Mass 2

Mass & Federal System Essay, Research Paper

Article I, Section 8, Clauses 1 – 18 are considered by many the important clauses of the US Constitition with clause 18 being the most important. IT is within these clauses where the definition of expressed and implied powers is spelled out. Clauses 1 – 17 deal with the expressed powers and clause 18 deals with implied powers. Expressed powers are powers which are spelled out in the constitution, and implied powers are those powers which are just hinted at or suggested.

Clause 18 of the constitution is known as the “elastic clause”, or the “necessary and proper clause”. Due to the fact that the government has obtained more power from this clause than any other clause in the constitution. Clause 18 or the “elastic clause seems to be able to be stretched to fit anything the government wishes. It is out of this clause the government derived the “Doctrine of Implied Power”. This is where the government has expressed powers from clauses 1 – 17 and implied powers from clause 18 which are exercised over the expressed powers. For example, the words collect and commerce, the government has had the power to interpret these words as they see fit.

Persons who believe in the letter of the law as it pertains to the constitution are called strict constructionists, whereas persons who believe in the spirit of a law are called loose constructionists. Thomas Jefferson believed in strict constructionism, and Alexander Hamilton believed in loose constructionism. This caused a conflict between Jefferson and Hamilton in relation to the need for the US to have a federal bank. Jefferson said that the constitution did not give any provision for the US to have a bank because it was not spelled out in the constitution. But Hamilton using the premise of implied powers said it did because it gave them the power to lay and collect taxes, borrow money, and regulate commerce. And in order to perform those expressed powers they needed an agent to perform them. The conflict about whether clause 18 gave the government implied powers went on for years. In 1819 a supreme court decision in the case M Culloch v. Maryland decided that Article I, Section 8, Clause 18 did indeed give the government “implied power”. In this case Maryland tried to impose a tax on notes issued from the Baltimore branch of the Bank of the United States. The bank refused to pay it, and the Supreme Court decided that clause 18 gave Congress the means to carry out it s expressly granted powers, and the bank was “necessary and proper” to tax the funds which were to be used to support armies. The decision basically stated that all means which are appropriate and are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. Which basically meant Maryland could not tax the bank, because the government was carying it s expressed powers of the constitution.

There were many more instances where “strict v. “loose” came into play. One major instance is concerning Social and Human Services. In clause I, there is the words “general welfare”. Many loose constructionists believed this to mean the government should impose taxes to support public welfare. For example, programs such as social security and unemployment. But in 1936 a strict contructionism Supreme Court decision in the case of US v. Butler in regards to the proposed Agricultural Adjustment Act decided that the revenue derived from the taxes of this act could not be used to subsidize farmers. Because it was not supported under the general welfare clause. Therefore was unconstitutional. But in 1937 they changed their minds and made a loose decision during to social security cases, when they were threatened by Franklin Roosevelt. This change was in reference to the social security and unemployment taxes. The court decided that they fit under the provision of “general welfare”. Therefore the taxes from these programs could be used to promote the general welfare. Because in an industrial society when people are laid off or retire without income, the government should provide unemployment and a social security pension. Another instance of strict v. loose was in respect to Amendment I rights. One example was in the separation of church and state. The words “no law” in this case were viewed loosely by the Supreme Court. To the court they meant maybe. In the 1962 decision of Engel v. Vital where the State Board of Regents in NY composed a prayer to be recited at the start of school each day. The court ruled that the government has no business to compose official prayers for any group to recite as part of a religious program carried on by government. In other words there would be NO prayer in public schools. This is an example of a strict decision. Then in 1984 the court made a loose decision concerning a nativity scene in the case of Lynch v. Donnelly where the court decided that it was OK for the city to display a nativity scene as long as the message to be expressed is non-religious, for example just to celebrate Christmas and the spirit of that holiday. Another instance was freedom of expression in regards to obscenity, “what s obscene.”. If strict, the words “no law” would mean nothing could be perceived as obscene. But in 1973 in the Supreme Court case of Miller v. California the court made a loose decision. They ruled that state may make legislation on a work if it:

1. Appeals to