Just how Elastic is the "Elastic Clause"?

[Tiberius Tosi]

So we have all probably heard of the Elastic Clause (Necessary and Proper Clause, by the technical name), which states that:

The Congress shall have 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.

I am just curious as to how this clause is interpreted today in modern politics? I know it was highly used by the Federalists early on to get such things as the Bank of the United States, Lincoln cited it as part of his reasoning for suspendin Habeas Corpus during the Civil War, etc. but how much is this clause (if ever) reffered to in order to pass laws that are obviously technically unconstitutional but still right and just?

Main Question - What is your opinion of the Elastic Clause? Does it leave open too much room for abuse of powers?

[magickyleo101]

So we have all probably heard of the Elastic Clause (Necessary and Proper Clause, by the technical name), which states that:




I am just curious as to how this clause is interpreted today in modern politics? I know it was highly used by the Federalists early on to get such things as the Bank of the United States, Lincoln cited it as part of his reasoning for suspendin Habeas Corpus during the Civil War, etc. but how much is this clause (if ever) reffered to in order to pass laws that are obviously technically unconstitutional but still right and just?

Main Question - What is your opinion of the Elastic Clause? Does it leave open too much room for abuse of powers?

The short answer is that it's pretty elastic. I don't think there's really been much of a fight over it since the early republic, though.

My personal view is that it doesn't matter that much. The prevailing view is that it just lets Congress do what it's already empowered to do. But even without a necessary and proper clause all the same things could still probably be done because you would just say that those things were powers implied by the grant of the other powers. You see that with the executive branch. The necessary & proper clause doesn't apply to the executive because it's part of article one, but the president still claims various implied powers (e.g. the power to without some information from the public).

[bushbush]

it certainly has helped to change the federal-state relation in the 20th century to the extent that federal power has expanded into the previous spheres dominated by states. I can think of cases of both good or bad cuz of this. On one hand, greater federal interference helped to take away state resistance during the civil rights movements. On the other hand, there have been a proliferation of unfunded mandates listed by the feds that add to the burden of states simply because of this changing federal-state relation.

overall, it's really the intended consequence by the framers of the constitution. They want this system to be evolving, meeting the needs of time, rather than be a rigid document that will be outdated very soon.

[Sphere]

overall, it's really the intended consequence by the framers of the constitution. They want this system to be evolving, meeting the needs of time, rather than be a rigid document that will be outdated very soon.

I think this is the salient point. The US Constitution has been a success because it is a flexible document in many respects. You need look no further to the preamble to see that the framers where trying to achieve a more general set of goals (common defense, justice, welfare etc.), rather than a rigid ideological framework of government. Really, the elastic clause is as elastic as the electorate will allow.

[magickyleo101]

I think this is the salient point. The US Constitution has been a success because it is a flexible document in many respects. You need look no further to the preamble to see that the framers where trying to achieve a more general set of goals (common defense, justice, welfare etc.), rather than a rigid ideological framework of government. Really, the elastic clause is as elastic as the electorate will allow.

I think if anything the opposite is probably the case - that the constitution is supposed to be inflexible. There are a lot of pieces of evidence for this in the document itself - the document makes it hard to change the constitution; we don't include the small details of government (which need frequent amendment) but only the broad strokes of the government which are meant to endure over time. Finally, the rights and protections that are in the constitution are in the constitution because those are the core rights and protections that we don't want the government to be able to change.

As for the preamble thing - those are the goals which led the framers to bind the nation to the strictures of a text; not a replacement for the strictures themselves.

[bushbush]

I think if anything the opposite is probably the case - that the constitution is supposed to be inflexible. There are a lot of pieces of evidence for this in the document itself - the document makes it hard to change the constitution; we don't include the small details of government (which need frequent amendment) but only the broad strokes of the government which are meant to endure over time. Finally, the rights and protections that are in the constitution are in the constitution because those are the core rights and protections that we don't want the government to be able to change.

i think the flexibility is not intended to be in the area of fundamental rights, which are clearly defined through the bill of rights, due to pressure from many framers. The elasticity is in the area of federal-state relation, where the framers seem to intend that there will be a continuous struggle over the years in competing for powers (resolved through the supreme court) because i guess they realize you can't properly define every division of power and at some point you have to let the future generations decide on their own. In that sense, the constitution is alive and feds and states over the years can figure out their relationship according to the needs of the time. It certainly has been the case in the past 100 years that the relationship has changed vastly in a constitutional frame, without official amendments, but through new court rulings.

[magickyleo101]

i think the flexibility is not intended to be in the area of fundamental rights, which are clearly defined through the bill of rights, due to pressure from many framers. The elasticity is in the area of federal-state relation, where the framers seem to intend that there will be a continuous struggle over the years in competing for powers (resolved through the supreme court) because i guess they realize you can't properly define every division of power and at some point you have to let the future generations decide on their own. In that sense, the constitution is alive and feds and states over the years can figure out their relationship according to the needs of the time. It certainly has been the case in the past 100 years that the relationship has changed vastly in a constitutional frame, without official amendments, but through new court rulings.

I don't know how you would really justify this. Why would you think that the federal/state relation balance would be the part of the constitution that was intended to be flexible (as opposed, say, to some other part of the constitution like the powers of the executive vs. Congress)?

I mean, probably the federal-state power balance was changed more than anything else over the last 100 years by the 16th and 17th amendments, but both of those were explicit amendments to the constitution (not things you can say the framers intended to change naturally).

[bushbush]

I don't know how you would really justify this. Why would you think that the federal/state relation balance would be the part of the constitution that was intended to be flexible (as opposed, say, to some other part of the constitution like the powers of the executive vs. Congress)?

I mean, probably the federal-state power balance was changed more than anything else over the last 100 years by the 16th and 17th amendments, but both of those were explicit amendments to the constitution (not things you can say the framers intended to change naturally).

the most visible two would be elastic clause and commerce clause to help creating this flexibility, at least that's how the supreme court has believed in their decisions.