Last week, I posted
about a law professor who had an intriguing analysis of the "necessary and proper" clauses in the US Constitution. John Mikhail has now written his first detailed analysis
of the portion of the clauses which were well understood by the Founders' generation, but no longer very well among modern jurists who may lack the deep historical knowledge Mikhail brings to his discussion.
Interestingly, though, Mikhail appears to assume the "enumerated" powers should only include the powers identified starting the second paragraph of Article I, Section 8. That made me say, "Whoa, pardner!" Let's look at the Section 8 in its entirety
with the first paragraph bolded before we surrender to that point:
The Congress shall have Power 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
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 establish Post Offices and post Roads;
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 and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
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.
Here is my not so rhetorical question: Why isn't the first paragraph as much an "enumerated" power of Congress as those powers discussed in the second through sixteenth paragraphs? Enumeration is a listing. It can be specific or general in each part of the list. The first enumeration says Congress can lay and collect taxes. The first enumeration also says Congress can pay debts. It further says Congress can provide for the "common defence." It says Congress may promote "the general welfare," which in those days meant far more than giving tax money to poor women with children.
Yes, yes, I know what Madison said in Federalist Paper no. 41
(link corrected) , in the last five paragraphs. But Madison is still begging the question of whether the powers identified in paragraphs 2-16 of Section 8 are the only
powers of Congress. The other powers may be more specific than the more general statement of "common defence and general welfare." But did Madison mean to say the other paragraphs are exhaustive
? Look carefully at what Madison says in the second of the last five paragraphs in Federalist Paper no. 41:
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.
The first paragraph in Article I, Section 8 is therefore, to Madison, itself an enumeration just like the "other" enumerations in paragraphs 2-16. Madison goes on to say, though:
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
Here, Madison is saying the others define more particularly what the first paragraph says in Section 8. Still, he does not go so far as to say it is completely exhaustive. He knows better than to be that explicit, because Madison had already said, in Federalist Paper no. 37
that the Constitution was itself a document that is vague and built on compromise where even the framers may not have been unanimous or even close to it in what was meant by each phrase or sentence.
Alexander Hamilton, in his Report on Manufactures, 1791
, in the first two paragraphs definitely saw the first paragraph in Section 8 as an enumerated power that was expansionary. He wrote in pertinent part of the Report, again in 1791:
...The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.
It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper...
Thus, it would be wrong to reject the point Hamilton was making just as the US government was taking its first steps in practical policy-making. The first paragraph of Section 8 is not limited by what follows in the second through sixteenth paragraphs. Instead, the first paragraph is a general enumeration of powers followed by more specific examples that are not exhaustive.
For those who say, "Oh Freedman, you're wrong. The second through sixteenth are the only things the Congress can do," as if the second through sixteenth paragraphs exhaust the possibilities. Those making that argument, however, have to then say Chief Justice Marshall was wrong in M'Culloch
to conclude that the first paragraph of Section 8 is as much a part of Congress' "enumerated powers" as the remaining paragraphs of Section 8 before one reaches the "necessary and proper" clauses.
Marshall explicitly wrote at 17 US at 406 of the unanimous opinion in M'Culloch:
Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word 'expressly,' and declares only, that the powers 'not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;' thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument.
Marshall then added at page 415 of the opinion:
...The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, so far as human prudence could insure, their beneficial execution. This could not be done, by confiding the choice of means to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared, that the best means shall not be used, but those alone, without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
Marshall is explicitly saying paragraphs 2-16 of Section 8 are not and cannot be exhaustive examples of the first paragraph's enumeration of powers. Again, if one notices, law professor Randy Barnett and his pals are now attacking Marshall and M'Culloch
, and really, they have to, don't they? And they have to attack Hamilton in the Report on Manufactures. And they have to avoid admitting Madison's statements in Federalist Paper no. 41 (especially in context with Federalist Paper no. 37) are less than clear. They even have to deny how crafty Madison was in trying to get the Constitution passed as if he was not engaged in some double talk in various Papers (Note: Madison was particularly crafty in his phrasing for the Second Amendment, as Garry Wills pointed out near the end of Wills' famous essay
in the NY Review of Books over 15 years ago.)
I found it interesting that before the formal opinion in M'Culloch,
there are statements in the summary of the briefing or arguments setting forth a strong belief that the first paragraph in Section 8 is as much an enumeration as the succeeding paragraphs. Note the language at 17 US at 353, 354 in M'Culloch
We contend, that it was necessary and proper to carry into execution several of the enumerated powers, such as the powers of levying and collecting taxes throughout this widely-extended empire; of paying the public debts, both in the United States and in foreign countries; of borrowing money, at home and abroad; of regulating commerce with foreign nations, and among the several states; of raising and supporting armies and a navy; and of carrying on war.
Now, isn't that interesting that the power to levy and collect taxes and pay the public debts are "enumerated powers." This point appears again later in the discussion at 17 US at 381:
All the objects of the government are national objects, and the means are, and must be, fitted to accomplish them. These objects are enumerated in the constitution, and have no limits but the constitution itself. A more perfect union is to be formed; justice to be established; domestic tranquillity insured; the common defence provided for; the general welfare promoted; the blessings of liberty secured to the present generation, and to posterity.
The attorneys supporting the bank are explicitly stating that common defence and general welfare are themselves enumerations of Congressional power. The enumeration may be general, but they are part of a list (Note the definition
of "enumerated" does use the word "specify" in the definition, but it is in the context of listing, not meaning that the words be narrowly stated.)
Therefore, let us continue to argue about the scope of Congressional power in particular areas, but let us not, at the same time, give too much credence to any argument that denies a broad power to Congress, including both expressed and implied powers. For such an argument does go against the larger intent of many people in the Constitution's framers' generation, and against the early Supreme Court jurisprudence, which includes not merely M'Culloch
--as well as Gibbons v. Ogden
and other early case law. It remains my point that Wickard v. Filburn
, decided in 1942, is a restoration
of Marshall's jurisprudence, not a departure from the founders' so-called "original intent."