Enclave Clause and The Necessary and Proper Clause

“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…”

“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.”

Today we are going to look at Clauses 17 and 18 of Article 1, Section 8. Both of these clauses go hand in hand.

First, let’s look at clause seventeen, known as the enclave clause.  This clause gives the Federal Government the right to set up and govern the District of Columbia, as well as purchase land and exercise it’s federal right over that land.  The purchase however must meet the following criteria;

  • the state legislature must consent to the purchase.
  • congress must consent to the purchase
  • the purchase of any land by the government must be for one of the reasons stated in the clause, ‘for the Erection of Forts, Magazines, Arsenals, dock- yards, and other needful Buildings.’

Again, without the State’s consent, the federal government was incapable of any purchase of property and exclusive federal authority over that property was nonexistent.  Notice that the authority granted in this clause is over that which is either necessary for the Nation’s defense (such as military installations), or economy (such as post offices).

The District of Columbia, otherwise known as Washington D.C., is the heart of our government of the United States of America.  The land on which The Capitol Building sits was ceded by the states of Virginia and Maryland.  James Madison understood the necessity of a specific seat for government that was strictly under Congress’s jurisdiction and separate from the authority of any single state.  He writes in the Federalist Paper No. 43;

”The indispensable necessity of complete authority at the seat of government, carries its own evidence with it…This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence…It is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it…The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident.  The public money expended on such places, and the public property deposited in them, requires that they should be exempt from the authority of the particular State.  Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it.  All objections and scruples are here also obviated, by requiring the concurrence of the States concerned, in every such establishment.”

Now let’s look at Clause 18, known as the Necessary and Proper Clause.  This clause enables Congress to use any means reasonable to put the above powers into action.  It also allows for Congress to enact legislation that is necessary to carry out the powers of other branches of the government, such as to organize or reorganize the executive branch.  This clause has often been hotly debated, and with good reason, as some argue that this clause enables congress to possess unlimited power to assert their authority over areas that the states alone should decide.

The framers of the Constitution crafted this clause to serve two purposes however: To facilitate organization of the government, and to assist putting into force the other enumerated powers of Congress.  Congress could not prescribe all points of government organization, or foresee all future instances where Congress would need the power to enact certain laws.  James Wilson, one of the founding fathers, signers of both the Constitution and Declaration of Independence, as well as one of the six original justices of the Supreme Court appointed by George Washington, proposed the “necessary and proper clause” to help with this problem.  It’s use?  To authorize laws for carrying into execution the other federal powers.  This clause ultimately enhances the powers already given to Congress.  As James Wilson explained:

“…the words ‘necessary and proper’ are limited, and defined by the following, ‘for carrying into execution the foregoing powers. It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.


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