What is the elastic clause of the Constitution? Learn the definition of elastic clause, why it is important and view examples of elastic clause cases.
Updated: 11/21/2023
The Elastic Clause | Definition, Importance & Examples
Table of Contents
- What is the Elastic Clause?
- History of the Necessary and Proper Clause
- Ratified Constitution Includes The Elastic Clause
- Why is the Elastic Clause of the Constitution Important?
- Examples: Elastic Clause Cases and Issues
- Lesson Summary
- FAQs
- Activities
Writing Prompts About the Elastic Clause:
Writing Prompt 1:
In at least a paragraph, explain the elastic clause of the Constitution.
Example: Explain that the elastic clause and the necessary and proper clause are the same thing, and that it is Article 1, Section 8 of the Constitution. Explain how the elastic clause got its name. This may help you more easily remember what the clause does and how it functions.
Writing Prompt 2:
In at least a paragraph, explain what enumerated powers are and the role they played in the necessity for the necessary and proper clause.
Tip: Consider whether all powers of the government can realistically be listed in the Constitution.
Letter Prompt 1:
Imagine that you are a Founding Father and you are helping to devise the new Constitution. Write a letter to a fellow Founding Father explaining the need for the elastic clause. Be as persuasive as possible, using facts from the lesson.
Example: In your letter, utilize the concept of enumerated powers and the idea that the Constitution was meant to last.
Graphic Organizer Prompt:
Create a chart or other type of graphic organizer that outlines the McCulloch v. Maryland court case.
Example: First provide some background information on what the case was about. Then list the three main components of the court's ruling in the case, and what this meant for the elastic clause.
What powers does the Elastic Clause give Congress?
The Elastic Clause gives Congress implied powers necessary and proper to execute its enumerated powers. For example, the Constitution specifically allows Congress to collect taxes but does not mention the creation of a National Bank. Alexander Hamilton argued that, under the Elastic Clause, Congress's expressed, enumerated power to tax and to manage trade gave it the implied power to create a National Bank. This was later upheld by the Supreme Court under McCollough v. Maryland. Throughout history, Congress has paired the Elastic Clause with the Commerce Clause to regulate activities that involve interstate commerce, including agriculture, printing currency, workplace discrimination, and the sale of firearms.
What amendment is the Elastic Clause in?
The Elastic Clause is not found in an amendment, but rather in the main body of the U.S. Constitution. Article I, Section 8 of the U.S. Constitution, enumerates 18 powers of Congress, with the last of these 18 being the Elastic Clause. The Elastic Clause allows Congress additional, implied powers to carry out the expressed powers listed in Article I, Section 8.
Why is the Elastic Clause of the Constitution important?
During debates about the ratification of the U.S. Constitution, James Madison and Alexander Hamilton argued that the new government would fail without the Elastic Clause. The authors of the Constitution could not possibly include every power Congress might need, then or in the future. Instead, they provided broad outlines of the types of powers Congress had. The Elastic Clause allowed them to use implied powers to execute the enumerated powers of the Constitution. Without the Elastic Clause, every time Congress encountered a new situation, a new amendment would need to be proposed, passed, and ratified. Following that lengthy and complex procedure would render Congress completely unable to function.
What is the Elastic Clause?
The Elastic Clause, also known as the Necessary and Proper Clause, is the last of 18 powers of Congress listed in Article I, Section 8 of the United States Constitution. This clause allows Congress implied powers not explicitly listed in the constitution as long as they are necessary and proper for carrying out the enumerated powers (expressed powers).
Table of Contents
- What is the Elastic Clause?
- History of the Necessary and Proper Clause
- Ratified Constitution Includes The Elastic Clause
- Why is the Elastic Clause of the Constitution Important?
- Examples: Elastic Clause Cases and Issues
- Lesson Summary
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The Elastic Clause appears in Article I, Section 8 of the United States Constitution, allowing Congress to make laws not specifically mentioned in the Constitution. This is also known as the Necessary and Proper Clause because that phrase appears in the language of the clause.
By definition, the Elastic Clause is a constitutional clause that allows Congress to pass the legislation needed to carry out its powers, both those expressly mentioned in the Constitution and also those implied by the Constitution. For the Elastic Clause to allow a power not established explicitly in the Constitution, the power must be both necessary and proper for carrying out the constitutionally approved authority of the government.
