The United States Constitution

A forum for discussing the meaning of the United States Constitution for our political process.

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Location: Middleton, Massachusetts, United States

I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Monday, August 28, 2006

Necessary and Proper - The Boundary Between State and Federal Power

Articles of Confederation - Page 1The Constitution not only separates power among the legislative, executive, and judicial branches of the Federal government, but also attempts to separate power between the Federal government and the states. This is an attempt by someone who has zero formal legal training, but who is an amateur historian and intelligent enough to understand the plain text of the Constitution, to try to understand where Federal power ends and state power begins.

The Founding Fathers sought to strike a balance between Federal and state authority. Think of the balance as a pendulum. The Revolution's purpose was to rebel against what the colonists felt was excessive central authority. After the Revolution succeeded, the governing document of the successor government, the Articles of Confederation, the pendulum swung towards the individual states, perhaps too much so.

The Articles of Confederation was the basis of our government from 1781 until June 21, 1788, when New Hampshire ratified the Constitution. Sovereignty was explicitly reserved for each state. Article II states:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

Article III states that the Confederacy (that was the term they used, the seceding Southern states borrowed it during the Civil War) was a "firm league of friendship". The powers of the central government were limited to things like conducting foreign relations and declaring war, making trade among the states flow smoothly, and resolving disputes between states. Everything else was the province of the states. In other words, the powers of the central government were listed (or enumerated), limited to those powers the states, the ultimate source of sovereignty, were willing to relinquish.

One of the problems with this arrangement is that it lacked enforcement teeth. The Confederation Congress could not tax the states to, say, raise an army. It could only request the states for funds. There is one legislative chamber, the Congress, and no executive branch. When Congress adjourned, which could happen any time during the year, there was effecitvely no central government. Plainly, the powers of the national government needed to expand for this arrangement to work, without giving the Federal government excessive power.

The Constitution continued this philosophy of enumerating the powers of the Congress. Article I Section 8 lists, in separate paragraphs, the powers of Congress, expanding on the Articles. Congress can now do things like borrow money, create bankruptcy laws, create Federal courts, establish post offices, create copyright law, and establish a national capital (the future District of Columbia) - powers which were not available under the Articles of Confederation.

The last paragraph of Article I, Section 8, is a curious one. It states that 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 in any Department or Officer thereof.

The first 17 paragraphs specifically enumerate Congressional power. This last, 18th, paragraph, is open ended and has been the subject of much controversy, so much so that the Wikipedia article on the clause states that "the neutrality of this article is disputed". To me, this paragraph provides the teeth that the Articles of Confederation lacked. Congress can raise an army, but can it levy taxes on the states to fund the army? Congress can regulate commerce among the several states. If a commercial transaction occurs solely within the boundaries of one state, can it affect interstate commerce? If the "necessary and proper" clause is interpreted too broadly, there may not be much sovereignty left to the states.

These questions were already apparent during the ratification phase of the Constitution. The explicit provision of Article II of the Confederation that whatever powers are not reserved for Congress are left to the states is not in the baseline Constitution text. In addition, the Articles specified certain freedoms, such as freedom of the press, as reserved to the states. A number of smaller states were afraid of being swallowed up by Federal "tyranny". They insisted on amendments specifying specifically what Congress could not do, as well as an explicit reservation of state power. This was a big factor in the adoption of the Bill of Rights, which includes things Congress cannot do, such as the First Amendment guarantees. Also, the 10th Amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This is substantially Article II of the Articles of Confederation, with the addition of "or to the people". In the early 19th century, the John Marshall court defined the boundary between state and Federal power a bit more clearly, with the pendulum shifting definitely toward the Federal. In Gibbons v. Ogden, which I previously discussed, a Federal steamboat charter was held to be superior to a state steamboat charter. In McCullogh v. Maryland, Court ruled that the state of Maryland could not impose a tax on the National Bank of the United States - that the power to tax is the power to destroy. The pendulum has swung back and forth in the 200 years of our history. In recent history, from the New Deal to the early 1990s, the Federal powers seem to have expanded. The Rehnquist Court introduced a concept called the "New Federalism" which may be a bit of a return to state sovereignty.

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