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In the US constitutional amendments, it is frequently stated that

Congress shall have power to enforce this article by appropriate legislation.

Why are these clauses necessary? Are there, for example, times when Congress does not have the power to enforce articles in the constitution? I'm just asking because have a hard time imagining a government being prohibited from enforcing its own constitution.

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    Good question. Might be better suited for Law. My initial expectation is that this is a strictly legal matter, but there may be political ones (e.g. during the debates about it in congress it became insisted that this clause be added for such-and-such reasons, regardless of whether or not it was formally required). – zibadawa timmy Jun 17 at 5:18
  • @zibadawatimmy: Good point... somehow it didn't hit me to put it in Law, but I agree, maybe it'd have been better suited there. – Mehrdad Jun 17 at 5:21
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    It may remain a good question here, as I think, on slightly further reflection, that there were a lot of concerns that former slave states would find ways to circumvent the intent of abolition without violating it in the eyes of the courts (and in fact they did make several such attempts, with varying success); and just generally a desire to make sure those states were brought to heel and (forcibly) reintegrated according to the North's designs. So I think there may be both interesting political/historical and legal aspects involved. – zibadawa timmy Jun 17 at 5:25
  • It would be good to point out specific examples of where this clause occurs. – jpmc26 Jun 17 at 16:09
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Why is “Congress shall have power to enforce this article by appropriate legislation” necessary?

In the absence of the clause, the intent of the amendments would be delayed until the Supreme Court decided cases affected by those amendments.

The quoted sentence, in some form, occurs in the following Amendments: 13, 14, 15, 18, 19, (21), 23, 24, and 26. [Amendment 21 does not have the quote, but is included here because it repealed Amendment 18.]

Each of the above amendments, in one way or another, are related to rights. Congress has no other expressed legislative authority to protect rights.

The quoted sentence does not occur in the following Amendments: 11, 12, 16, 17, 20, 22, 25, and 27.

Each of these amendments are related to the powers or structure of government.


Expressed legislative powers include:

Article 1, Section 8, Clause 18:

Congress shall have Power ... 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.

Article IV, Section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Article IV, Section 3:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

[Emphases added in the above.]

[Note that Article VI, Section 2, unlike Sections 1 and 3, has no expressed authority for Congress to make laws, leaving it to the Court to decided what is, and what is not, a violation of privileges and immunities.]

Of particular interest is Clause 18, which may be separated into two clauses to understand its effect.

  1. 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.

  2. To make all Laws which shall be necessary and proper for carrying into Execution the Powers vested by this Constitution in any Department or Officer of the Government of the United States.

Item 1 covers all powers vested by the Constitution in the Government of the United States, including Article II, Section 2 assigned to the President regarding such powers as treaties and appointments.

Item 2 covers the structure of government, in particular, the clauses vesting the legislative, executive, and judicial powers found in the first three Articles.

Thus, for amendments related to powers and structure, Congress has all the legislative authority it needs; for amendments related to rights, Congress had to be granted the legislative authority to give effect to those amendments.

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In Article I, Section 8 of the United States constitution, there is an enumeration of the powers of Congress:

1: 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;

2: To borrow Money on the credit of the United States;

3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

7: To establish Post Offices and post Roads;

8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

9: To constitute Tribunals inferior to the supreme Court;

10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

13: To provide and maintain a Navy;

14: To make Rules for the Government and Regulation of the land and naval Forces;

15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

17: 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;—And

18: 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.

In theory, the US government cannot engage in other activities not enumerated. The Bill of Rights (the first ten amendments) further limits these powers.

In practice though, the general welfare clause (number 1 above) and the necessary and proper clause (number 18 above) have been interpreted so broadly that limitations are rare. One area where the limitation is enforced modernly is intrastate commerce. The enumerated power is international, interstate, and with the native tribes. But even there, sometimes they find in favor. For example, Gonzales v. Raich.