Why is It Called the Elastic Clause?
The Clause's name reflects its purpose: to stretch the powers of Congress to include situations the founding fathers did not anticipate. Prior to the adoption of the Constitution, the powers of the Continental Congress were limited to those expressly delegated in the Articles of Confederation. Congress had no ability to do anything that was not specifically listed, including regulate trade, levy taxes, maintain a military force, or negotiate with foreign powers. The writers of the new U.S. Constitution wanted to ensure that the new government would endure.
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At the 1787 Constitutional Convention, delegates debated the broad principles of the U.S. Constitution. Then a Committee of Detail worked on the specific wording of the document. The five-member committee included Oliver Ellsworth (Connecticut), Nathaniel Gorham (Massachusetts), Edmund Randolph (Virginia), John Rutledge (South Carolina), and James Wilson (Pennsylvania). The members of the committee wanted to produce a concise and simple document that could evolve and adapt to the nation's needs over time. They listed 18 powers of Congress, the 18th of which is the Elastic Clause.
Federalists and Anti-federalists Debate Draft of the Constitution
The draft of the Constitution was met with opposition from Anti-Federalists, who were concerned about consolidating power in a central government. The Anti-Federalists feared the Elastic Clause gave Congress limitless power while Federalists—those who supported ratification of the Constitution—argued that the Elastic Clause only gave Congress the ability to execute the powers enumerated in the Constitution. In Federalist Papers 33 and 44, Alexander Hamilton and James Madison defended the clause. Madison wrote, ''Without the substance of this power, the whole Constitution would be a dead letter.''
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The Constitution, including the Elastic Clause, was ratified in 1788. The clause itself reads: ''The Congress shall have Power...[t]o 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.''
Granting Expressed Powers and Implied Powers
The wording of the Elastic Clause has been a subject of ongoing analysis and debate. There are three important criteria for using this clause to expand and stretch Congress's powers:
- The powers should be for carrying out other powers of the federal government already expressly mentioned in the Constitution.
- The powers should be necessary.
- The powers should be proper.
The other powers listed in Article I, Section 8, are expressed powers. Expressed powers, also called enumerated powers, are the powers that the Constitution explicitly lists, identifies, and defines. The Elastic Clause, on the other hand, allows for implied powers. Implied powers, while not specifically mentioned in the Constitution, are required for carrying out the expressed powers.
Interpreting Article 1, Section 8, Clause 18
Strict constructionists interpret the clause very narrowly, claiming it only gives Congress additional powers without which it could not function. Loose constructionists interpret the clause more broadly, arguing that the clause gives Congress powers that are related to carrying out its enumerated powers. Loose constructionists also see the clause as allowing Congress to act in the interests of the nation in cases where the individual states cannot effectively do so. This debate has been ongoing since the nation's early history, with Thomas Jefferson and James Madison, who originally defended the clause, taking up the strict constructionist position and Alexander Hamilton advocating for a looser interpretation.
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Issues Addressed Using the Elastic Clause
Additional issues that focused on the interpretation of the Elastic Clause include:
| Legal Tender | In two 1871 decisions, the Supreme Court upheld the power of the federal government to continue to issue paper money as legal tender, which it had done during the Civil War. The Constitution expressly grants Congress the power to coin money. At issue was whether this referred only to minting coins or if the power could be interpreted more broadly to empower Congress in all matters of regulating currency. |
|---|---|
| Expansion of the Commerce Clause | Most significantly and broadly, the Elastic Clause has been applied to Congress's ability to regulate interstate trade. In many cases, the courts have ruled that Congress can regulate any activity that involves moving goods across state lines. The combination of the Elastic Clause with the Commerce Clause has been used to justify banning workplace discrimination, regulating agriculture, and even upholding federal kidnapping laws. |
| New Deal Legislation | The New Deal, designed to bring the United States out of the Great Depression, greatly expanded the powers of the federal government. As part of the relief, recovery, and reform programs, Congress created a number of new agencies. This power was drawn primarily from using the Elastic Clause to expand the Commerce Clause. |
| Gun Control | For most of the 20th century through today, Congress has relied on the combination of the Elastic Clause and the Commerce Clause to regulate the sale and production of firearms. Critics of this expansion of power argue that this legislation conflicts with the right to bear arms, protected under the Second Amendment. |
| Affordable Care Act | In 2012, the Supreme Court ruled that Congress could not impose an individual mandate on citizens to carry health insurance under the Affordable Care Act. The majority opinion held that imposing a penalty on individuals in this case, while possibly necessary, was not proper. |
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The Elastic Clause is important to the functioning of the federal government. The founding fathers could not list out every possible combination of issues the federal government might have to address. Instead, they outlined the role of Congress and gave it an important tool to carry out its duties.
