1.8 - Constitutional Interpretations of Federalism
Enumerated vs. Implied Powers
- Enumerated (expressed) powers: directly stated in the Constitution, like declaring war, collecting taxes, and raising an army.
- Implied powers: not directly stated, but claimed by Congress.
Necessary and Proper Clause (Elastic Clause): the basis for implied powers, and hugely important. It's the last line of Article 1, Section 8, letting Congress make laws "necessary and proper" for carrying out its other powers. This massively expands Congress's authority, since it can legislate on things not explicitly listed as long as it connects back to an enumerated power.
The Supremacy Clause
Article 6 establishes that the national government is superior to the states when there's a conflict, making the Constitution the supreme law of the land. This was a huge reversal from the Articles of Confederation, where states kept sovereignty.
The text: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land." The key words are "in Pursuance thereof." A federal law only overrides state law if it's constitutional in the first place, so the Supreme Court ends up deciding when federal action goes too far, as in Lopez below.
McCulloch v. Maryland (1819): dealt with both the Necessary and Proper Clause and the Supremacy Clause.
Facts: Congress created the Second Bank of the United States in 1816. Maryland, which didn't want the bank, passed a tax on banks not chartered by the state, which hit the bank's Baltimore branch. James McCulloch, the branch's cashier, refused to pay, and Maryland sued him.
Holding: a unanimous Court (7-0), in an opinion by Chief Justice John Marshall, ruled for the national government on both questions:
- The Court ruled Congress had the implied power to create a national bank, since a bank helped carry out enumerated powers like taxing, borrowing money, regulating commerce, and raising armies.
- The Court ruled states cannot tax the federal government, reasoning that "the power to tax involves the power to destroy." If a state could tax a federal bank, it could tax it out of existence, which would violate the Supremacy Clause.
Reasoning: Marshall read "necessary" to mean useful or appropriate, not absolutely essential: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate... are constitutional." The bank was a reasonable way to carry out Congress's listed powers.
Why it matters: McCulloch expanded national power in two ways. It confirmed implied powers through a broad reading of the Necessary and Proper Clause, and it used the Supremacy Clause to stop states from interfering with legitimate federal action. In an essay, it's the go-to evidence for a strong national government and a loss for states' rights.
The Commerce Clause
Congress can regulate interstate commerce (commerce between people in different states). Commerce within a single state is traditionally left to the states.
- Gibbons v. Ogden (1824): ruled that "commerce" includes navigation and other trade that crosses state lines, and that a federal license beat New York's steamboat monopoly. This gave Congress broad power over interstate commerce and meant states can't regulate it in ways that conflict with federal law.
- After 1937: the Court broadly reinterpreted the clause so Congress could regulate anything affecting interstate commerce.
- Wickard v. Filburn: the Court ruled Congress could regulate a farmer growing wheat just for his own animals, since if every farmer did that, it would affect the national wheat market. This meant the Commerce Clause could justify regulating almost anything.
U.S. v. Lopez (1995): the Court finally found a limit. It struck down the Gun Free School Zones Act, ruling that a student bringing a gun to school didn't substantially affect interstate commerce. This case showed there is a ceiling to the Commerce Clause, even though the broad interpretation still generally holds.
Holding: no. In a 5-4 decision written by Chief Justice William Rehnquist, the Court struck down the law.
Reasoning: Congress can regulate the channels of interstate commerce, the people and things moving in it, and activities that substantially affect it. Carrying a gun near a school isn't economic activity and doesn't substantially affect interstate commerce. If the government's argument won, there would be almost nothing Congress couldn't regulate, and general police power and schools belong to the states.
Why it matters: Lopez was the first time in almost 60 years that the Court limited Congress's Commerce Clause power. It's strong evidence that the Court can protect state power, and it pairs with McCulloch as the opposite outcome.
McCulloch vs. Lopez at a glance:
Case | Clause | Effect on national power |
McCulloch v. Maryland (1819) | Necessary and Proper, Supremacy | Expanded it: Congress has implied powers, and states can't tax or block federal institutions |
United States v. Lopez (1995) | Commerce | Limited it: Congress can't regulate activity that doesn't substantially affect interstate commerce |
The full case briefs (facts, issue, holding, and reasoning) are on the McCulloch v. Maryland and U.S. v. Lopez pages under Required Court Cases.
The 10th and 14th Amendments
- 10th Amendment (states' rights): reserves to the states everything not delegated to the federal government or denied to the states. Frequently cited by states' rights supporters.
- 14th Amendment (federal power): pulls the opposite direction. It limits state power and strengthens the federal government's ability to protect civil rights, through the Due Process and Equal Protection Clauses. Congress has the power to enforce this amendment.
- Through the Due Process Clause, the Court has applied most of the Bill of Rights to the states (selective incorporation, see 3.7). Engel v. Vitale (1962) banned school-sponsored prayer in public schools, Gideon v. Wainwright (1963) required states to give lawyers to poor defendants charged with felonies, Wisconsin v. Yoder (1972) protected Amish families from a state law forcing their children to attend school past eighth grade, and McDonald v. Chicago (2010) applied the right to keep and bear arms to the states.
- Through the Equal Protection Clause, Brown v. Board of Education (1954) ruled that state-run school segregation is unconstitutional.
- The Court's reading decides how far these protections reach. In Plessy v. Ferguson (1896), the Court read equal protection narrowly and allowed "separate but equal" segregation. It took until Brown in 1954 to reverse that, using the same amendment.
Big picture
The Necessary and Proper Clause, the Supremacy Clause, and the Commerce Clause have massively expanded federal power beyond what's explicitly listed in the Constitution. McCulloch v. Maryland confirmed implied powers and federal supremacy, while Wickard v. Filburn showed just how far the Commerce Clause could stretch. Still, the 10th Amendment reserves power to the states, while the 14th Amendment expands federal power specifically to protect individual rights, keeping a constant tension between state and federal authority.