Explain the doctrine of expressed and implied power within the U.S. Constitution. Which leaders supported each approach and how did their thinking change over time? What does this show about the early political development of the United States?
Write a 5 paragraph essay in answer to the above prompt.
Essays should include a thesis argument (see Working on a Thesis under "Files" if you are unclear about this requirement) in the first paragraph, as well as supporting analysis and evidence, including specific examples, quotes and paraphrase from primary documents and class materials/sources. See the attached rubric for the grading criteria.
The Constitution Expressed and Implied Power Implied Power is interpreted from Expressed Power 1. Executive a. Commander in Chief : “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…” b. Treaties: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…” c. Appointments: “...he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Implied Power Arguments Hamilton (Federalist, Nationalist) ● Implied powers are a natural extension of expressed powers ● the legistlative branch is sovereign and therefore must be able to implement its expressed powers ● Credit will aid the nation to repay its debts, gain security, and respect ● A national bank will help stabilize markets and grow the economic potential of a nation-state Jefferson (anti-Federalist, States’ Rights) ● The national government is limited to the powers expressed in the Constitution ● A national bank will invite corruption and a cabal of elites ● Freedom requires independence of thought and this can only be provided by propertied interests not monied interests (agrarian landowner v. speculative market) Social Preconditions of Freedom ● By 1800 indentured servitude had all but disappeared (Foner, 19). ● A strict division in the South between master and slave became entrenched even as the North dropped allusions to “mastery” and substituted economic relationships between a boss and free workers. ● Property became the symbol for an expanded equality and drove Westward Expansion and the dispossession of Native Americans. ● Freedom “from” government was the initial foundation of American liberty. These preconditions are juxtaposed to the rise of the institutions of the state and their need for more control (including taxation) in order to create an effective structure with sufficient power to protect property domestically and the nation from foreign aggression. Implied Power of the Legislative Branch ● Commerce Clause ○ “Congress shall have the power... To regulatre Commerce with foreign Nations, and among the several States, and with the Indian Tribes..” ● Elastic Clause ○ “Congress shall have the 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. make all laws that are necessry and proper.” ● Supremacy Clause ○ “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. McCulloch v. Maryland (1819) “The Government of the Union, though limited in its powers, is supreme within its sphere of action, and its laws, when made in pursuance of the Constitution, form the supreme law of the land. There is nothing in the Constitution of the United States similar to the Articles of Confederation, which exclude incidental or implied powers. If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” “Necessary and Proper” “The power of establishing a corporation is not a distinct sovereign power or end of Government, but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the Constitution to the Government of the Union, it may be exercised by that Government. If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.” The Elastic Clause Grants Broad Power ● “Its terms purport to enlarge, not to diminish, the powers vested in the Government. It purports to be an additional power, not a restriction on those already granted. No reason has been or can be assigned for thus concealing an intention to narrow the discretion of the National Legislature under words which purport to enlarge it. The framers of the Constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness.” ● “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.”