Isabella Carter
The Necessary and Proper Clause, also known as the Elastic Clause, is a significant aspect of the U.S. Constitution, empowering Congress with the ability to adopt legislation deemed necessary and suitable for executing its enumerated powers. This clause, found in Article I, Section 8, Clause 18, has been pivotal in Supreme Court cases like McCulloch v. Maryland, where the Court upheld Congress's ability to exercise implied powers to address the nation's evolving needs. The Necessary and Proper Clause, included to address limitations in the Articles of Confederation, grants Congress the flexibility to adapt to situations requiring powers beyond those specifically listed in the Constitution.
| Characteristics | Values |
|---|---|
| Necessary and Proper Clause | Allows Congress to adopt any legislation deemed "necessary and suitable" for executing its "enumerated" powers |
| Enables Congress to respond to the evolving needs of the nation | |
| Facilitates the adaptability of Congress | |
| Enables Congress to imply powers that are essential to executing its listed responsibilities | |
| Allows Congress to use implied powers that are not expressly defined in the Constitution | |
| Fourteenth Amendment Due Process Clause | Source of an array of constitutional rights, including procedural protections, individual rights, and fundamental rights |
| Requires the government to follow the law before depriving someone of "life, liberty, or property" | |
| Extends liberties and rights granted by the Bill of Rights to formerly enslaved people |
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The Necessary and Proper Clause
> "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."
The Clause was included in the Constitution to address the shortcomings of the Articles of Confederation, which limited federal powers to only those expressly delegated to the United States. The Necessary and Proper Clause was not a primary focus of debate at the Constitutional Convention, but its interpretation quickly became a major issue during the ratification of the Constitution and in the early Republic. Anti-Federalists expressed concern that the Clause would grant the federal government boundless power. However, Federalists, including Alexander Hamilton and James Madison, argued that it would only permit the execution of powers granted by the Constitution.
The landmark Supreme Court case McCulloch v. Maryland (1819) interpreted the Necessary and Proper Clause as granting implied powers to Congress in addition to its enumerated powers. In this case, the Court ruled that Congress had the implied power to establish a bank, as it was a proper and suitable instrument to aid in Congress's enumerated power to tax and spend. This case set a precedent for the interpretation of the Necessary and Proper Clause, with the Court stating that the Clause:
> "purport [s] to enlarge, not to diminish the powers vested in the government."
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McCulloch v. Maryland (1819)
The case involved James W. McCulloch, a federal cashier at the Baltimore branch of the Second National Bank of the United States. McCulloch refused to pay taxes imposed by the state of Maryland, which had set a precedent by requiring taxes on all banks not chartered by the state. The state of Maryland filed a suit against McCulloch to collect the taxes, arguing that it had the power to tax any business within its borders.
The Supreme Court, led by Chief Justice John Marshall, ruled in favor of McCulloch, deciding that the Federal Government had the right and power to establish a national bank and that states did not have the power to tax the Federal Government. This decision was based on the interpretation of the "Necessary and Proper" Clause (also known as the "Elastic Clause"), which granted Congress the authority to “make all laws which shall be necessary and proper for carrying into execution” the work of the Federal Government.
The Court held that Congress had implied powers derived from those listed in Article I, Section 8 of the Constitution. The "Necessary and Proper" Clause gave Congress the power to establish a national bank, as it was “necessary and proper” for Congress to carry out its enumerated powers. Chief Justice John Marshall wrote, "Although, among the enumerated powers of government, we do not find the word 'bank,' we find the great powers to lay and collect taxes; to borrow money; to regulate commerce. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
The McCulloch v. Maryland decision had a significant impact on the interpretation of federal power and the division of powers between state and federal governments. It established the principle that states cannot interfere with the federal government when it exercises its implied powers under the Necessary and Proper Clause to further its express constitutional powers.
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The Due Process Clause
The Fourteenth Amendment, meanwhile, promises that all persons in the United States shall enjoy the "equal protection of the laws". This means that they cannot be discriminated against without good reason. The Fourteenth Amendment allowed states to disenfranchise those convicted of rebellion or other crimes, including former Confederate soldiers.
The Supreme Court has interpreted the Due Process Clauses in the Fifth and Fourteenth Amendments identically. The Due Process Clauses apply to both citizens and non-citizens within the United States, although non-citizens can be stopped, detained, and denied past immigration officials without the protection of the clause.
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Procedural due process
In criminal procedures, the court looks at whether the government's procedure is offensive to the notion of fundamental fairness for the due process analysis. For example, in criminal cases, the Eighth Amendment guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment.
In civil contexts, the courts balance private interests, the government's public interest, and the possibility of the government procedure's erroneous deprivation of private interest when evaluating government conduct. Historical practice is often relevant in due process cases, as the Court analyzes the requirements of due process by examining the settled usages and modes of proceedings of the common and statutory law of England during pre-colonial times and the early years of the Republic.
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Substantive due process
The Due Process Clause, found in the Fifth and Fourteenth Amendments to the US Constitution, states that no person shall be "deprived of life, liberty, or property without due process of law". The Fourteenth Amendment extends this obligation to the states.
The Supreme Court has also construed the Clause to protect substantive due process, holding that there are certain fundamental rights that the government may not infringe even if it provides procedural protections. Critics of substantive due process decisions typically assert that those liberties ought to be left to the more politically accountable branches of government.
Originalists, who usually oppose substantive due process rights, do not necessarily oppose the protection of rights that have been protected using substantive due process. Instead, most originalists believe that such rights should be identified and protected through legislation, passing amendments to the Constitution, or via other existing provisions of the Constitution.
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