If it Retains “Implied” Powers, Is the Constitution Still Safe Enough to Restore Limited Government?
Watch If it Retains “Implied” Powers, Is the Constitution Still Safe Enough to Restore Limited Government?
I appeared on Freedom Hub once again the other day with Charles Frohman & Jim Grapek. Above, you can find that episode and watch it on their Freedom Hub Rumble page. Below, I’ve included my prepared remarks from that appearance.
I want to thank Jim and Charles for inviting me back on. Despite some technical issues, like my dysfunctional slideshow presentation (which was 100% my fuck up. Not theirs.) I still had a great time talking with them and their livestream audience.
Editor’s Notes:
Correction: The article below is mostly the same as my presentation. I’ve made a number of minor changes and re-wrote the final section.
In my “Follow and Support” section at the end I have included links to follow and Support Jim and Charles and their Freedom Hub Working Group.
Government originally founded upon consent, and compact, may by gradual usurpations on the part of the public functionaries…become a government of force. In this case, the people are as completely enslaved as if the original foundations of the government had been laid by conquest.[1]
~Saint George Tucker (1803)
Perhaps no case better illustrates the wisdom and foresight of Saint George Tucker than Gonzalez v Raich.[2]
After passage of California’s Compassionate Use Act, that authorized limited marijuana use for medicinal purposes, two California residents, Angel Raich and Diane Monson both used doctor-recommended marijuana for serious medical conditions.
After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson’s cannabis plants, respondents brought an action seeking injunctive and declaratory relief, prohibiting the enforcement of the federal Controlled Substances Act to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use.
However, the Supreme Court held that marijuana grown and used by an individual for medicinal purposes is a regulable activity under Congress’s power to regulate interstate commerce. This, in spite of the fact the marijuana never traveled between states and never entered into any form of commerce, as it was never bought, sold, bartered or exchanged.
To understand this decision you need to understand the role "Implied Powers" plays in our law. This means having an original understanding of the meaning of the Necessary and Proper Clause.
The Congress shall have Power 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.
~Article I, § 8, Clause 18
At the Constitutional Convention, the Committee of Detail took the Convention’s resolutions on national legislative authority and particularized them into a series of enumerated congressional powers. This formalized the principle of enumerated powers, under which federal law can govern only as to matters within the terms of some power-granting clause of the Constitution. By including the Necessary and Proper Clause at the conclusion of Article I, Section 8, the Framers set the criteria for laws that, even if they are not within the terms of other grants, serve to make other federal powers effective.
Although modern scholars often express bafflement at the Necessary and Proper Clause, the meaning and purpose of the clause would actually have been clear to an eighteenth-century citizen. This is because most constitutional scholars simply never stopped to ask a very simple question. What is the Constitution… The answer is that it’s a legal document, but not just any legal document, it is an eighteenth century legal document. And in fact it is a very specific kind of legal document known as a fiduciary instrument.
Fiduciary means an agent, trustee, partner, corporate officer or director, or other representative owing a fiduciary duty with respect to an instrument.[3]
Instrument is a legal term of art that is used for any formally executed written document that can be formally attributed to its author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or right, and therefore evidences that act, process, or agreement.
And We the People are the principal and/or beneficiary to whom the duty is owed.
The enumeration of congressional powers in Article I, Section 8 is similar to the enumeration of powers that one would find in an eighteenth-century private agency instrument or corporate charter. That is not surprising, as the Founders viewed the Constitution as, in the words of James Iredell, “a great power of attorney,” in which the principals grant power to official agents.
Eighteenth-century agency law understood that grants of power to agents generally carried implied powers in their wake: the enumerated, or principal, granted powers were presumptively accompanied by implied, or incidental, powers that were needed to effectuate the principal powers.
As William Blackstone wrote
[A] subject’s grant shall be construed to include many things, besides what are expressed, if necessary for the operation of the grant.[4]
Agency instruments accordingly often referred to “necessary,” “proper,” or (most restrictively) “necessary and proper” incidental powers of agents.
The Constitution’s Committee of Detail composed of lawyers would have written, and a public accustomed to serving as or employing agents in a wide range of everyday affairs would have recognized, the Necessary and Proper Clause as a provision clarifying the scope of incidental powers as those accompanying the grants of enumerated (or principal) congressional powers.
So understood, the Framers crafted the Necessary and Proper Clause to serve three great purposes:
The first was to facilitate organization of the government, such as empowering Congress to organize the judicial department and to create executive offices.
The second was to help effectuate the other enumerated powers of Congress.
The third, and most general, was to define the limits of these implied or incidental powers.
I want to pause on that third point for a moment because this is absolutely vital. Not only does the Necessary and Proper clause NOT grant any additional powers, its inclusion is properly seen as a limitation on power. This is because, had the Constitution been silent about implied powers the ordinary background powers of agency law would have mandated inferring some measures of such powers to effectuate the enumerated powers but would have left uncertainty about how broadly or narrowly to construe the implied powers.
