Elastic Part II

The federal government has many ways to skirt the minor inconvenience of instituting programs that the Constitution did not empower it to do. I am going to concentrate on two of the ways they are able to promote their agenda. This post will expand on the elastic clause and its loose interpretation. My next post will focus on federal grants in aid and how they are used to expand the federal government’s reach.

Loose interpretation of the Elastic Clause:

Clause 18: 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.

Congress’ scope of power is detailed in the 18 clauses of Article I Section 8 of the US Constitution. Clauses 1-17 list the specific expressed powers of Congress. Clause 18 gives Congress the power to make laws that are necessary and proper to carrying out their expressed powers.

This clause was critical to the Constitution because the Founding Fathers knew that without it, Congress would have its authority questioned on a regular basis (a common occurrence under the Articles of Confederation). Any document that attempted to list out all the expressed powers of Congress would be similar to our current Tax Code in size (1600+ pages) and would be weighed down with obsolescence as new technologies arose.

In an effort to persuade the State of New York to ratify the Constitution in the years 1787 and 1788, many pro-Constitution essays were printed in New York newspapers. These essays were signed with the pen name Publius. The 85 essays have been compiled and published as “The Federalist Papers”. Originally published under a pen name, it was later revealed that the authors included James Madison, Alexander Hamilton, and John Jay. Many consider James Madison to be the “Father of the Constitution”. In Federalist Paper #44, Madison writes of the 18^th Clause:

“Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "EXPRESSLY" with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction.” http://www.foundingfathers.info/federalistpapers/

The evidence clearly establishes that the authors of the Constitution were purposefully vague in detailing the methods for the federal government to exert its power. This illustrates the genius of the authors who at the time did not have the benefit of sampling many different forms of republican government for ideas. They successfully created a constitution that has stood the test of time, even though it was written when we were largely an agrarian society.

The issue is not a dispute of whether or not the authors of the Constitution were purposefully vague. It is a disagreement over what the intent of the Founding Fathers was and whether the Constitution should be strictly interpreted, considered a living document, or completely disregarded when proposing laws. My research has shown me that since the late 19^th Century, the federal government has branched out into areas that are beyond its intended scope with interventionist social and entitlement programs. In my opinion, individuals need to have greater freedom to pursue their own happiness and not a happiness that is determined in Washington, DC.

I turn to James Madison again for an explanation of the intended scope of the federal government.

Excerpt from Federalist #45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Unfortunately, judicial activists in the Supreme Court have had a different interpretation of the Constitution. The New Deal and Great Society instituted interventionist federal programs and created the expectation that the government is meant to be your champion rather than relying on personal accountability. Some of the programs instituted in the New Deal were deemed unconstitutional, but many withstood the challenges. This has turned the federal government into the bloated and wasteful mess it is today.

In the next post we will see how the federal government uses grants in aid to promote their agenda.