What Does the Elastic Clause Provide?

Also known as the necessary and proper clause, the elastic clause is one of the most important and most debated clauses in the United States Constitution. This debate is due in part to the history of the clause, all the way from its inception to the ways in which it is currently used in the government.

The Articles of Confederation, the precursor to the current U.S. Constitution, allows states to operate such that they may independently govern themselves. The Articles of Confederation also outlines that states are protected from any overreach or abuse from the powers of Congress.

Plainly put, the Articles of Confederation permitted the Continental Congress only the powers that were expressly delegated. When the elastic clause was introduced, it was met with a great deal of backlash because it gave Congress powers that were not in the original document. When the constitution was still being ratified, antifederalists, who supported decentralized government and states’ rights, voiced concerns that the elastic clause would give Congress too much power. The other side of the argument, voiced by the federalists, emphasized the concern that Congress would need the elastic clause to wield the power it already had outlined within the Constitution.

Despite the elastic clause being part of the ratified Constitution, parties have continued to argue over exact interpretations of the clause. These arguments continued for decades before the clause was first used. This transpired in 1791, when Alexander Hamilton defended the creation of the first bank of the United States with the elastic clause.

During the formation of the bank of the United States, James Madison argued that the ability to charter a bank was not part of Congress’ constitutional authority. However, Hamilton put forth the argument that a bank was the most reasonable way to support citizens when they needed to borrow funds or for the purpose of taxation. In the end, it was decided that these activities were related to constitutional powers, and the bank was formed.

The reason that the elastic clause is also known as the "necessary and proper clause" is because of the ability that it gives Congress to do whatever it deems to be necessary and proper to do its job. Because the Constitution does not define “necessary and proper,” the elastic clause can be used to grant Congress powers that are not outlined in the Constitution.

The exact wording of the elastic clause is found in Article I, Section 8, Clause 18 of the U.S. Constitution:
​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.​

The wording makes clear the clause’s meaning, since it gives Congress the ability to stretch its legislative power into sectors that are not specifically suggested. ​Foregoing Powers and all other Powers​ means that Congress can work alone without the partnership of other governing bodies. For this reason, the elastic clause is also sometimes called the basket clause, the coefficient clause, or the sweeping clause.

The elastic clause could be considered a way to legally handle issues that the founding fathers might not have considered when creating the Constitution. For example, in McCulloch v. Maryland, Congress chartered the second bank of the United States in 1816. In 1818, Maryland passed legislation allowing them to tax the bank, but James W. McCulloch, a cashier at the Baltimore branch, refused to pay it.

The case was brought before the Supreme Court, which unanimously voted that Congress did have the power to establish a bank. It also established that Maryland did not have the power to tax the bank. Chief Justice John Marshall’s decision hinged on the belief that Congress can use unenumerated powers not defined in the Constitution. Due to Justice Marshall’s ruling, it is now common knowledge that states do have the power to tax within their borders, but they do not have the power to tax the federal government.

Enumerated, or listed and numbered, powers are the numbered powers the Constitution gives Congress. Because of the broad range of interpretations of the Constitution, there is still some debate on how many powers Congress has. While Article I, Section 8 contains a list of enumerated powers, there are anywhere from 30 to 35 enumerated powers. These include not only Article I, Section 8, but other articles and amendments to the Constitution.

Thus, unenumerated powers has been recognized as an acceptable use of Congressional power, provided it can be called necessary and proper. For instance, one of the most recent uses of the elastic clause was during the universal healthcare debate. Congress determined that it was both necessary and proper to pass the healthcare resolution, as the well-being of the public was at stake.

Freedoms and rights were established by the first Congress of the United States. These first 12 amendments are known as the Bill of Rights, and were designed to protect the basic rights of U.S. citizens. The Bill of Rights guarantees: ​the freedom of speech, press, assembly, and exercise of religion; the right to fair legal procedure and to bear arms; and that powers not delegated to the federal government were reserved for the states and the people.​

It is important to note that the original definition of a citizen did not include people of color, women or immigrants from certain countries. The Bill of Rights was heavily influenced by the English Bill of Rights of 1689 and was drafted by George Mason in 1776. Originally, the Bill of Rights was designed to protect individual citizens from overreach by the U.S. government. Thus, the Bill of Rights does not pertain to individual actions and only protects a citizen from persecution from the government itself.

The Ninth Amendment to the U.S. Constitution, specifically states that ​the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.​ There is some dispute among Constitutional scholars regarding the meaning and reach of the Ninth Amendment. The dispute hinges on how, exactly, the amendment is to be read.

When the Ninth Amendment was introduced, it was meant to answer the anti-federalists' complaint that there was no bill of rights included with the Constitution. The federalist response to this concern was that a bill of rights could also be read as an exhaustive list of the rights of citizens. Under this assumption, citizens would surrender all other rights aside from the ones listed in a bill.

Others argued, however, that it was impossible to enumerate all the rights afforded to citizens of the United States. In the end, the Ninth Amendment was included. It continues to be relevant to major legal cases in the present today. Currently, it is understood that not all of the rights afforded to U.S. citizens are listed in the Bill of Rights.