Supreme Court Revision of The
Elastic Clause Paved the Way
For Radical Expansion of Federal Power

Revision of the so-called Elastic Clause has been the primary means by which the Supreme Court has unleashed Federal power in America. It is an egregious example of the maxim that if men will not be ruled by God, they will without fail be ruled by tyrants.

The Bible itself is treated as an elastic document to say whatever its enemies want it to say. Is it any wonder the U.S. Constitution would receive the same treatment at the hands of deceitful men?

The Elastic Clause

The Tenth Amendment reinforces the fact that the Constitution was not an unlimited grant of power to the federal government. It states that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Unfortunately, the last paragraph of Article I, Section 8 has been taken to authorize just such a grant by judicial activism. The so-called elastic clause grants Congress 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."

This elastic clause has been interpreted via judicial activism to mean that the federal government may appropriate power to do almost anything it desires. This misinterpretation has paved the way for the expansion of the welfare state in twentieth century America. For example, a modern General Education Degree (GED) prep book uses the word "enumerated" rather than "delegated" to describe the sixteen powers of Congress, then states that the elastic clause grants other powers not enumerated or listed:

“These powers are called enumerated powers because they are listed in Article One of the U.S. Constitution. In addition to enumerated powers, the Constitution provides for powers that are not listed. The elastic clause enables the legislative branch to stretch its authority to meet the needs of specific situations that the Founding Fathers could not foresee.”(3.1)

This is clearly a novel interpretation, in direct conflict with the intent elucidated by the founders in the Federalist Papers. The Federalist Papers were written originally as anonymous editorials to persuade the thirteen colonies to ratify the Constitution. James Madison, the principle architect of the Constitution, explained his true intent in Federalist #41:

“It has been urged and echoed that the power "to lay and collect taxes . . . and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare . . . .

“Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; . . . but what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows and is not even separated by a longer pause than a semicolon? . . . For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”(3.2)

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In other words, Madison and the founders clearly spelled out what specific, delegated powers they meant to be included within the general powers: to provide for the common defense and general welfare. These powers, and only these powers, were assigned by the states to the Congress. The elastic clause was not an additional grant of power.

Even then, the necessary signatures were not obtained until the Bill of Rights was added, the capstone of which was the Tenth Amendment. It limited the powers of the federal government only to those specified in the Constitution itself. It is a negative document with no allowance for expansion of the elastic clause.

Davy Crockett’s Interpretation

Congressman Davy Crockett was an early champion of Madison’s strict interpretation of the Constitution. When the House of Representatives was debating an appropriation for the benefit of the widow of a distinguished naval officer, Crockett rose to speak:

“. . . we must not permit our respect for the dead or our sympathy for a part of the living to lead us into an act of injustice to the balance of the living. I will not go into an argument to prove that Congress has no power to appropriate this money as an act of charity. Every member upon this floor knows it. We have the right, as individuals, to give away as much of our own money as we please in charity; but as members of Congress we have no right so to appropriate a dollar of the public money.”(3.3)

“We have no…. authority to appropriate it as a charity. I cannot vote for this bill, but I will give one week's pay, and if every member of Congress will do the same, it will amount to more than the bill asks.”

As radio commentator, Mary Sterritt tells it, there was silence on the floor of the House as Crockett took his seat. When the bill was put to a vote, instead of passing unanimously as had been expected, it received only a few votes. The next day a friend asked Crockett why he spoken against a bill for such a worthy cause.

In reply, Crockett related the following story: Just a few years before, he had voted to spend $20,000.00 of public money to help the victims of a fire in Georgetown. When the legislative session was over, Crockett made a trip back home to campaign for his re-election. He encountered one of his constituents.

The man told Crockett, “I voted for you the last time. I shall not vote for you again.” Crockett, feeling he had served his constituents well, was stunned. He inquired as to what he had done wrong. The man replied, “You gave a vote last winter which shows that either you have not capacity to understand the Constitution, or that you are wanting in the honesty and firmness to be guided by it.

This interpretation is anathema from the perspective of modern judicial activism. Sadly, it takes only a casual survey of the contemporary political scene to see that the voice of both Madison and Crockett have been drowned in a flood of twentieth century judicial activism.