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March 2017 Policy Study, Number 17-5


A Commentary on the American Constitution


Part 6



Section 8, Clause 17 states that it is Congress’s duty “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, dockyards, and other needful buildings . . . ”  (Emphasis added).  Section 8, Clause 18 states that it is Congress’s duty “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.”


Clause 17 seems to be a specific grant of authority to the federal government of exclusive legislative power, which is limited to the District of Columbia and, by purchase from and consent of the states in which they are placed, other areas, seemingly restricted in size and usage, located in the several states.  Whatever legislative authority is not granted to the federal government by this instrument, nor restricted to the states, is supposed to remain in the domain of the state and to the people thereof.  (See the Tenth Amendment.)  Clause 18 is much broader; but still, it is restricted to the powers “vested by this Constitution.”  The pertinent question we must ask ourselves becomes: What is the scope of those legislative powers vested by this Constitution?  Clause 18 gives us a clue.  It speaks of “foregoing powers” and “all other powers vested by this Constitution.”  It is my assumption that “foregoing powers” refers to Article I, Section 8.  At the very most, it is limited to what has appeared previously in the preamble and Article I, Sections 1 through 8, which makes no difference at all.  Upon a careful reading of the instrument, you will confirm that it is only in Article I, Section 8, where any powers of legislation are conferred upon our national elected officials.  “Other powers,” such as regulating elections, establishing courts, or making treaties, are placed variously throughout the instrument.  But the 18 clauses of Article I, Section 8 contain the sum total of all legislative powers conferred.  Not only that; it also contains the entire scope of the prescribed and legitimate legislative prerogative of the national government.


Items of legislative concern that lie outside the realm of those set down in Section 8 are proscribed.  That is, they lie entirely outside the scope of the legitimate authority of national legislators and fall instead to the dominion of the several sovereign states.  Furthermore, any statute enacted by the national legislature that falls outside the limitations of Section 8 is properly called usurpation.  Bear in mind three items that have been given the force of law by our national legislature: the national speed limits we lived under for many years; nationally mandated seat-belt usage (in reality, the national government extorted the enactment of said laws by the states through the withholding of federal highway funds if they did not comply); and federal regulations that determine when any of the several states may allow their youths to smoke.  Please also bear in mind that the fact you find these items either desirable or undesirable is not under discussion.  The question is whether the national government has legitimate authority to prescribe these ends.  To that end, you decide which clause of Article I, Section 8, or any portion of the Constitution for that matter, grants the national Legislature the authority to enforce these items of supposed law.


It is my assumption that you were probably forced to shelter them under the “general welfare” phrase of clause one or the “regulate commerce” phrase of clause three.  It appears in either case, at least to me, that in order for one to legitimize these items under the framework of the instrument, one must allow the purpose of the clause to be contorted and extended well beyond the probable intent of the men who wrote the instrument.  If this is the case, we must certainly be bordering on usurpation.  At the time of the writing of the Constitution, the thirteen original colonies were considered as independent sovereign states, nations unto themselves.  With the adoption of the new constitution, their status unquestionably changed.  If the new government was to be successful, it was necessary that they cede a portion of their independence to the new government; but they were, or at least believed they were, to retain their sovereignty.  It is exceedingly doubtful that the instrument would have been ratified if they had believed otherwise.  The argument that continues to this day is over how much independence they relinquished.  There was no quantifiable amount stated, nor could there be.  It was left to the states, as one of the “separated” powers of government, and to the national government to continually define the limits of one another.


Whenever one of the territories met the qualifications for statehood, they were ceded a territory with well-defined boundaries and became a sovereign state under the same conditions and on par with all existing states.  The new and expanded Union was to retain some of the properties of a federation.  Again, the quantity of this property is a matter for continual redefinition.  An arrangement of this sort, with sovereign and at least semi-independent governments working in concert toward a common good, was called federalism.  The principle of federalism instructs us that the states are to be free to regulate their own internal affairs, without external interference.  The interest of the national government is only to engage when the states interact with outside entities, which would duly affect others of the several states.  These would include actions with another of the several states or the people thereof; actions with foreign states or the people thereof; and actions concerning the state and the national government.  It would also include those areas of common interest among the states (i.e. commerce, joint security, etc.) that are specifically set down in this instrument.  Within the precepts of federalism, the national government is not to usurp any of the authority of the state, excepting the case that the state may affect interests which lay outside its duly established borders.  If this were not the case, of what utility is the state?  It becomes just another department of national government, a government that legislates right down to the private individual in all cases.  (See Clause 17.)


Where the Articles of Confederation produced a Union too weak to be truly effective, the Constitution allowed for a strong and vigorous national government, capable of every necessity for which it was created.  But the federal side of its nature was to balance what our Founders viewed as the natural, aggressive nature of a national government.  We are in urgent need of a return to equilibrium.  It appears to me that while the ideals of federalism may not be dead and rotting, they are certainly critically ill.  Each day, we move inexorably nearer the thoroughly national government our Founders feared.  Through personal inattention and the lack of instilled knowledge of the benefits of federalism to liberty in our youth, we have all but squandered the prize for which our Founders shed their blood.


We now have a national government that, without hesitation, pokes its nose into every nook and cranny of our lives.  A national government, which, with little pretext, feels obliged and even obligated to determine exactly what is in the best interest of the private individual.  A government whose actions, in the best light, indicate that it views us as unemancipated minors, incapable of managing our own affairs.  How long before we are reduced to the status of a house pet or livestock, without recourse to any demand of an overreaching national government?  We want to believe it can’t happen in the United States.  Read history.  Read current events.  The condition exists all around us.  All we have to do for this condition to be a part of our lives is be complacent.  A better alternative is to search out, finance, and help elect officials at all levels who understand the problem, who will demand remedy on our behalf, and who will accept nothing less.




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