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Elastic clause

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Description: Last clause of Article I, section 8, of the U.S. Constitution, authorizing Congress to make all laws necessary and proper for exercising its enumerated powers and any other power granted by the Constitution to the national government.


Significance: After an 1819 Supreme Court decision, the elastic clause provided the basis for the doctrine of implied powers, stretching the powers of the national government beyond those specifically granted by the Constitution.


In 1791, when advising President George Washington on the constitutionality of establishing a national bank, Thomas Jefferson and others opposed to a strong national government maintained that Congress was limited to exercising those powers expressly granted by the Constitution, for example, the power to coin money. All other powers were reserved for the states. Jefferson argued that the necessary and proper clause imposed additional limits on the powers of Congress. The clause limited any use of powers not expressly granted by the Constitution except when such powers were absolutely necessary or indispensable to the exercise of an enumerated power. A national bank, for example, was unconstitutional both because the Constitution did not expressly delegate the power to create corporations to Congress and because a bank was not an indispensable means for achieving Congress's legitimate ends. A broader interpretation of the clause, Jefferson argued, would effectively create a national government with unlimited power. Alexander Hamilton and others opposed Jefferson's strict construction of the clause, maintaining that the Constitution established an independent national government that, although exercising limited powers, was fully sovereign within the scope of its powers. Hamilton argued that the elastic clause had to be broadly interpreted as granting whatever additional powers would assist Congress in carrying out its enumerated powers. The clause allowed Congress to do not just what was indispensable but also whatever was convenient or helpful to achieving its ends. The incorporation of a bank, for example, was constitutional because it was a useful means for Congress to carry out its delegated power to collect taxes. When the controversy over the incorporation of the Second Bank of the United States reached the Supreme Court in McCulloch v. Maryland (1819), Chief Justice John Marshall transformed Hamilton's loose construction of the clause into constitutional law. In his opinion, he stated that if the ends were legitimate and within the scope of the Constitution, all means that were appropriate and not prohibited, as well as consistent with “the letter and spirit” of the Constitution, were constitutional. His decision meant that the Constitution did not limit the federal government's powers to those expressly delegated, but included powers implied by Congress's freedom to choose the means by which it would carry out its responsibilities.



Further Reading

  • Fisher, Louis. The Politics of Shared Power: Congress and the Executive. College Station: Texas A&M University Press, 1998.
  • Fried, Charles. Saying What the Law Is: The Constitution in the Supreme Court. Cambridge, Mass.: Harvard University Press, 2004.
  • Gunther, Gerald. John Marshall's Defense of “McCulloch v. Maryland.” Stanford, Calif.: Stanford University Press, 1969.
  • Jowell, Jeffrey, and Dawn Oliver, eds. The Changing Constitution. 5th ed. New York: Oxford University Press, 2004.
  • Willoughby, Westel Woodbury. The Supreme Court of the United States: Its History and Influence in Our Constitutional System. Union, N.J.: Lawbook Exchange, 2001.