How can a government designed in the 18th century deal with modern issues? The answer is in the ‘necessary and proper clause’ of the U.S. Constitution, better known as the ‘elastic clause,’ which allows Congress to make laws it needs to carry out its own powers.
Our Adapting Government
Governments, especially the U.S. government, look almost all-powerful. With an enormous military, a gigantic budget, and a global reach, the United States is a daunting presence on the world stage. It’s unnerving, then, to think that it exists mostly because of a few sheets of paper, with a description written in ink about two centuries ago. How did the U.S. government get from that to what it is today?
Think about the Internet, for example. There’s no way the Founding Fathers could have possibly imagined what the Internet can do, and there’s no way they could’ve created a government that would know how to deal with it. What’s truly amazing, then, about our Constitution is that there is, in fact, a rule that allows our government to accommodate the Internet, and toaster ovens, and endangered species, and interstellar travel…all the things the framers couldn’t themselves imagine. It’s called the necessary and proper clause, but it’s more often known by a catchier title: the elastic clause.
The Elastic Clause
If you want to know what the government can do, specifically, you can look at Article I, Section 8 of the Constitution, which lists Congress’ powers: it can levy taxes, declare war, and coin money, among other things. These are called the government’s enumerated powers, also called expressed powers, or delegated powers.
The immediate problem faced by the framers of the Constitution was that it was impossible to list all the powers of government. First off, there’s just too many; and second, they wanted to build a government that would last and stand the test of time. They knew that the world was going to change; remember, these were all very educated and enlightened men, raised in the 18th century, the Age of Reason. They knew they couldn’t predict what the world would look like in even ten years’ time, much less in a century.
So, they added a rule. Near the end of Section 8 of the Constitution, it says: ‘Congress has 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 United States, or any Department or Officer thereof.’
What does this mean? Really, two things: first, don’t think that the powers listed here are the government’s only powers. Second, Congress can make any law it needs to, in order to carry out its enumerated powers. This ‘necessary and proper’ clause, then, allows the government to stretch beyond its literal description; that’s why the clause is often nicknamed the elastic clause, since its flexibility allows the government to change and grow over time.
This sounds pretty vague, which is not the sort of thing that helps a brand new government; and it also sounds like it gave the government the authority to grow well beyond what many of the Founding Fathers probably intended. What it actually meant in practice wasn’t really clear until 1819, when the Supreme Court, whose job it is to sort out these fuzzy areas in the Constitution, dealt with a case called McCulloch v. Maryland.
McCulloch v. Maryland
In 1791, the federal government created a national bank, the Bank of the United States. There’s nothing in the Constitution that says Congress can do this, however, and a lot of states didn’t like it. So one of them – Maryland – decided to try and get rid of it by taxing it. So, the question was: can a state tax a federal bank? And can Congress create a national bank that states have to live with?
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