Читать книгу American Democracy in Context - Joseph A. Pika - Страница 101

When states entered into the Constitution, they specifically delegated certain powers to the new national government. Chief among these are those given to Congress. Article I, Section 8 of the Constitution includes a laundry list of specific congressional powers known as the enumerated powers (see Chapter 2 and Table 3.1).

Table 3.1

In addition to these enumerated powers, the last clause of Article I, Section 8, known as the necessary and proper clause, gives Congress 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 powers exercised by Congress under this clause are called implied powers, since (unlike the enumerated powers) they are not listed specifically in the Constitution. The necessary and proper clause is sometimes also referred to as the elastic clause because it allows the powers of Congress to expand like an elastic band. Just how elastic this clause should be has long been the subject of intense debate.

Starting with the Thirteenth Amendment, which abolished slavery, several constitutional amendments have included an enabling clause, which gives Congress the power to enforce the provisions of the amendment through appropriate legislation. Enabling clauses, therefore, allow Congress’s power to expand. As with implied powers, however, determining what legislation is “appropriate” (and, thus, how much Congress’s power can expand) has been the focus of debate.

Article VI of the Constitution contains the so-called supremacy clause. This clause states that the U.S. Constitution, all “Laws of the United States which shall be made in Pursuance thereof” (in other words, laws constitutionally enacted under Congress’s enumerated or implied powers, or as a result of power derived from enabling clauses), and “all Treaties made … under the authority of the United States” are “the supreme Law of the Land.” This means that states must obey each of these and that “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” At first glance, this seems very clear-cut: Anytime a state law or a provision of a state constitution conflicts with national power in the form of the U.S. Constitution, an act of Congress, or a treaty, it must give way to “the supreme Law of the Land.” Yet, the ongoing debate about how much power Congress can legitimately derive from either the necessary and proper clause or the enabling clauses raises persistent contention: Precisely which laws are made in pursuance of the Constitution and are thus legitimately “supreme”?

necessary and proper (elastic) clause The last clause of Article I, Section 8 of the Constitution, which authorizes Congress to make “all laws which shall be necessary and proper” for executing the Constitution’s enumerated powers; sometimes called the elastic clause because it allows congressional powers to expand.

supremacy clause Article VI, Clause 2 of the Constitution specifying that federal laws and treaties passed pursuant to the Constitution trump contradictory state laws dealing with the same topic.

Tenth Amendment The amendment to the Constitution that says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

reserved powers The powers not delegated to the national government by the Constitution that are retained by states under the Tenth Amendment.

police powers The powers reserved to the states under the Tenth Amendment dealing with health, safety, public welfare, and morality.