Annotation 3 - Article I


Two important doctrines of constitutional law--that the Federal Government is one of enumerated powers and that legislative powers may not be delegated--are derived in part from this section. The classical statement of the former is that by Chief Justice Marshall in McCulloch v. Maryland: ''This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.'' 34  

That, however, ''the executive power'' is not confined to those items expressly enumerated in Article II was asserted early in the history of the Constitution by Madison and Hamilton alike and is found in decisions of the Court; 35 a similar latitudinarian conception of ''the judicial power of the United States'' was voiced in Justice Brewer's opinion for the Court in Kansas v. Colorado. 36 But even when confined to ''the legislative powers herein granted,'' the doctrine is severely strained by Marshall's conception of some of these as set forth in his McCulloch v. Maryland opinion. He asserts that ''the sword and the purse, all the external relations and no inconsiderable portion of the industry of the nation, are intrusted to its government;'' 37 he characterizes ''the power of making war,'' of ''levying taxes,'' and of ''regulating commerce'' as ''great, substantive and independent powers;'' 38 and the power conferred by the ''necessary and proper'' clause embraces, he declares, all legislative ''means which are appropriate'' to carry out the legitimate ends of the Constitution, unless forbidden by ''the letter and spirit of the Constitution.'' 39  

Nine years later, Marshall introduced what Story in his Commentaries labels the concept of ''resulting powers,'' those which ''rather be a result from the whole mass of the powers of the National Government, and from the nature of political society, than a consequence or incident of the powers specially enumerated.'' 40 Story's reference is to Marshall's opinion in American Insurance Co. v. Canter, 41 where the latter said, that ''the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.'' 42 And from the power to acquire territory, he continues arises as ''the inevitable consequence,'' the right to govern it. 43  

Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds that ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the ''rights expressly given, and duties expressly enjoined'' by the Constitution; 44 the power to impart to the paper cur rency of the Government the quality of legal tender in the payment of debts; 45 the power to acquire territory by discovery; 46 the power to legislate for the Indian tribes wherever situated in the United States; 47 the power to exclude and deport aliens; 48 and to require that those who are admitted be registered and fingerprinted; 49 and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. Thus, in United States v. Curtiss- Wright Corp., 50 decided in 1936, Justice Sutherland asserted the dichotomy of domestic and foreign powers, with the former limited under the enumerated powers doctrine and the latter virtually free of any such restraint. That doctrine has been the source of much scholarly and judicial controversy, but, although limited, it has not been repudiated.

Yet, for the most part, these holdings do not, as Justice Sutherland suggested, directly affect ''the internal affairs'' of the nation; they touch principally its peripheral relations, as it were. The most serious inroads on the doctrine of enumerated powers are, in fact, those which have taken place under cover of the doctrine--the vast expansion in recent years of national legislative power in the regulation of commerce among the States and in the expenditure of the national revenues. Verbally, at least, Marshall laid the ground for these developments in some of the phraseology above quoted from his opinion in McCulloch v. Maryland.


[Footnote 34]   17 U.S. (4 Wheat.) 316, 405 (1819).

[Footnote 35] Infra, pp. 445-452.

[Footnote 36]   206 U.S. 46, 82 (1907).

[Footnote 37] 4 Wheat. (17 U.S.), 407.

[Footnote 38] Id., 411.

[Footnote 39] Id., 421.

[Footnote 40] 2 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1256. See also id., 1286 and 1330.

[Footnote 41]   26 U.S. (1 Pet.) 511 (1828).

[Footnote 42] Id., 542.

[Footnote 43] Id., 543.

[Footnote 44] Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 616 , 618-619 (1842).

[Footnote 45] Juilliard v. Greenman, 110 U.S. 421, 449 -450 (1884). See also Justice Bradley's concurring opinion in Knox v. Lee, 79 U.S. (12 Wall.) 457, 565 (1871).

[Footnote 46] United States v. Jones, 109 U.S. 513 (1883).

[Footnote 47] United States v. Kagama, 118 U.S. 375 (1886).

[Footnote 48] Fong Yue Ting v. United States, 149 U.S. 698 (1893).

[Footnote 49] Hines v. Davidowitz, 312 U.S. 52 (1941).

[Footnote 50]   299 U.S. 304 (1936).

Copied to clipboard