So by adding this clause and selecting a relatively restrictive phrase—“necessary and proper” (In the conjunctive) to describe the range of implied congressional powers, the Constitution eliminated that uncertainty by limiting implied powers to those that bear an especially close relationship to the principal powers.
Accordingly, every law enacted under the Necessary and Proper Clause must meet four requirements:
It must be incidental to a principal power;
It must be “for carrying into Execution” a principal power;
It must be “necessary” for that purpose; and
It must be “proper” for that purpose.
And, because the clause provides that all such laws “shall be” necessary and proper for executing federal powers, rather than prescribing that such laws “shall be deemed by Congress” to be necessary and proper, these inquiries are all objective, contrary to a common suggestion of implied powers unreviewable congressional dictates.
So many of the issues we have with implied powers doesn’t come from what is objectively overbroad language. It’s that both the liberal living constitution scholars and even the vast majority of conservative originalist scholars are looking for meaning in the wrong place. Why the liberals are wrong is obvious, but why even conservative originalists, with very few exceptions get it so wrong is they look to the intent of the framers, which would imply focusing on the grand visions of government and its functions such as those that are laid out in sources such as The Federalist Papers.
Many originalists tend to identify these as the proper place to find a historical origin of a legal document. But they should have looked to the understanding of the people who gave this document legal force. There you find a wide recognition that this document should be read like a private agency instrument, or a power of attorney.
Any attorney and even most law school students today would tell you without hesitation that to understand the meaning of a legal document, like a contract or charter, you look to the understanding of the parties that gave it legal force. As the constitution is legal document, the parties who gave it legal force are not necessarily the early politicians, but the people of the several states who debated its meaning and ratified the document based on that common understanding state ratification conventions. In the records of those ratification debates is a wide recognition it is an agency instrument or a power of attorney.
Today I want to focus on a couple key examples from history that demonstrate how it is that a concept that could have been easily constrained by a faithful application of its original meaning could come to be the foundation for much of the modern federal government.
First in the earliest days off the Republic President Washington determined that Congress had the implied power to create the first Bank of the United States over the objection of James Madison and Thomas Jefferson among others.
Following the ratification of our Constitution, our young Republic faced serious financial problems. Alexander Hamilton, Secretary of the Treasury proposed a solution to address these problems: the federal government should charter a national bank. This institution would establish credit, accept deposits and lend money to the new national government.
He ran into the first of many problem with his proposal. The very first clause of the Constitution (commonly known as the Legislative Vesting Clause) states:
All legislative powers herein granted shall be vested in a Congress of the United States[5]
In other words, if a legislative power is not enumerated somewhere in the Constitution, the Congress does not have that power.
Most of Congress’ enumerated powers can be found in Article 1 § 8, which lists 17 separate powers. The power to incorporate a bank cannot be found in the first 16 powers of Section 8
Hamilton’s proposal does not require the collection of direct taxes, so that power is out. Nor does the bill borrow money or regulate commerce, so those too are out. As are every other enumerated power.
One might think that at this point Hamilton would have admitted that his ambitions were simply beyond the federal government’s powers. Instead a new and unrecognized definition of the Necessary and Proper Clause that he made appear Deus Ex Machina to pivot and put focus on a vision of Implied Congressional Powers.
Whereas James Madison recognized implied powers to be understood in the legal language of agency instruments. He argued that the power to incorporate a bank was not incidental to any of the enumerated powers. Therefore the power to charter the bank was a “great and important power” that needed to be enumerated in the text of Article I.
But Hamilton rejected any test of constitutionality that rested on the degree in which its measure is necessary. He did not go so far as to say that Congress had the discretion to adopt any means that in its sole judgement would be convenient. Instead Hamilton offers the following test:
The relation between the measure and the end; between the nature of the means employed toward the execution of a power, and the object of that power must be the criterion of Constitutionality.[19]
~Alexander Hamilton
This one sentence is one of the most consequential statements in the entirety of constitutional law. It created the modern test that every lawyer, legal scholar and judge use to determine constitutionality. We call this concept means-ends scrutiny.
Ultimately, because the decision was a close one, Washington believed he should defer to Congress; and so, in 1791 Washington signed the bill into law chartering the first bank of the United States. It would remain in business for two decades.
The Second Bank of the United States
In 1816 Congress chartered a second bank of the United States.
That the bill was signed into law by President James Madison has given rise to the question of whether he had changed his mind about the meaning of the “Necessary & Proper Clause” from what he articulated as a Congressman. In private correspondence Madison defended the consistency of the approach by contending it was proper of him to defer to the judgement of several Congresses on the question of whether the bank was truly necessary to execute its powers. But the bank soon became very unpopular.