In a comment, you asked

I'm not fully sure I get it. Like if Congress passed a law declaring that any government institution that violates freedom of press/religion/etc. must pay the victims $X, would the Supreme Court potentially rule that unconstitutional, even though the entire goal is to penalize violation of the first amendment by the government? It seems really bizarre

The government could not claim that the first amendment gave them the power to pay a fine in the case of government restriction. But it might claim that such a fine would be necessary and proper.

Note also that the first amendment doesn't say that the government can't restrict freedoms of speech, press, religion, etc. It says that the Congress can't pass laws restricting them. That has generally been interpreted to mean that the rest of the government can't restrict such freedoms because there is no valid law allowing such restriction. But the amendment itself doesn't restrict even government power. It restricts the legislature.

A better example might be that the federal government does not have the power to compel a private business to respect constitutional freedoms. For example, a private business can generally require someone making a speech to leave, even though speech is protected under the first amendment. To require protections for free speech, the government and the business have to have a relationship. For example, the government might give the business money (e.g. the government gives money to educational institutions).

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    +1 but the private business example seems far less similar since forcing private businesses to respect freedom of speech wouldn't be enforcing "that article" (Amendment I), but something else entirely. The example I tried to give was about enforcing that very article, and I was indeed thinking of the necessary and proper clause. So to clarify, would the worry have been that the Supreme Court would rule such a thing would not be "necessary and proper", and hence the constitution would need to lay it out explicitly? It seems rather strange, but I don't know... – Mehrdad Jun 17 at 7:30
  • There are examples of the Federal government compelling a private business to respect Constitutional freedoms. When Bell refused to install telephones for people whose politics they did not like, the government stepped in and forced them to do so, in exchange for Bell being indemnified for the content of the communication. – TKK Jun 17 at 16:37
  • +1 for the very last paragraph – Peter Vandivier Jun 17 at 18:07
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Brythan's answer gives a good rundown on why the clause was likely necessary from a legal and constitutional standpoint. Since this is the Politics SE, it seems appropriate to look for what the political motivations were; what the intent of the legislators that first passed the amendment in the US Congress were, and the points they raised in the debates about it. I found a paper discussing this. It provides a lot of interesting historical context for the amendment. I will quote a few bits that seem relevant to the matter at hand.

The Thirteenth Amendment was the first of three Reconstruction Amendments. Its primary purpose [was] to grant Congress the power to protect freepersons against any effort to bind them to slavery or involuntary servitude. The concept of “freeperson” was broadly understood to include any of the privileges and immunities not enjoyed by persons in bondage. Congress only realized more explicit protections for equal rights would be needed when President Andrew Johnson tried to derail Reconstruction. At the time of Thirteenth Amendment’s passage there was no conversation about the need for any further amendments. From the debates, it appears clear that members of Congress were confident that the Thirteenth Amendment would allow it to eliminated [sic] the lingering vestiges of slavery and all forms of labor exploitation. Radicals proceeded with the proposed Fourteenth Amendment only after their proposals for rebuilding the Union were met by President Andrew Johnson’s repeated vetoes. And the disfranchisement of blacks ultimately lead to passage of the Fifteenth Amendment, which was meant to provide blacks with the full scope of political citizenship.

...

During debates about the Thirteenth Amendment at the Thirty-Eighth Congress, [sic] repeatedly spoke of how changes to the Constitution would allow the legislative branch to pass laws for protecting individual rights. Many of the congressional speeches on the proposed Thirteenth Amendment evidence a clear understanding that the enforcement clause would expand legislative authority into matters that had previously been reserved to the states. Senator Reverdy Johnson expressed the hope that the Amendment would give practical application to the self-evident truths of the Declaration... His sentiment was representative of the supermajority in Congress, which expected the Amendment to provide Congress with the power to protect each citizen’s life, liberty, and pursuit of happiness.

...

