Tuesday, April 12, 2016

Constitution Series Part 10: Article I, Section 8, Clauses 17 and 18

Time to finish off Section 8! Finally. The only other clause this long is Article II, Section 1. So, look forward to that.


Section 8
[The Congress shall have Power] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;
Here we have the wordiest clause of Section 8, which establishes the right of Congress to effectively act as the city council to the nation's capitol. This clause also specifies the size of the district (no more than ten miles squared, or 100 square miles) so that the capital grounds don't become unwieldy or take up too much land from whichever state donates the territory.

In short, this clause establishes what eventually became Washington, D.C. It was important that we establish a seat of government separate from the states, both for the sake of the government and for the sake of the state it would otherwise reside in. The government needed to protect itself, and it was important that no state be required to provide that protection.

This was not an abstract concern. In 1783, four hundred soldiers marched on Philadelphia to convince the Continental Congress to pay them for their work during the Revolutionary War. The government under the Articles of Confederation, however, was in no position to pay anyone. The Congress requested that the Pennsylvania state government assign the Congress some protection, but they refused. As a result, the seat of the government moved to one different city after another over the course of the next few years until this Constitution granted Congress the ability to establish a seat of government separate from the states.

The location of the capital was a matter of debate, with both New York and Pennsylvania being the most likely candidates. However, in a deal worked out between fierce rivals Alexander Hamilton and Thomas Jefferson, the district was eventually located in the south near Virginia, Jefferson's home state. In exchange, the federal government would consolidate state debts, allowing Hamilton to create a financial system that could stabilize the economy.

The location ended up straddling the Potomac River, at the border of Virginia and Maryland. The 100 square mile district was named Columbia, and the city they constructed to be the seat of our government was named Washington. Thus, the city we now call Washington, District of Columbia (Washington, D.C. for short).

D.C. is in a strange situation, as it's not a state and doesn't have representation in Congress, despite the fact that Congress has legislative authority over the district. So, in effect, they're governed by people who, by law, don't live there. The District of Columbia lacks several other rights granted to states as well. For instance, apparently the Second Amendment doesn't apply to D.C. since the Second Amendment protects the rights of citizens to bear arms as part of the state militias. D.C. isn't a state, so it was ruled that its citizens have no protection from the Second Amendment. As I understand it, D.C. is currently fighting for statehood.

In addition to establishing the national capital, this clause grants federal jurisdiction to all federally owned and operated property within states. This particularly applies to military installations, which shouldn't be under state jurisdiction because, as Joseph Story put it, "In truth, it would be wholly improper, that places, on which the security of the entire Union may depend, should be subjected to the control of any member of it."

In fact, though, the federal government has jurisdiction over all sorts of places, from single buildings (or even just parts of single buildings) to huge swaths of land (national parks, for instance).
—And 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.
And, finally, Congress has the power to pass whatever laws it needs to in order to put those previous powers into effect. I mean, sure, it's implied that Congress has the power to pass laws to make those other powers effective, but they knew that this Constitution was going to be scrutinized, so why not be explicit?

This clause also gave Congress the power to establish the other branches of government. For instance, they used this power to determine the number of justices on the Supreme Court and otherwise establish the structure of the federal court system.

That said, the meaning of "necessary and proper" is the subject of much debate. It's generally seen to apply to any legislation which is intended to further the cause of one of the other powers listed in Article I, Section 8, but the extent of the power is unclear.

More than anything, the power to make "necessary and proper" legislation to "regulate Commerce" (as in Article I, Section 8, Clause 3) is the subject of much speculation. It's over this clause that Alexander Hamilton and Thomas Jefferson argued over the establishment of a national bank, the first of many such debates. Often, the limits of this clause were decided by the courts, though their decisions haven't been consistent.

In the end, it's clauses like these that enable Congress to keep testing the limits of what they're allowed to do. They test their limits, and the public and the courts determine if it's proper or not. After all, what's considered "necessary and proper" changes over time, and this clause grants Congress the power to evolve with those changing definitions.

Continue to Part 11: Article I, Section 9, Clauses 1 and 2

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