, D.C.
The interpretation of the Fourteenth Amendment's Due Process Clause has been contentious, with some arguing that it protects unenumerated rights. The most natural textual source for these rights is likely the Privileges and Immunities Clause of the amendment, which prohibits states from denying any citizen the "privileges and immunities" of citizenship. However, in The Slaughter-House Cases (1873), this interpretation was rejected, leading the Court to turn to the Due Process Clause as a source of unenumerated rights. This has been controversial as it allows unelected Supreme Court justices to impose their policy preferences on the nation.
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The Due Process Clause
One of the most contentious debates relating to the Due Process Clause is the concept of substantive due process. Under this doctrine, the Supreme Court has protected rights not explicitly listed in the Constitution, including the right to direct the education and upbringing of one's children, the right to procreate, the right to bodily integrity, the right to use contraception, the right to marry, the right to abortion, and the right to sexual intimacy. The controversy surrounding substantive due process arises because it empowers unelected Supreme Court justices to impose their policy preferences on the nation, replacing popular sovereignty. Critics argue that the doctrine lacks a solid foundation in the constitutional text and history, and that it undermines the usual source of constitutional rights, which are typically the result of political debate and compromise.
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The Supremacy Clause
In the late 18th and early 19th centuries, the Supreme Court relied on the Supremacy Clause to solidify the federal government's role in managing national affairs. The Court's decisions during this period reinforced dual federalism, reflecting a sharp division between federal and state powers. Over time, the Court's application of the Supremacy Clause evolved, with early-20th-century rulings introducing the concept of field preemption, where federal legislation implicitly prevents states from enacting laws on the same subject. This doctrine was aggressively employed in some cases, leading to the automatic displacement of state laws in certain fields due to congressional action.
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Unenumerated rights
The idea of unenumerated rights is not strange—the Ninth Amendment itself suggests that the rights enumerated in the Constitution do not exhaust "others retained by the people". The most natural textual source for those rights is probably the Privileges and Immunities Clause of the Fourteenth Amendment, which prohibits states from denying any citizen the "privileges and immunities" of citizenship. However, when The Slaughter-House Cases (1873) foreclosed that interpretation, the Court turned to the Due Process Clause as a source of unenumerated rights.
The Supreme Court has interpreted the Fourteenth Amendment to protect against state infringement of certain unenumerated rights, including the right to send one's children to private school, the right to marital privacy, the right to travel, the right to vote, and the right to keep personal matters private. Similarly, the Supreme Court of Ireland is often the main source of unenumerated rights, such as the right to bodily integrity, the right to marry, and the right to earn a living.
One of the most contentious debates relating to the Due Process Clause concerns substantive due process jurisprudence, where the Supreme Court has protected rights not specifically listed in the Constitution. Currently, such unenumerated rights include the right to direct the education and upbringing of one's children, the right to procreate, the right to bodily integrity, the right to use contraception, the right to marry, the right to abortion, and the right to sexual intimacy. The concern with substantive due process is that it replaces popular sovereignty with the views of unelected Supreme Court justices, who can impose their policy preferences on the nation.
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Frequently asked questions
While there are several clauses in the US Constitution that have been controversial, one that stands out is the Due Process Clause of the Fourteenth Amendment.
The Due Process Clause guarantees "due process of law" before the government may deprive someone of "life, liberty, or property." Under the substantive due process jurisprudence, the Supreme Court has protected rights not specifically listed in the Constitution, such as the right to privacy, the right to marry, and the right to abortion. This has been controversial because it gives unelected Supreme Court justices the power to impose their policy preferences on the nation.
Yes, another controversial clause is the Supremacy Clause, which states that the Constitution and federal laws take priority over any conflicting rules of state law. While the basic principle of this clause is not controversial, some scholars interpret it as giving Congress additional powers, which has been a point of dispute.
Yes, there have been several significant Supreme Court cases that have interpreted the Due Process Clause. One example is Gideon v. Wainwright (1963), where the Court incorporated the Fourth Amendment's protection of privacy using the Due Process Clause, guaranteeing the right to legal counsel. Another case is Estelle Griswold v. Connecticut, where Justice Douglas articulated a fundamental "right to privacy" for married couples seeking contraception, protected by the Due Process Clause.
The Case or Controversy Clause, found in Article III, Section 2, Clause 1 of the Constitution, sets out the scope of federal judicial power. It prohibits federal courts from issuing advisory opinions or hearing cases that are unripe or moot. While not a clause per se, the requirement for plaintiffs to establish their standing to sue under this clause has been controversial, as it prevents the judicial process from being used to usurp the powers of the legislative and executive branches.
