The Elastic Clause, the Fourteenth Amendment, and Federal v. State Power

While the dual processes of expansive federal power gained traction at the turn of the last century — and most of that driven by events at the time, abuses of the states, and the World Wars and econonomic turmoil that followed; then as now, people sough a single strong power, a “Give us a king!” — the Necessary and Proper Clause and the Fourteenth Amendment work very differently on governmental power. In simplest terms, one expands federal power and the other crushes state power.

This is a very general overview. I’m omitting many details, but the basics:

For much of our early history the Necessary and Proper Clause was read tightly. The courts held congress to enacting laws that really were necessary, in the plain meaning sense, to carrying out an enumerated federal power from Article I. As “necessary” received a looser interpretation, then congress could pass laws about more stuff. The clause’s favorite handmaiden has been the Commerce Clause ever since the New Deal, and Wickard v. Filburn in which the Court found that crops grown for personal use could affect interstate markets and therefore were subject to the penalty/destruction orders of the federal government. It seems like everything can affect interstate commerce and therefore falls under the lawmaking authority of the US Congress.

The Fourteenth Amendment performs an entirely different function. When the Constitution was ratified, the Bill of Rights only applied to the federal government. States, for instance, could and did have established religions. They collected taxes for them, even. Although it did not happen formally until the 1920’s, the courts found that the 14th incorporated the Bill of Rights against the States. (I’m skipping a “selective” or “complete” incorporation theory, and note that as a practical matter, most lawyers today assume it is a complete theory, especially after the 2nd got pulled in a few years ago, but the 3rd and the 8th are still dangling.)

So all of the prohibitions to the federal government listed in the first eight amendments, and the case law analysis that comes with them, are prohibited to the states. It doesn’t seem that complicated or controversial.

Enter Substantive Due Process, the idea that the “due process” of the 14th means something different than what it means in the 5th, that it includes other rights, say, emanating from penumbras of justices’ minds. This doctrine swallowed the Tenth Amendment. The powers not granted to the US Government or prohibited to the state governments are reserved to the state governments or the people? Well, now they belong to the federal judiciary, or specifically the nine robed lords who have granted themselves the power to declare fundamental rights that trump all else. If 5 of 9 Justices declare something a Fundamental Right, what power can touch it? Only another 5.

The term is not popular, considering what it does, but the doctrine is alive and well, regardless of whether we call it by its name or not.