Over 200 years ago, our forefathers took a GRAND EXPERIMENT in self-government. Brought together to provide amendments to the Articles of Confederation, they instead offered the Constitution.
But how well do you know the Constitution?
The Constitution has as its origin the idea that the people hold all power. Through the constitutions of the several States, the people delegated some of their powers to their state governments. While in the Constitution of the United States, they transferred some of the powers they granted to the individual States, in whole or in part, to the United States and delegated it with some of their own powers.
The powers given to the United States in the Constitution were either exclusive or concurrent (that is shared) with the individual States. Exclusive power for the United States existed in three ways: “where the Constitution in express terms granted exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant. Alexander Hamilton, Federalist Papers #32.”
And to carry out these exclusive and concurrent powers, the United States was given the power “to make 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 any department or officer thereof. Article 1, Section 18, Constitution of the United States.”
Commenting on this provision, Alexander Hamilton wrote in Federalist Paper #33:
“What is power but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power but a power of making laws? What are the means to execute a legislative power but laws? What is the power of laying and collecting taxes, but a legislative power, or a power of making laws to lay and collect taxes? What are the proper means of executing such power but necessary and proper laws?
This simple train of inquiry furnishes us at once with a test of the true nature of the (necessary and proper) clause. It conducts us to this palpable truth that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does this provision do more than declare the same truth, to wit, that the national legislature to whom the power of laying and collecting taxes had been previously given might, in the execution of that power, pass all laws necessary and proper to carry it into effect? The same process will lead to the same result concerning all other powers declared in the Constitution. And it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws.
It might be affirmed with perfect confidence that the intended government’s constitutional operation would be precisely the same if the clause were entirely obliterated as if it were repeated in every article. It is only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers.”
Along with the powers granted to the United States in the Constitution, exceptions (or restrictions) were placed on these powers. Some examples –
1) On the power of Congress to lay and collect taxes, duties, imposts, and excises, we have some of the following exceptions:
a) No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken,
b) No tax or duty shall be laid on articles exported from any State, and,
c) No vessel bound to, or from, one State shall be obligated to pay duties in another.
2) For the power of Congress to regulate commerce among the several States, we have this restriction: “Any regulation of commerce shall give no preference to the ports of one State over those of another.”
3) Regarding the power of Congress to constitute tribunals inferior to the Supreme Court, there is this exception:
“The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public Safety may require it.”
4) And the power of Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, there is this restriction:
“No Bill of attainder or ex post facto law shall be passed.” ¹
Originally, the Constitution had no bill of rights. The reason for this, according to our forefathers, “was that the new government was one of the specific and enumerated powers and possessed no authority except in those spheres where it had received a grant of power… Since the powers of Congress were limited by enumeration, it would be absurd to attach an additional section to the Constitution specifying what Congress could not do.
The American Constitution: Its Origins And Development, 5th Edition, by Alfred H. Kelly and Winfred A. Harbison, 1976, page 143.” However, due to a general misunderstanding about the Constitution at the time of its ratification, a bill of rights was added to the Constitution to obtain the Constitution’s ratification.
So – how well do you know the Constitution now?
¹ See State of South Carolina v. the United States, 199 U.S. 437, 450-451  get case
© 1993 Daniel Joseph Goodman