Fundamentals: Part 1d -  Implied Powers
Article I, Section 8, Clause 18 of the Constitution gives Congress the power…” to make all Laws which shall
be necessary and proper for carrying into execution the foregoing Powers”.
 This clause is usually referred
to as the “elastic clause” and is the source of the doctrine of “implied powers”.  It has been a cause of
controversy from the very founding of the republic.

An implied power is one that is not specifically granted by the Constitution, but is implied by those that are.  
For example, the Constitution does not explicitly grant the power to develop and purchase aircraft, nuclear
weapons, etc. for the Armed Forces.  That power is “implied” in the power to declare war, maintain an Army
and Navy and equip the militias, found in clauses eleven thru sixteen.

The point of contention in this case is over the meaning of the word “necessary”.  Alexander Hamilton
interpreted the meaning as authorizing any law that would facilitate the execution of an enumerated power.  
Thomas Jefferson, on the other hand, argued that it meant only those laws that the enumerated power
could not be executed without.  Legislatures have, throughout our history, taken the more liberal meaning in
order to pass any law that they could somehow relate to an enumerated power, even if only tangentially.

The liberal interpretation of the phrase is a slippery slope indeed.  As Jefferson observed,
“If such a latitude
of construction be allowed to this phrase, as to give any non-enumerated power, it will go to every one; for
there is no one which ingenuity may not torture into a convenience, in some way or other, to some one of so
long a list of enumerated powers.”

There is hardly any law or subject that cannot somehow be related to one or more of the enumerated
powers.  The most common one is the “commerce clause” which we will discuss as our next topic.  Our
federal highway system is sometimes justified by clause seven giving Congress the power to establish post
offices and post roads.  President Eisenhower justified the building of our interstate highway system on the
need to move troops and weapons around the county quickly in case of invasion by a foreign power.

By the clever manipulation of the implied powers doctrine and the illegitimate use of the “intent phrase”,
“to
provide for the common defense and general welfare of the United States”
, our Constitution has all but
been made useless as a means for limiting the size and scope of government.  As usual, those who
misconstrue the meaning of words in the Constitution ignore the context in which they are used.  In this
case, the word “proper” adds an additional nuance to the word “necessary”.  The thesaurus suggests the
word “appropriate” as a synonym for “proper“.

A liberal interpretation of the word “necessary” as meaning laws that are merely convenient or that only
facilitate the execution of an enumerated power is neither proper nor appropriate to the purpose of section
eight or a republican government’s use of a constitution, which is to limit government powers. The intent of
section eight by the Framers is given further weight by the
Tenth Amendment. If we accept the popular
liberal interpretation, there is no limit to the powers granted to Congress, as Jefferson pointed out.  From a
practical point of view, in today’s political climate, it is important that we insist on the more restricted view
expressed by Jefferson, from our elected officials.
Liberal Myth No. 4:  The so-called "elastic clause" in Article I, Section 8, Clause 18, empowers
Congress to pass any law they consider to be necessary and proper.
Next
The Commerce Clause
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