Repost: The Constitution’s "Elastic Clause"

Earlier this week I re-posted a review from Thomas Wood’s book, 33 Questions about American History You’re Not Supposed to Ask.  With the upcoming Supreme Court review of Obamacare, it’s pertinent to review that so-called “Elastic Clause” that Obama uses as the authority to impose Obamacare—the preemption of federal power over the states and the individual.

Let’s take another look at that clause as it was originally intended by the Founders.  And let us also hope that SCOTUS supports that interpretation and reverses Chief Justice John Marshall’s decision.

***

Today’s report covers the chapter titled, “Does the Constitution really contain an “Elastic Clause”?”

From Woods…

In its listing of the powers of Congress, Article I, Section 8 of the Constitution includes the 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 department or officer thereof.” This “necessary and proper” clause has proven to be a particular favorite among people and politicians who would expand the federal government’s powers beyond those delegated to it. The typical high school social studies class presents it as an “elastic clause” that can be pressed into service to authorized just about anything.

To understand this clause, it’s important to understand the context under which it was created and what it was NOT intended to mean. 

At the Constitutional Convention, one participant, Gunning Bedford, proposed a clause that would have added broad, sweeping powers to the federal government—open ended powers to enact laws “in all cases for the general interests of the Union.” It was soundly rejected. 
Instead of that broad statement, a list of limited, enumerated powers was written into the Constitution. That list was followed by the clause that authorized those powers that were “necessary and proper”, i.e., the “necessary and proper” clause authorized the enumerated list of specific powers. Those powers only. What has happened since the creation of the Constitution is the interpretation of the “necessary and proper” clause to enable those broad, wide-sweeping, open-ended powers that the Constitution Convention rejected!

When the Constitution was circulated to the states for ratification, questions concerning this clause arose and the supporters of the Constitution reassured the Anti-Federalist groups, skeptical of centralized power after ridding themselves of the British government, that the clause would not and could not be used to allow the federal government to usurp broad powers not enumerated elsewhere in the Constitution. The answer provided to Virginia’s convention ratifying the Constitution was that the clause “only enables them [Congress] to carry into execution the powers given to them, but gives them no additional power.” James Madison held the same view.

The Myth:
The Constitution includes an “elastic clause” that gives the federal government sweeping power to do what it considers to be useful of convenient.[1]

The Truth:
The Framers explicitly and repeatedly affirmed that the Constitution granted the federal government only the authority to carry out its specifically enumerated powers. The Supreme Court ignored that history to grant the federal government far more expansive powers.

The Supreme Court in the case of McCulloch v. Maryland, a decision written by Chief Justice John Marshall, decided to interpret the “necessary and proper” clause to mean “convenient” or “useful”, the very purpose that Jefferson in the Federalist papers, Madison to the Virginia convention and others had expressly rejected. [2]

[1] Thomas J. Woods, Jr., 33 Questions about American History You’re not Supposed to Ask, 2007, Crown Forum Press.

[2] Thomas Jefferson, Notes on the state of Virginia, ed. David Waldstreicher (Boston: Bedford/St. Martin’s, 2002) 168-69.