AuthorCharles D. Kelso; R. Randall Kelso
ProfessionProfessors of Law

Page 700

§ 18 1 National Power: Its Nature and Scope

As noted at the beginning of Part IV, the Preamble to the Constitution announced the broad purposes for which the Constitution was framed. It states: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

As noted at § 5.2.1 nn.25-27, in his 1953 treatise, Politics and the Constitution,1 Professor Crosskey argued that since the Preamble covers virtually all the subjects for which a government might regulate, the Constitution must have been intended to create plenary power in the federal government, subject to limitations on power indicated by clear constitutional text. In his 1833 Commentaries on the Constitution of the United States,2 Justice Story discussed more limited inferences to be drawn from the Preamble. He stated that the Preamble's "true office is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them."3 Justice Story then indicated, consistent with a natural law focus on "purpose" and "mischiefs to be remedied," discussed at § nn.8-12, how each of the various clauses of the Preamble were related to various mischiefs which had arisen under the Articles of Confederation that needed to be remedied.4 Various purposes behind constitutional doctrine, organized consistent with the Preamble, are discussed in Chapter 8, which is entitled, "The Purposes or Ends of Constitutional Interpretation."

With regard to the specific issue of federal versus state power, as with any constitutional issue, this subject can be studied in terms of the literal text of a constitutional provision; arguments of purpose; arguments of context, particularly related provisions within the Constitution and theories of federalism which structured the Constitution; the history leading up to a constitutional provision's ratification; legislative, executive, and social practice under that provision; the Supreme Court's precedents in interpreting that constitutional provision; and prudential considerations. Over time, legislative and executive practice and Court precedents have become the most important elements. However, it is worthwhile to start by considering text, structure, and history. Page 701

§ 18 1.1 Background for Studying the Nature of Federal Power: Text, Structure of the Constitution, and History

Perhaps the most important single section of the Constitution is Article I, § 8, the enumeration of congressional powers. It begins with the phrase, "The Congress shall have Power," and then continues in seventeen clauses to list powers, concluding in clause 18 with the Necessary and Proper Clause. That clause provides 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 greatest constitutional struggles in the first 150 years of our Nation, apart from the related question of secession, were fought over the meaning of three of the provisions in Article I, § 8: clause 1, the General Welfare Clause; clause 3, the Commerce Clause; and clause 18, the Necessary and Proper Clause. The political background for much of this time was: (1) slavery and the racial problems that developed in the aftermath of slavery; (2) economic policy, particularly regarding tariffs and the protection of manufacturing in the United States from foreign competition; and (3) the role of the federal government, as opposed to state governments, in the promotion of economic activity generally.

Clause 1 of Article I, § 8, which includes the General Welfare Clause, provides: "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." There are at least three ways that one could read this Clause:

(1) The narrowest view, espoused originally by Thomas Jefferson and James Madison, was that it granted a power to tax and spend only with respect to the specifically enumerated legislative powers listed in the remaining 17 clauses of § 8.5 Jefferson's views on this matter are summarized at § 7.1 nn.5-8.

(2) Alexander Hamilton wrote that it granted a power to levy taxes generally, and an independent power to pay the debts and provide for the common defense and general welfare - in short, a general spending power. Justice Story agreed with this view in his 1833 work, Commentaries on the Constitution of the United States.6

(3) The broadest interpretation of this Clause is that it grants plenary power to Congress to legislate on any matter, through regulation or by spending, as part of a plenary power to levy taxes, pay debts, and provide for the common defense and general welfare of the United States.7 Page 702

In his treatise, Politics and the Constitution,8 Professor Crosskey concluded that the correct view was the third, or broadest, view. Responding to the argument that under this view the rest of the enumeration of powers in Article I, § 8 would be superfluous, he said that the primary purpose of the rest of § 8 was not to give the federal government power, but to allocate power and insure that a number of powers which historically, and according to Blackstone, belonged to the executive branch in England, the King, were transferred to the legislative branch.

This broader view has never been adopted by the Supreme Court. Instead, in cases like United States v. Butler, Steward Machine Co. v. Davis, and Helvering v. Davis,9 the Supreme Court has adopted the second view of Hamilton and Story that the General Welfare Clause is a general grant of power to tax and spend, but that congressional power to regulate must be found in one of the remaining clauses of Article I, § 8. Some commentators have argued based on text, context, and history for the first, narrower view of Jefferson and Madison.10

The Commerce Clause, Article I, § 8, cl. 3, provides that Congress has the power "to regulate Commerce with foreign Nations, among the several States, and with the Indian Tribes." The main points of contention in interpreting the Commerce Clause have been: (1) what constitutes "commerce"; and (2) how to interpret the phrase "among the several States." Regarding the first issue, the question involves whether "commerce" has a limited meaning, restricted mostly to buying and selling, and thus not covering activities such as manufacturing, mining, or agriculture, or does "commerce" have a broader meaning, encompassing all forms of economic commercial activity. Regarding the second issue, the question involves whether "among" means "between," so that only interstate commerce can be regulated by Congress, or does "among" include commerce carried on within a state, interpreting "States" in a collective fashion, so that any commerce carried on within the United States is commerce "among" the States. Page 703

As discussed at § 18.2.5, the Court has settled on the broader meaning of "commerce" to include all forms of economic activity, but on the more limited interpretation of "among" meaning "between."...

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