The Dubious Enumberated Power Doctrine

Abstract:     
The enumerated power doctrine maintains that Congress may undertake only the activities specially mentioned in the text of the Constitution. Even the necessary and proper clause at the end of article I, section 8 and the tax clause at the beginning were at one time said not to expand Congress's power beyond the enumeration.

The Constitution, however, neither says nor was intended to say that the listed powers were exclusive. The Articles of Confederation had limited the Congress to "expressly delegated" powers and the Framers removed the limitation because it had been "destructive to the Union." The best reading of the Constitution, moreover, is that it gives Congress the general power "to provide for the common Defence and general Welfare of the United States." The phrase is a synonym for the Convention's supposedly mandatory resolution allowing Congress to "legislate for the common interests of the Union." The enumerated powers of article I, section 8 are best read as desirable activities that are illustrative of the appropriate national sphere, but not exhaustive.

The claim that the enumeration of powers in article I, section 8 is exhaustive has never reflected actual practice. When activities necessary for the common interest arise, we generally find that they are authorized although not enumerated. Sometimes the unenumerated power is implied without any basis in text. Sometimes an unenumerated power is implied by stretching the words of the text to cover a desired power. The common defense and general welfare standard tells us how far to stretch the words of the enumeration and tells us when implied powers are appropriate.

Accepted Paper Series