By using the Elastic Clause to exercise powers not explicitly in the Constitution, Congress has the power to execute its role as the legislative branch of the U.S. Government. Without the Elastic Clause, Congress would have been limited by the powers expressly in the Constitution, and often unable to perform even those. For example:
- The Constitution refers to federal departments and offices but does not enumerate any powers that would allow Congress to create these offices or staff these departments.
- Congress has the expressed power to punish federal crimes, such as counterfeiting currency, but does not include any penalties for breaking federal law.
- While the government has the expressed power to make treaties, there is no enumerated power allowing Congress to allot funds for ambassadors and travel expenses.
- The Constitution does not provide the power to create a federal bank, despite Congress having other expressed financial powers.
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Throughout history, there have been a number of important cases where the Elastic Clause has been used to expand the necessary and proper powers of Congress or where the Supreme Court deemed an action of Congress to be unconstitutional.
McCulloch V. Maryland
One of the most important, early tests of the Elastic Clause was in the case of McCulloch v. Maryland. Earlier, in 1791, Alexander Hamilton had used the Elastic Clause to argue for the creation of a national bank. If Congress could levy taxes and borrow money, then it stood to reason that it could create a national bank to facilitate these activities. Southern Democratic Republicans opposed Hamilton's plan initially but eventually reached a deal in exchange for moving the nation's capital to Washington, D.C.
In 1819, Maryland challenged this interpretation of the Elastic Clause by taxing out-of-state banks, of which the Second National Bank was the only one. In the majority opinion in McCulloch v. Maryland, Chief Justice John Marshall wrote: ''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 consistent with the letter and spirit of the Constitution, are constitutional.''
Because Congress had the power to regulate interstate and foreign trade under the Commerce Clause, it also had implied powers necessary and proper for fulfilling this function. This decision allowed the Elastic Clause to be used as a justification for the expansion of congressional powers that are within the spirit of the enumerated powers and do not contradict any other part of the Constitution.
The Supreme Court further ruled in this case that the laws of the federal government, when operating within the Constitution, take priority over those of the states. The clause declaring federal law to be the ''supreme Law of the Land'' is known as the Supremacy Clause.
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Article I, Section 8 of the United States Constitution lists the powers of Congress, including the Elastic Clause.
- The powers of Congress that are explicitly stated in the Constitution are known as expressed powers or enumerated powers.
- The Elastic Clause, also known as the Necessary and Proper Clause, allows Congress to exercise implied powers—necessary and proper for carrying out the enumerated powers, though not explicitly stated in the Constitution.
- Even prior to the ratification of the Constitution, the Elastic Clause came under fire from Anti-Federalists concerned that it granted unlimited powers to the federal government. Federalists, including Alexander Hamilton, countered that it only allowed Congress to execute powers enumerated in the Constitution.
- In McCulloch v. Maryland, the Supreme Court, under Chief Justice John Marshall, upheld the use of the Elastic Clause to create the Second National Bank, ruling that Maryland could not tax the National Bank. The Supreme Court also drew upon the Supremacy Clause, which places federal law above state law when they conflict.
- The Elastic Clause is often paired with the Commerce Clause to regulate any activity that involves interstate trade.
Even today, debate surrounding the Elastic Clause continues. Loose constructionists take a broad view that allows Congress to legislate any activity that takes place across state lines while strict constructionists apply a narrower definition of necessary and proper.
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Video Transcript
Our Adapting Government
Governments, especially the U.S. government, look almost all-powerful. With an enormous military, a gigantic budget, and a global reach, the United States is a daunting presence on the world stage. It's unnerving, then, to think that it exists mostly because of a few sheets of paper, with a description written in ink about two centuries ago. How did the U.S. government get from that to what it is today?