The debate two decades earlier between Jefferson & Madison on one side and Hamilton on the other would now be resolved by the Supreme Court in McCulloch v Maryland.[6]
In McCulloch, it’s beyond question that John Marshall gave a more expansive reading to the Constitution than previously existed, but I want to focus on a more nuanced view of the importance of his role in this case.
Marshall’s used established law and legal methods—rather than tailor-made theories—for interpreting the Constitution. This is noteworthy in his discussion of whether the national bank was valid under the Constitution’s Necessary and Proper Clause.
In McCulloch, the court had to determine whether chartering the bank was “necessary and proper” to carrying out Congress’s explicit powers. Marshall, like other lawyers of his time, was familiar with the documents by which one person or group granted authority to another—documents such as powers of attorney, wills, trust instruments. The phrase necessary and proper was common in such documents. Marshall recognized its use in the Constitution meant that in addition to the functions explicitly listed, the person or group receiving authority could exercise incidental powers if they were customary or necessary to carrying out the listed functions.
He rejected the Jeffersonian notion that it must be an absolute, physical necessity. Marshall put forward the following test, to determine the scope of Congress’s implied powers:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional[7]
Here again, we see a statement that, especially when taken out of context of the whole of the opinion, does seem to strongly support the creation of modern means-ends scrutiny.
Immediately following this case we begin to see the first examples of people improperly reading the words of John Marshall as advocating unlimited government power. After several Virginia Newspapers declared as much, Marshall wrote two pseudonymous letters To rebut the charge that the Court had read the Necessary and Proper clause authorizing “unlimited power of Congress to adopt any means whatsoever” Marshall highlighted a portion of his opinion that does not always receive attention.
[The Court would have to invalidate a law] “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government”[8]
Commerce In the 20th Century
The commerce clause gives Congress the power to regulate interstate commerce. However, the Supreme court has found that the commerce clause, working in conjunction with the Necessary and Proper Clause allow Congress to regulate certain types of intrastate activity. For example, Congress cannot regulate activity that is not “among” one state and another.
Throughout the twentieth century, the Supreme Court adopted different tests to determine what kinds of intrastate commerce Congress can regulate. During the progressive era, the court used to so-called direct-effects test.
Later in:
The court held that Congress could only regulate that had a direct-effect on interstate commerce.
However, in 1937, the new deal Court replaced the direct-effect test with the new substantial-effects test. In these cases the Court held that Congress could regulate activity that had a substantial effect on interstate commerce.
NLRB v Jones and Laughlin Steel Corp (1937)
In 1935 FDR signed into law the National Labor Relations Act (NLRA) This statute gave the National Labor Relations Board (NLRB) the power to punish “unfair labor practices affecting commerce.”
The Jones and Laughlin Steel Corporation argued that the NLRA was “an attempt to regulate all industry, thus invading the reserved powers of the States over their local concerns.” On this question the court split 5-4. Chief Justice Hughes wrote the majority opinion.
[He acknowledged that the] Federal government could not regulate all labor relations, but only what may be deemed to burden or obstruct commerce.[12]
United States v Darby (1941)
This case unanimously held that Congress is allowed to regulate the wages of local lumber workers. Darby rejected the direct effects test and introduced the substantial effects test. This framework recognized that Congress can do more than simply protect interstate commerce from being burdened or obstructed They could also regulate intrastate activities that’ merely had a substantial effect on interstate commerce. The Court’s analysis, written by Justice Stone relied on the ruling in McCulloch v Maryland (1819)
By citing McCulloch the court indicated the substantial effects test was based on the Necessary and Proper Clause. Darby did not expand the meaning of the word “commerce” in the commerce clause. Rather, under the substantial-effects test, Congress could now regulate local activities -even if those were not commerce- if the law was a “necessary and proper” means to regulate interstate commerce.
Though Darby cited McCulloch, the New Deal Court did not follow Chief Justice Marshall’s reasoning. Justice Stone stated that it did not matter whether Congress was in fact motivated by a desire to regulate local activities.
Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause.[13]
Compare that with the limiting principle in McCulloch v Maryland (1819) Where Chief Justice Marshall maintained that the court had a duty to declare unconstitutional a law “under the pretext of executing it’s powers, to pass laws for the accomplishments of objects not entrusted to the government.”
Wickard v Filburn (1942)
The third case was Wickard v Filburn.[14] The agricultural adjustment act restricted the amount of wheat that farmer Roscoe Filburn could grow to a specified quota The law restricted the supply of wheat farmers could grow as a means to increase prices, thereby, ostensibly, benefiting farmers. According to the record, Filburn used the bulk of the wheat he grew in excess of this quota on his farm to feed his livestock. This way, Filburn could use his own home-grown wheat to feed his livestock at a lower cost, and still benefit by selling his “quota” on the market for the higher price.
