Article 1.8.5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of
    Weights and Measures;

    Article 1.8.6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United
    States;

    Article 1.8.7: To establish Post Offices and post Roads;

Clause Seven does not place Congress in the construction business, building roads and post offices.  Early post
offices in sparsely populated areas were often located in privately owned businesses, usually the general store
or local tavern.  Establishing post roads usually meant nothing more that the designation of existing roads as
“post roads”.  Such a designation gave the postal service the right-of-way in the use of those roads for
transporting mail. Authorization to purchase or build post office buildings is found in the “other needful buildings”
clause in number seventeen.

    Article 1.8.8: To promote the Progress of Science and useful Arts, by securing for limited Times to
    Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

This clause, also in the general welfare category, limits federal government involvement in science and the arts
to the issuing of copyrights and patents.  The use of tax money for projects like NPR and the National
Endowment for the Arts, are not constitutional expenditures. The same is true for R & D spending in non-defense
related projects.

    Article 1.8.9: To constitute Tribunals inferior to the Supreme Court;

    Article 1.9.10: To define and punish Piracies and Felonies committed on the high Seas, and Offences
    against the Law of Nations;

    Article 1.8.11: To declare War, grant Letters of Marque and Reprisal, and make Rules concern-ing
    Captures on Land and Water;

The granting of Letters of Marque and Reprisal refers to the custom, short of a declaration of war, of authorizing
an agent of the issuing government to search, seize, or destroy assets or personnel of a foreign nation in
retaliation for a violation of the “laws of nations”.

The use of Letters of Marque was ended by the Treaty of Paris in 1856, Reprisals against battlefield casualties,
shipwreck survivors, prisoners of war and civilians, as well as certain buildings and property is now forbidden by
the Geneva Convent-ions.

There is no language requirement for a declaration of war in the Constitution or statutes. In the war against Iraq,
the declaration was given by Congress in a resolution authorizing the President, as Commander In Chief to use
“all necessary force.”

Clause eleven also grants to Congress the power to make rules governing the capture and treatment of
prisoners of war.

    Article 1.8.12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a
    longer Term than two Years;

    Article 1.8.13: To provide and maintain a Navy;

    Article 1.8.14: To make Rules for the Government and Regulation of the land and naval Forces;

    Article 1.8.15: To provide for calling forth the Militia to execute the Laws of the Union, suppress
    Insurrections and repel Invasions;

    Article 1.8.16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part
    of them as may be employed in the Service of the United States, reserving to the States respectively, the
    Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed
    by Congress;

Clauses ten through sixteen all fall under the general category of “providing for the common defense” in Clause
One.  For the most part, they have not been a source of controversy, except for clause eleven giving Congress
the power to declare war.  There, the primary source of controversy is that there is no “mystical script” given by
which Congress is expected to wield the power.

    Article 1.8.17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding
    ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the
    Seat of the Government of the United States, and to exercise like Authority over all Places purchased by
    the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts,
    Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

Clause seventeen establishes a separate district (now District of Columbia) to serve as the seat of government
and gives the exclusive legislative powers over it to Congress.  By not establishing the seat of government within
the territory of an existing state or providing it with an independent legislature the Founders recognized the
advantages inhabitants and officials of the National Capital would have over those of the states. The act of
granting voting membership to the District of Columbia in either the House of Representatives or the Senate
would clearly be a violation of the intent of this clause.

Another important limitation imposed by this clause is on the purchase of land within the sovereign territory of
individual states. Under this clause the federal government is empowered only to purchase land for the erection
of “needful buildings” necessary for conducting the activities authorized in the enumerated powers. All such
purchases require the approval of the legislature of the state involved.

The fact that most lands “owned” by the federal government are located in Western States that achieved
statehood during the progressive era is no coincidence. Public lands within the legal borders of a sovereign state
or nation are, by the laws of nature and of nations, owned by that state or nation; otherwise they have no claim to
“sovereignty”. The designation of private or state lands as National Parks, nature preserves, wet lands, and
wilderness areas do not fall into this category, therefore are not among the powers granted by the Constitution.
When the federal government claims for itself sovereignty over any land or natural resource within the sovereign
territory of an existing state, that claim is unconstitutional.

    Article 1.8.18: To make all Laws which shall be necessary and proper for carrying into Execut-ion 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.

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 execut-ion 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.
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 country 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 law is proper if it meets two criteria; is it necessary in order to carry out the enumerated power under which the
law is proposed? And, does it meet the goal or purpose for which the Constitution was established, as defined in
the Preamble? Does it contribute to a more perfect union, provide for public tranquility, establish justice, secure
the blessings of liberty, etc.? If it satisfies these two conditions it is proper. If it does not, it is not proper, no
matter how important it may seem to the proposed law or the underlying power.

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 is
given further weight by the Tenth Amendment. If we accept the popular progressive 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.

The phrase “other powers vested by this Constitution” refers to those given to the Executive and Judicial
Branches and to the internal powers given to Congress to select additional officers, determine procedural rules,
etc. and to the few powers given over state actions, such as determining election dates, and determining how
state laws or state regulated privileges will be honored by other states, such as drivers licenses, marriages, etc.
None of these affects the quality of life for citizens. What is conspicuously missing from this list of Congressional
powers are references to education, energy, natural resources, health care, and the multitude of other subjects
over which the federal government has assumed control within the past century.
E-mail address
jfm@illinoisconservative.com
Philosophy of
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Socialism in America

"The struggle of History is not
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proletariat; it is between government
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Jerry McDaniel
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Philosophy of Evil
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