[Iowa Congressman James F. Wilson] believed that the Amendment would give Congress the power to pass laws securing “human equality” by treating persons of all races as “equals before the law.” Federal laws passed pursuant to Section 2 would displace any contrary state laws by operation of the Supremacy Clause. Wilson believed Section 2 provided Congress the authority to pass laws guaranteeing that “equality before the law” would “be the great corner-stone” of American governance.

...

That is not to say that the Thirty-eighth Congress held a modern conception of fundamental rights but that by including the Enforcement Clause they anticipated federal legislation would be necessary to punish any private and public infringement against inalienable freedoms.

  • +1 I think this finally gets me to the heart of the issue. Do I understand correctly the following? The idea is that, without these clauses, if states violated people's rights, Congress would be unable to punish them, because the Supreme Court could well rule that Congress is infringing on states' rights—but crucially, this would not effectively nullify the amendments as I had implicitly worried, because the recourse of an actual federal lawsuit in the Supreme Court against the states themselves would still exist. (Edit: I scrolled down 2 inches and saw that's what the next answer says!) – Mehrdad Jun 18 at 12:13
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    @Mehrdad The lawsuit path would be individuals alleging (unconstitutional) harm from the law(s) whose cases then make their way into the federal court system (who would have jurisdiction because the first section of the 13th amendment specifically applied to the states and not just the federal government). The concern was that you could end up with a patchwork of faux-slavery laws across the nation, where the courts and local politics were the only possible sources of resolution. And that was dangerous. The enforcement clause let Congress apply uniform (minimum) standards across the board. – zibadawa timmy Jun 18 at 14:03
  • Awesome thank you! Wish I could accept both answers. – Mehrdad Jun 18 at 16:17
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The first 10 Amendments to the Constitution are built on constricting the powers of the government. It was an answer to the concerns of the anti-Federalists, to fully codify the basic rights not detailed by the Constitution. The 11th is a constraint on the interaction between Federal Judiciary and the States, while the 12th redefines how the President is elected.

The phrase you're concerned appears in a number of Amendments that specifically serve to expand the powers of the Federal Government. It embraces the legislative powers of Congress in creating that power.

  • +1, but I'm not fully sure I get it. Like if Congress passed a law declaring that any government institution that violates freedom of press/religion/etc. must pay the victims $X, would the Supreme Court potentially rule that unconstitutional, even though the entire goal is to penalize violation of the first amendment by the government? It seems really bizarre – Mehrdad Jun 17 at 5:27
  • So this is accurate as concerns the legal necessity, but the why is spelled out more fully in Brythan's answer. – zibadawa timmy Jun 17 at 9:35
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    @Mehrdad - I believe it's necessary to spell it out because of the language of the Tenth 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." That one pretty much says they have to spell it out. – PoloHoleSet Jun 17 at 16:40
  • @PoloHoleSet: It's easy to word it that way, but what that's really saying is that otherwise the Supreme Court might one day have ruled that it's in fact unconstitutional for Congress to try to enforce the constitution. I can't claim that's outright crazy, but it honestly doesn't really seem like a sane ruling either, so I'm trying to figure out if that's really it. Is it? – Mehrdad Jun 18 at 11:19
  • @Mehrdad - No, it's merely, delineating that power, making sure they don't undermine another Amendment, and don't lay the groundwork for someone to speculate that there was that specific intent in that omission, when passing other laws. It's just a matter of adding a sentence to make sure things are very clear and unambiguous. Other powers that the federal government claims for itself are clearly outlined. This prevents people from claiming that certain laws are overstepping the boundaries of the Amendment. The document is a limiting one, as Cynic mentioned, and an empowering one. – PoloHoleSet Jun 18 at 16:29
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So one of the problems here is the assumption that the government "enforces it's own Constitution". In the United States, the only people who can be found guilty of a constitional violation are those empowered by the institutions of government at any level of Federal Power (Federal Government, State Government, Local Governments). Thus, Congress does not need to pass a law about violations of Freedom of Speech as the First Amendment holds that Congress shall not pass any law baring free speech... If a government institution does suppress such a power, the people so oppressed have the right or standing to initiate suits against the government for such a violation.

