The dubious enumerated power doctrine.

• Author: Johnson, Calvin H.

Abstract: The enumerated power doctrine maintains that Congress may undertake only the activities specially mentioned in the text of the Constitution. Even the necessary and proper clause at the end of article I, section 8 and the tax clause at the beginning were at one time said not to expand Congress's power beyond the enumeration.

The Constitution, however, neither says nor was intended to say that the listed powers were exclusive. The Articles of Confederation had limited the Congress to "expressly delegated" powers and the Framers removed the limitation because it had been "destructive to the Union." The best reading of the Constitution, moreover, is that it gives Congress the general power "to provide for the common Defence and general Welfare of the United States." The phrase is a synonym for the Convention's supposedly mandatory resolution allowing Congress to "legislate for the common interests of the Union." The enumerated powers of article I, section 8 are best read as desirable activities that are illustrative of the appropriate national sphere, but not exhaustive.

The claim that the enumeration of powers in article I, section 8 is exhaustive has never reflected actual practice. When activities necessary for the common interest arise, we generally find that they are authorized although not enumerated. Sometimes the unenumerated power is implied without any basis in text. Sometimes an unenumerated power is implied by stretching the words of the text to cover a desired power The common defense and general welfare standard tells us how far to stretch the words of the enumeration and tells us when implied powers are appropriate.

1. INTRODUCTION

   The enumerated powers doctrine holds that the federal government has no general powers and no unexpressed powers. Article I, section 8 of the Constitution defines the powers of Congress in eighteen clauses. Clauses 2 through 17 allow Congress, for example, to borrow money; to regulate commerce; to enact nationwide laws for bankruptcies, patents, copyrights, and naturalization; to establish post offices, post roads, federal courts, and a federal city; and to raise and support an army, navy, and militia. (1) Under the enumerated powers doctrine, the powers listed in these clauses are exhaustive. "The powers delegated by the proposed Constitution to the Federal Government, are few and defined," Madison famously said in Federalist No. 45. "Those which are to remain in the State Governments are numerous and indefinite." (2)

   In the strictest Jeffersonian form of the argument, neither taxation nor the "necessary and proper" clause extend the range of the congressional powers beyond the list of sixteen in clauses 2 through 17. Clause 1 of article I, section 8 allows Congress to lay and collect taxes "to provide for the common Defence and general Welfare." Clause 18 allows Congress to "enact all Laws necessary and proper" to effectuate other powers. When the Jeffersonians and the Hamiltonians split into adverse camps, however, the Jeffersonian branch insisted that both taxation and "necessary and proper" must be understood narrowly so as to keep the federal government within the boundaries of the enumeration. The tax clause was construed to mean only taxes necessary to accomplish the subsequently listed powers of clauses 2 through 17. The "necessary and proper" clause was construed to cover only those instrumental or administrative activities, too numerous and detailed be included in a Constitution, that were strictly necessary for the accomplishment of the goals enumerated in clauses 2 through 17. (3) "The tenet that Congress has only the power to provide for enumerated powers, and not for the general welfare," Jefferson wrote in 1811, "is almost the only landmark which now divides the federalists from the republicans." (4)

   The Constitution, however, neither says nor was intended to say that enumerated powers of clauses 2 through 17 are exhaustive. The Framers used the Articles of Confederation as a model. In carrying over the Articles' wording and structure, they removed old Article II's limitation that Congress would have only powers "expressly delegated" to it. When challenged about the removal, the Framers explained that the expressly delegated limitation had proved "destructive to the Union" and that even the passport system had been challenged. (5) Proponents of the Constitution defended the deletion of "expressly" through to the passage of the Tenth Amendment. That history implies that not everything about federal power needs to be written down.

   The best reading of the Constitution, moreover, gives the federal government a general power "to provide for the common Defence and general Welfare." The Constitutional Convention adopted resolutions that were supposedly binding on the committees of the Convention that actually drafted the text. The governing resolution of the Convention on federal power provided that Congress would have all of the powers it had under the Articles of Confederation, plus the power "to legislate in all Cases for the general Interests of the Union." (6) The drafting committees took the common defense and general welfare language from Articles of Confederation, apparently as a synonym loyal to the governing resolution of the Convention.

   The standard, "to provide for the common Defence and general Welfare" is found in clause 1 of section 8, which gives Congress the power to tax. Once taxation is allowed for the common defense and general welfare, however, then the broad eighteenth clause allows Congress to enact "all Laws necessary and proper" to the "common Defence and general Welfare." (7) As Chief Justice Marshall said in McCulloch v. Maryland, "Let the end be ... within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional." (8) In 1830 Madison feared that the necessary and proper clause would transform the taxation clause into a justification for achieving the common defense and general welfare by any instrument. (9) Madison dreaded that interpretation, but he could see no viable stopping point once taxation was allowed for the common defense and general welfare. The interpretation that Madison dreaded in 1830 is in fact faithful to the text, to our values, and to our practices.

   The Founders, moreover, would not have drawn an important distinction between "taxation" and "regulation." Indeed, they often switched the words as if "taxation" and "regulation" were synonyms. Regulation at the time of the founding was generally considered a lesser included power that the federal government could exercise as a matter of course once it commanded the paramount power of taxation.

   Reading the Constitution as giving a general power to provide for the general welfare means that the enumerated powers of clauses 2 through 17 are illustrative of what Congress may do within an appropriately national sphere, but are not exhaustive. The appropriate maxim of construction for section 8 is not the hard-edged expressio unius est exclusio alterius exclusio (to express one thing excludes all others), but the gentler maxim of ejusdem generis (of the same class or kind). Ejusdem generis means that unstated items covered by a general standard must be of the same class as the enumerated items, but the enumerated items are not exclusive. (10) The phrase, "to provide for the common Defence and general Welfare," in the first clause of section 8 provides the general principle that both enumerated and implied powers must satisfy.

   The standard, "to provide for the common Defence and general Welfare," does limit the federal government to those things appropriately within the national sphere. "[C]ommon Defence and general Welfare" entered the Constitution as a synonym for the "necessities" or "exigencies of the Union." (11) The Convention resolution that was supposed to bind the committees that drafted the constitutional language allowed Congress "to legislate in all Cases for the general Interests of the Union." (12) The phrase "for the common Defence and general Welfare of the United States," accordingly, empowers the federal government power to provide for common or general interests necessary to the union. There is no necessary agreement on what is appropriately "common" or "general" interest, but once it is decided that an activity advances the common defense or general welfare, Congress may undertake it. Under this reading, the Constitution expresses a principle that governs the federal sphere and not just a list of petty powers.

   Finding a general power to provide for the common defense and general welfare is consistent with our constitutional practices. We have never maintained the enumerated powers doctrine consistently. Whenever the polity has decided that an unenumerated federal activity falls appropriately within the national sphere, interpreters of the Constitution have concluded that the activity is allowed by implication. Sometimes terms are stretched to allow the good national activity, and sometimes the activity is allowed without any connection to the constitutional text.

   From the start, the Framers found unenumerated federal powers. While the Framers often told the ratifiers that the enumeration was exhaustive, they also announced that the division between state and federal sphere would be set in the future by political competition. They also said that the federal passport system was to be allowed, although it was not on the list. The Framers asserted both sides of the inconsistency; they asserted both that the enumeration was exclusive and and that it was not exclusive.

   The pattern of finding legitimate but unenumerated federal powers continued in the early republic. Thomas Jefferson was plausibly the most important advocate of limiting the federal government to enumerated powers...