The Loopholes of Section 8

I got something now to think about
I'll work all day but not to pay it out
Keep on working
Keep on working
--Pete Townshend

If one reads the Constitution of the United States, it's difficult to conclude that this document is the perfect government framework promoted in social studies classrooms and by some policy wonks. Instead, it reads like a document of compromise, and one geared towards consolidating power towards a central authority. Moreover, the document seems structured in a fashion that virtually guaranteed expansion of the State over time.

Parenthetically, a similar view appears to have been held by many, if not the majority, of American citizens at the time of the Constitution's creation and ratification in the 1787-1789 period (see for example, Cornell 1999; Storing 1981).

No portion of the Constitution reflects the expansionist tone better than Article 1, Section 8. This section, which specifies the powers of Congress, includes a number of open ended clauses which over the years have served as 'loopholes' for the US government to justify more power and authority over the people. Three clauses stick out in particular:

General Welfare clause. "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 [emphasis mine] of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States." New Deal and other social programs have been justified by evoking the General Welfare clause.

Commerce clause. "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." From this clause sprang myriad government regulatory bodies and commissions that rendered US markets 'unfree' soon after the Constitution's ratification.

Necessary And Proper clause. "To make all laws which shall be necessary and proper [emphasis mine] 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 is the final clause of Section 8, and reads like a catch-all for anything that Congress might do that is not specified elsewhere in the document. The open-ended nature of this clause has made it a favorite citation of bureaucrats when justifying increases in government scope.

Early Federalists, such as Alexander Hamilton, understood the utility of these loopholes in promoting Statist agendas.

There are those who claim that government size has grown because we have strayed away from the Constitution as written. I submit that the opposite may be true--that largely by following the Constitution and exploiting its specified loopholes, we were bound to assemble the governmental Leviathan that we currently face.

References

Cornell, S. 1999. The other founders. Chapel Hill, NC: University of North Carolina Press.

Storing, H.J. (1981). What the Anti-Federalists were for. Chicago: University of Chicago Press.