Academic journal article Constitutional Commentary

The Dubious Enumerated Power Doctrine

Academic journal article Constitutional Commentary

The Dubious Enumerated Power Doctrine

Article excerpt

Abstract: The enumerated power doctrine maintains that Congress may undertake only the activities specially mentioned in the text of the Constitution. Even the necessary and proper clause at the end of article I, section 8 and the tax clause at the beginning were at one time said not to expand Congress's power beyond the enumeration.

The Constitution, however, neither says nor was intended to say that the listed powers were exclusive. The Articles of Confederation had limited the Congress to "expressly delegated" powers and the Framers removed the limitation because it had been "destructive to the Union." The best reading of the Constitution, moreover, is that it gives Congress the general power "to provide for the common Defence and general Welfare of the United States." The phrase is a synonym for the Convention's supposedly mandatory resolution allowing Congress to "legislate for the common interests of the Union." The enumerated powers of article I, section 8 are best read as desirable activities that are illustrative of the appropriate national sphere, but not exhaustive.

The claim that the enumeration of powers in article I, section 8 is exhaustive has never reflected actual practice. When activities necessary for the common interest arise, we generally find that they are authorized although not enumerated. Sometimes the unenumerated power is implied without any basis in text. Sometimes an unenumerated power is implied by stretching the words of the text to cover a desired power The common defense and general welfare standard tells us how far to stretch the words of the enumeration and tells us when implied powers are appropriate.

I. INTRODUCTION

The enumerated powers doctrine holds that the federal government has no general powers and no unexpressed powers. Article I, section 8 of the Constitution defines the powers of Congress in eighteen clauses. Clauses 2 through 17 allow Congress, for example, to borrow money; to regulate commerce; to enact nationwide laws for bankruptcies, patents, copyrights, and naturalization; to establish post offices, post roads, federal courts, and a federal city; and to raise and support an army, navy, and militia. (1) Under the enumerated powers doctrine, the powers listed in these clauses are exhaustive. "The powers delegated by the proposed Constitution to the Federal Government, are few and defined," Madison famously said in Federalist No. 45. "Those which are to remain in the State Governments are numerous and indefinite." (2)

In the strictest Jeffersonian form of the argument, neither taxation nor the "necessary and proper" clause extend the range of the congressional powers beyond the list of sixteen in clauses 2 through 17. Clause 1 of article I, section 8 allows Congress to lay and collect taxes "to provide for the common Defence and general Welfare." Clause 18 allows Congress to "enact all Laws necessary and proper" to effectuate other powers. When the Jeffersonians and the Hamiltonians split into adverse camps, however, the Jeffersonian branch insisted that both taxation and "necessary and proper" must be understood narrowly so as to keep the federal government within the boundaries of the enumeration. The tax clause was construed to mean only taxes necessary to accomplish the subsequently listed powers of clauses 2 through 17. The "necessary and proper" clause was construed to cover only those instrumental or administrative activities, too numerous and detailed be included in a Constitution, that were strictly necessary for the accomplishment of the goals enumerated in clauses 2 through 17. (3) "The tenet that Congress has only the power to provide for enumerated powers, and not for the general welfare," Jefferson wrote in 1811, "is almost the only landmark which now divides the federalists from the republicans." (4)

The Constitution, however, neither says nor was intended to say that enumerated powers of clauses 2 through 17 are exhaustive. …

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