The Enumerated Powers - Article 1, Section 8, Clause 1

Article 1, Section 8 of the Constitution enumerates the powers of Congress. Beyond those enumerated powers Congress has no others. Critical to our discussion of the Enumerated Powers is to first establish the Original Meaning and intent of Article 1, Section 8, Clause 1:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

This is probably one of the most hotly debated Clauses in the Constitution. From the liberal point of view the Power To lay and collect Taxes, Duties, Imposts and Excises, and to pay Debts and provide for the common Defense and general Welfare of the United States stand as two separate powers granted to Congress - thus their view that Congress and Government have unlimited authority, regardless of the Enumerated Powers of the following clauses. We turn to

Joseph Story, Commentaries on the Constitution for our answer:

§ 904. Before proceeding to consider the nature and extent of the power conferred by this clause, and the reasons, on which it is founded, it seems necessary to settle the grammatical construction of the clause, and to ascertain its true reading. Do the words, "to lay and collect taxes, duties, imposts, and excises," constitute a distinct, substantial power; and the words, "to pay debts and provide for the common defence, and general welfare of the United States," constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to "provide for the common defence and general welfare," the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, "for the common defence and the general welfare."

§ 905. The former opinion has been maintained by some minds of great ingenuity, and liberality of views. The latter has been the generally received sense of the nation, and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these commentaries, is that, which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words, which are necessarily to be understood in this interpretation. They will then stand thus: "The congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and to provide for the common defence and general welfare of the United States;" that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In this sense, congress has not an unlimited power of taxation; but it is limited to specific objects,--the payment of the public debts, and providing for the common defence and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative authority. In what manner this is to be ascertained, or decided, will be considered hereafter. At present, the interpretation of the words only is before us; and the reasoning, by which that already suggested has been vindicated, will now be reviewed.

§ 906. The constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers. This is apparent, as will be presently seen, from the history of the proceedings of the convention, which framed it; and it has formed the admitted basis of all legislative and judicial reasoning upon it, ever since it was put into operation, by all, who have been its open friends and advocates, as well as by all, who have been its enemies and opponents. If the clause, "to pay the debts and provide for the common defence and general welfare of the United States," is construed to be an independent and substantive grant of power, it not only renders wholly unimportant and unnecessary the subsequent enumeration of specific powers; but it plainly extends far beyond them, and creates a general authority in congress to pass all laws, which they may deem for the common defence or general welfare. Under such circumstances, the constitution would practically create an unlimited national government. The enumerated powers would tend to embarrassment and confusion; since they would only give rise to doubts, as to the true extent of the general power, or of the enumerated powers.

§ 908. On the other hand, construing this clause in connexion with, and as a part of the preceding clause, giving the power to lay taxes, it becomes sensible and operative. It becomes a qualification of that clause, and limits the taxing power to objects for the common defence or general welfare. It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation.

Thus, we see from Story's commentaries that the intent of the Founders was in fact not to create a government of general and unlimited powers. Paragraph 908 is essential to our understanding, the last sentence says it all: "It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation." For Story's complete discussion please see the following link: Article 1, Section 8, Clause 1.

To further bolster the view held by Story is the following letter of James Madison to which I will add some emphasis:

James Madison to Joseph C. Cabell

30 Oct. 1828Writings 9:324--25

2. A history of that clause, as traced in the printed journal of the Federal Convention, will throw light on the subject.

It appears that the clause, as it originally stood, simply expressed "a power to lay taxes, duties, imposts, and excises," without pointing out the objects; and, of course, leaving them applicable in carrying into effect the other specified powers. It appears, farther, that a solicitude to prevent any constructive danger to the validity of public debts contracted under the superseded form of government, led to the addition of the words "to pay the debts."

This phraseology having the appearance of an appropriation limited to the payment of debts, an express appropriation was added "for the expenses of the Government," &c.

But even this was considered as short of the objects for which taxes, duties, imposts, and excises might be required; and the more comprehensive provision was made by substituting "for expenses of Government" the terms of the old Confederation, viz.: and provide for the common defence and general welfare, making duties and imposts, as well as taxes and excises, applicable not only to payment of debts, but to the common defence and general welfare.

There follows this the next 17 powers specifically granted to Congress. In my next installment I will address the Commerce Clause: Article 1, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;