At the time of Chief Justice John Marshall's decision in McCulloch v. Maryland, the country was not sure how much power the federal government should have. Many people believed it should have only the powers specifically listed in the Constitution. These people came to be known as "strict constructionists." Others believed the Constitution could be interpreted to give the federal government powers not specifically listed there. These people came to be known as "loose constructionists."
This debate is still not settled today. Over time, the relationship between the people, the states, and the federal government has evolved. Often the loose-constructionist view of the Constitution has prevailed, resulting in the federal government assuming many powers that would probably be surprising even to the loose constructionists of 1819.
In this activity, you will examine three brief excerpts from documents relating to the evolution of the balance of power between the individual states and the federal government. The first excerpt is Article II of the Articles of Confederation, which went into effect in 1781. This document was the first attempt by the new nation at establishing a national government and the rules for which parts and levels of the government would have which powers. The Articles of Confederation proved to be a failure and were replaced by the U.S. Constitution, which took effect in 1789. The second excerpt you will examine is the Tenth Amendment to the Constitution. The third excerpt is a passage from Article I, Section 8 of the Constitution, known as the "Necessary and Proper" clause.
Articles of Confederation, Article II
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
Questions to Consider
- This excerpt is from the Articles of Confederation, which were in effect from 1781 to 1789. According to this Article, if there were any powers not explicitly given to the national government, who had these powers?
- Think about the powers of the national government today. What are some of the responsibilities of the national government? What do some of the federal (national) agencies do? Then think about what the national government would not be allowed to do today if the Articles of Confederation were still in effect. What changes in technology and society have happened that the framers of the Articles of Confederation may not have imagined?
United States Constitution, Amendment X
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.
Questions to Consider
- Compare the text of Amendment X to the text of Article II of the Articles of Confederation. Both documents refer to the delegation of powers to the national government; in the first document, there is one word before the word "delegated" which is missing in Amendment X. What is that word, and how does its omission in Amendment X make its meaning different from Article II?
- The Articles of Confederation were a failure and were abandoned largely because they established a central government that was too weak. Why do you think the people who drafted this Amendment, which was adopted as part of the Bill of Rights, omitted the word referred to in Question 1?
United States Constitution, Article I, Section 8: Powers Granted to Congress
The Congress shall have power To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; ...
[and other powers as well. See Article I, Section 8 of the Constitution for a complete listing.]
... 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.
Questions to Consider
- Review this section of the Constitution, which lists the powers granted to Congress. Then, review the power that has come to be known as the "necessary and proper" clause, or the "elastic clause." How could this clause, together with the Tenth Amendment, be interpreted to permit the federal government to create a national bank?
- In your opinion, taken together, do the Necessary and Proper Clause and the Tenth Amendment give too much power to the federal government? Explain your answer.