Think about the Internet, for example. There's no way the Founding Fathers could have possibly imagined what the Internet can do, and there's no way they could've created a government that would know how to deal with it. What's truly amazing, then, about our Constitution is that there is, in fact, a rule that allows our government to accommodate the Internet, and toaster ovens, and endangered species, and interstellar travel...all the things the framers couldn't themselves imagine. It's called the necessary and proper clause, but it's more often known by a catchier title: the elastic clause.
The Elastic Clause
If you want to know what the government can do, specifically, you can look at Article I, Section 8 of the Constitution, which lists Congress' powers: it can levy taxes, declare war, and coin money, among other things. These are called the government's enumerated powers, also called expressed powers, or delegated powers.
The immediate problem faced by the framers of the Constitution was that it was impossible to list all the powers of government. First off, there's just too many; and second, they wanted to build a government that would last and stand the test of time. They knew that the world was going to change; remember, these were all very educated and enlightened men, raised in the 18th century, the Age of Reason. They knew they couldn't predict what the world would look like in even ten years' time, much less in a century.
So, they added a rule. Near the end of Section 8 of the Constitution, it says: 'Congress has 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 any Department or Officer thereof.'
What does this mean? Really, two things: first, don't think that the powers listed here are the government's only powers. Second, Congress can make any law it needs to, in order to carry out its enumerated powers. This 'necessary and proper' clause, then, allows the government to stretch beyond its literal description; that's why the clause is often nicknamed the elastic clause, since its flexibility allows the government to change and grow over time.
This sounds pretty vague, which is not the sort of thing that helps a brand new government; and it also sounds like it gave the government the authority to grow well beyond what many of the Founding Fathers probably intended. What it actually meant in practice wasn't really clear until 1819, when the Supreme Court, whose job it is to sort out these fuzzy areas in the Constitution, dealt with a case called McCulloch v. Maryland.
McCulloch v. Maryland
In 1791, the federal government created a national bank, the Bank of the United States. There's nothing in the Constitution that says Congress can do this, however, and a lot of states didn't like it. So one of them - Maryland - decided to try and get rid of it by taxing it. So, the question was: can a state tax a federal bank? And can Congress create a national bank that states have to live with?
The Supreme Courts Chief Justice, John Marshall, looked to Article I, Section 8, with its 'necessary and proper' language. In his ruling, Marshall said the government was limited; but common sense said that certain powers had to exist in order for it to accomplish its stated powers. These 'implied' powers could exist because of the 'necessary and proper' clause; after all, Marshall reasoned, how could Congress go about exercising its taxation powers without an institution to do it, like a bank?
In ruling for the federal government, then, John Marshall and the Supreme Court established three main concepts: first, the national government is supreme to the states; second, that there are implied powers in the Constitution; and third, that the 'necessary and proper' clause allowed them to exist.
This is why, today, the U.S. government can pass laws about how toaster ovens can be made, and how telecommunications corporations may conduct their business, and whether or not the gray wolf should be protected on federal land, and how much money to spend on a manned mission to Mars. Without the elasticity of the 'necessary and proper' clause, Congress could do none of these things, and we would be - figuratively and almost literally - stuck in the 18th century.
Lesson Summary
The enumerated powers of Congress are found in Article I, Section 8, of the U.S. Constitution, and they list the clearly expressed obligations and duties of the government. One part of that section, known as the necessary and proper clause, allows Congress to make any law it deems necessary and proper to carry out its expressed powers. This authority wasn't made clear until the 1819 Supreme Court case, McCulloch v. Maryland, in which Chief Justice John Marshall decided that the clause in question gave the Congress implied powers, granting the government the ability to remain flexible and adapt to future issues.
A Few Points
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- The U.S. government's ability to adapt to changing times lies within the elastic clause.
- The elastic clause is actually the 'necessary and proper' clause found in Article I, Section 8, of the U.S. Constitution.
- The elastic clause grants the government implied powers which allows it to adapt to modern needs.
Learning Outcomes
View this lesson, then subsequently apply your knowledge so that you can:
- Identify the source of the elastic clause in the Constitution
- Discuss the clause as it relates to the powers of Congress
- Explain the purpose and importance of the elastic clause
- Sum up the Supreme Court case McCulloch v. Maryland
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The Elastic Clause | Definition, Importance & Examples
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