At the time of Chief Justice John Marshall's decision in McCulloch v. Maryland,
the country was not sure how much power the federal government should
have. Many people believed it should have only the powers specifically
listed in the Constitution. These people came to be known as "strict
constructionists." Others believed the Constitution could be interpreted
to give the federal government powers not specifically listed there.
These people came to be known as "loose constructionists."
This debate is still not settled today. Over time, the
relationship between the people, the states, and the federal government
has evolved. Often the loose-constructionist view of the Constitution
has prevailed, resulting in the federal government assuming many powers
that would probably be surprising even to the loose constructionists of
In this activity, you will examine three brief excerpts from
documents relating to the evolution of the balance of power between the
individual states and the federal government. The first excerpt is
Article II of the Articles of Confederation, which went into effect in
1781. This document was the first attempt by the new nation at
establishing a national government and the rules for which parts and
levels of the government would have which powers. The Articles of
Confederation proved to be a failure and were replaced by the U.S.
Constitution, which took effect in 1789. The second excerpt you will
examine is the 10th Amendment to the Constitution. The third excerpt is
a passage from Article I, Section 8 of the Constitution, known as the
"Necessary and Proper" clause.
Articles of Confederation, Article II
Each state retains its sovereignty, freedom, and independence, and
every power, jurisdiction, and right, which is not by this Confederation
expressly delegated to the United States, in Congress assembled.
Questions to Consider
This excerpt is from the Articles of Confederation, which were in
effect from 1781 to 1789. According to this Article, if there were any
powers not explicitly given to the national government, who had these
Think about the powers of the national government today. What
are some of the responsibilities of the national government? What do
some of the federal (national) agencies do? Then think about what the
national government would not be allowed to do today if the Articles of
Confederation were still in effect. What changes in technology and
society have happened that the framers of the Articles of Confederation
may not have imagined?
United States Constitution, 10th Amendment
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
Questions to Consider
Compare the text of the 10th Amendment to the text of Article II of the
Articles of Confederation. Both documents refer to the delegation of
powers to the national government; in the first document, there is one
word before the word "delegated" which is missing in the 10th Amendment. What
is that word, and how does its omission in the 10th Amendment make its meaning
different from Article II?
The Articles of Confederation were a failure and were abandoned
largely because they established a central government that was too
weak. Why do you think the people who drafted this Amendment, which was
adopted as part of the Bill of Rights, omitted the word referred to in
United States Constitution, Article I, Section 8: Powers Granted to Congress
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; To borrow money
on the credit of the United States; To regulate commerce with foreign
nations, and among the several states, and with the Indian tribes; To
establish a uniform rule of naturalization, and uniform laws on the
subject of bankruptcies throughout the United States; To coin money,
regulate the value thereof, and of foreign coin, and fix the standard of
weights and measures; ...
[and other powers as well. See Article I, Section 8 of the Constitution for a complete listing.]
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.
Questions to Consider
Review this section of the Constitution, which lists the powers
granted to Congress. Then, review the power that has come to be known as
the "necessary and proper" clause, or the "elastic clause." How could
this clause, together with the 10th Amendment, be interpreted to permit
the federal government to create a national bank?
In your opinion, taken together, do the Necessary and Proper
Clause and the 10th Amendment give too much power to the federal
government? Explain your answer.