Justice Jackson’s majority opinion would sidestep the textual problem presented by the lack of any “interstate commerce” to regulate by adopting an expansion to the substantial effects test. They created a new doctrine that would come to be known as the aggregation principle. According to this doctrine, the production of wheat for personal consumption could have a “substantial effect” on the interstate wheat if many farmers followed Roscoe Filburn’s example. Therefore his actions came within the scope of Congress’s power to regulate interstate commerce
The court acknowledged that Filburn’s small amount of locally consumed wheat did not have a substantial effect on interstate commerce. Yet, when all the locally grown wheat nationwide is considered all-together, in the aggregate, those intrastate activities have a substantial effect on interstate commerce.
[Filburn’s] “own contribution to the demand for wheat may be trivial by itself but it is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”[15]
Gonzalez v Raich
This brings us full circle back to the Raich case. According to the majority opinion of Justice Stevens, Because Angel Raich and Diane Monson were engaged in the activity of producing marijuana, they were engaged in "economic activity". Therefore, Congress could regulate their intrastate activity. As a result, the Controlled Substances Act was Constitutional as applied to the locally cultivated marijuana.
"Congress has the power to regulate purely local activities" when doing so is necessary to implement a comprehensive national regulatory program. The CSA was a comprehensive program.[16]
Where people all too often go all wrong when looking at this case is by making a common mistake of taking two separate Constitutional clauses, the Commerce clause and the Necessary and Proper Clause, and collapse these two distinct clauses into one, then look for the power to regulate in this case under the Commerce Clause.
But the Commerce Clause really has not expanded… like at all… since it was first defined in Gibbons v Ogden[17] — In which John Marshall defined commerce as "trade” or “intercourse". Even in cases that everyone concludes are cases that expanded the Commerce Clause, such as Wickard commerce still meant the same thing it did in Gibbons. It is Congress' Implied Powers, through the Necessary & Proper Clause that does the heavy lifting in cases such as Wickard and Raich.
When People ask “How has the definition of commerce gone from meaning “trade” in the founding era, “economic activity” in the new deal era and “all human interaction” in Raich….
In fact, it hasn’t — and this is what is so pernicious about our conception of the implied powers doctrine. The inability to parse out cause from effect. Which makes it incredibly difficult to distinguish between managing symptoms and treating the disease.
…If it retains implied powers is the constitution still safe enough to restore limited government?
Ultimately, the best answer I can provide is yes and no.
Practically speaking, does the implied powers doctrine, as it exists and is understood today have the ability to restore limited government? No. Obviously not. Otherwise we wouldn’t be living in the world we are in. BUT, does the original meaning of the implied powers doctrine as understood by the framers and ratifiers who gave it legal force have that ability? Yes,. Emphatically yes!
But, we cannot hope to expect any real limitations on the meaning and scope of the Implied Powers Doctrine until more people understand the original meaning of this instrument, in light of its proper understanding as a legal document — and the indispensable nature of Agency Law in our interpretation and construction of implied powers.
What about you? Do you believe reform, under these common law fiduciary limitations is achievable? Do you perhaps believe ALL notions of implied powers must be scrubbed from our system of government to restore the limited federal republic our Constitution created? Or perhaps you are among those who believe our current more-expansive regime was an inevitably… or possibly even a more desirous outcome than any conservative reform. Please leave me a comment and share your thoughts on these questions.
I, for one, remain ever-optimistic that meaningful reform is achievable.
Cartago Delenda Est
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[1] Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.
[2] Gonzales v. Raich, 545 U.S. 1 (2005)
[3] https://www.law.cornell.edu/ucc/3/3-104#Instrument
[4] William Blackstone, Commentaries 1:255 (1765)
[5] Constitution Article 1, § 1
[6] McCulloch v. Maryland, 17 U.S. 316 (1819)
[7] McCulloch v. Maryland, 17 U.S. 316, 421 (1819)
[8] McCulloch at 423 (1819)
[9] United States v. E. C. Knight Co., 156 U.S. 1 (1895)
[10] Hammer v. Dagenhart, 247 U.S. 251 (1918)
[11] A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)
[12] NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 31 (1937)
[13] United States v. Darby, 312 U.S. 100, 115 (1941)
[14] Wickard v. Filburn, 317 U.S. 111 (1942)
[15] Wickard v. Filburn, 317 U.S. 111, 317 (1942)
[16] Gonzales v. Raich, 545 U.S. 1, 17 (2005)
[17] Gibbons v. Ogden, 22 U.S. 1 (1824)
[19] Hamilton, Alexander, An Opinion on the Constitutionality of an Act to Establish a Bank (February 23, 1791). The Papers of Alexander Hamilton, vol. 8, February 1791 – July 1791, ed. Harold C. Syrett. New York: Columbia University Press, 1965, pp. 97–134.
Beautifully constructed argument. And a great guest!