As mentioned, the 10th Amendment limits the Federal Government's power by stating that any power not discussed in the Constitution as a power of the Federal Government devolves to the state or the individual. This basically leaves these rights to be determined as need. For example, Do I have the right to have an alligator as a pet? Some states, like Alaska, have never discussed the matter because they have little need... Florida on the other hand, might have a reason to discuss the matter a bit more than Alaska... Just as Florida will have less rules about shooting a Polar Bear than Alaska would. Of course, the Founding Fathers were lazy about this issue and wrote the 9th Amendment to say that while the Rights of Government were detailed explicitly in the Constitution, the rights of the people are not fully detailed and they have more rights than the Founders wanted to list, and thus, the Founders washed their hands of pet Alligators and the likes of silly things, electing to let Florida deal with the matter (thus far, they have not because Florida Man).

Most of the Amendments that have this language (The two that come to mind are the 13th Amendment, which outlawed slavery and the 18th Amendment, which enacted Prohibition on Alcohol) are federalizing a power that previously fell under the 10th Amendment . Because of the way the Constitution was set up, the Federal Government would be making an illegal (Unconstitutional) law. Thus, to enforce the crime of owning slaves and alcohol, the Constitution must empower the Federal Legislative Branch (Congress) to make the laws, and remove it from the power of the States. Without such a clause, there could not be any new laws nor removal of old laws as they are not in the preview of any level of government to make laws (as congress cannot do it because they haven't been granted the power and the states cannot do it, because these amendments restrict the states from making laws on such an issue.).

As a TL;DR summary, the Constitution was written as a list of dos and don'ts for the government's authority (Do regulate interstate commerce, do not regulate matters of political speech). An ordinary citizen holding no elected office or Civil Administration position (hired or appointed by an elected official or someone similarly hired or appointed) are the only people who can violate the Constitution when acting in their duties of an agent of the government. Someone in Private Industries cannot violate Constitutional Law. Congress may pass only laws the Constitution says it can pass, and everything else is restricted to it, and an amendment federalizing an matter must explicitly give the power to congress or the 10th Amendment puts the burden on the states.

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The Tenth Amendment states that:

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.

Therefore, if such a clause is not included in subsequent amendments, then this would make the amendment enforceable by states, and not Congress.

Take, for example, the 13th Amendment which covers slavery. If it did not include the section about Congress's ability to enforce it, then slavery laws would become a state responsibility. Given that this amendment was brought in when the subject of abolishing slavery was controversial, it would mean that some states would be likely to have weaker laws than others. With this clause, a federal slavery law, and applicable punishment, would become possible.

  • If [the 13th amendment] did not include the section about Congress's ability to enforce it, then slavery laws would become a state responsibility. This is too vague for me unfortunately. Could you clarify whether you're saying courts would've potentially seen it as unconstitutional for Congress to try to legislate this in that case? – Mehrdad Jun 18 at 11:23
  • @Mehrdad: If no such provision existed and someone were found to be holding slaves, the Constitution itself would grant any entity that discovered the slaves the authority to release the them directly, but I don't see that it would allow the federal government the authority to regard the slaveholder's actions as criminal. – supercat Jun 18 at 20:36
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In the originalist view of the Constitution, the only powers which the government may exercise are the ones explicitly stated (without stretching) in the words written. So, for example, "the press" could be argued to only mean printed words and would not apply to news broadcast by speaking words.

By explicitly stating that an amendment authorizes the Congress to pass laws specifying how behavior may be shaped and narrowed, such an amendment preempts any future constitutional challenges to legitimacy of laws passed by Congress in order enforce these powers.

Without this clause, an argument could be made the amendment only means to narrow the reach of the governments powers. But for the clause you asked about, such an argument may or may not be accepted, depending on the future composition of the court.

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