D2.Civ.4.9-12: The Constitution's Powers, Responsibilities and Limits, Then and Now

Overview

Lesson Procedure

60-75 minutes of class time across 5 phases.

1. Warm-Up5-10 minutes
2. Direct Instruction20 minutes
3. Guided Practice15 minutes
4. Independent Practice15-20 minutes
5. Closure5-10 minutes

1. Warm-Up5-10 minutes

   Warm-Up Prompt

   "The Constitution never mentions an air force, a national bank, a space agency or the interstate highways. The federal government has all of them. Where could the power come from? Write two possible answers."

   Collect answers and name the vocabulary. Enumerated powers are the powers the Constitution lists, such as the powers of Congress in Article I, Section 8. Implied powers are powers that are not listed but are claimed as means of carrying out listed ones, through the clause giving Congress power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Reserved powers belong to the states or the people under the Tenth Amendment. Responsibilities are duties the Constitution places on officials, such as the President's duty to "take Care that the Laws be faithfully executed" (Article II, Section 3). Limits are rules that stop a branch or level of government, such as the Bill of Rights or the separation of powers. Today's question has three parts: how the Constitution sets up these powers, responsibilities and limits; how they have changed; and why some are still argued over.

2. Direct Instruction20 minutes

   Part 1: The first great argument, 1791. In February 1791 Congress passed a bill to charter a Bank of the United States, the plan of Treasury Secretary Alexander Hamilton. President Washington, unsure whether the Constitution allowed it, asked his cabinet for written opinions. Secretary of State Thomas Jefferson said no (Source 1); Hamilton said yes (Source 2). Gloss: "incorporation" (creating a corporation, a body with legal powers of its own), "nugatory" (useless, of no effect), "latitude of construction" (freedom in interpreting), "conducive to" (helping to bring about).

   1I consider the foundation of the Constitution as laid on this ground: That " all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.

   2The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution.

   [...]

   32. The second general phrase is, "to make all laws necessary and proper for carrying into execution the enumerated powers." But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase.

   4[...] Suppose this were true: yet the Constitution allows only the means which are "necessary," not those which are merely "convenient" for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to everyone, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one power, as before observed. Therefore it was that the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory

   [...]

   5Perhaps, indeed, bank bills may be a more convenient vehicle than treasury orders. But a little difference in the degree of convenience cannot constitute the necessity which the Constitution makes the ground for assuming any non-enumerated power.

   1It will naturally have been anticipated, that in performing this task, he would feel uncommon solicitude. Personal considerations alone, arising from the reflection that the measure originated with him, would be sufficient to produce it.

   [...]

   2Now it appears to the Secretary of the Treasury that this general principle is inherent in the very definition of government, and essential to every step of progress to be made by that of the United States, namely: That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.

   [...]

   3It is certain that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to.

   [...]

   4It leaves, therefore, a criterion of what is constitutional, and of what is not so. This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.

   • A narrow reading as a limit on power (Source 1, paragraphs 3-4)

     How does Jefferson read the word "necessary" in the necessary and proper clause, and what limit does his reading set?

     Result: Jefferson says the Constitution allows only means that are "necessary," not those that are merely "convenient," and that necessary means are "those means without which the grant of power would be nugatory." A bank might make collecting taxes easier, but taxes can be collected without one, so the bank is not necessary. His reading is a limit: Congress may use only means that are indispensable to a listed power.

   • A broad reading as a source of power (Source 2, paragraphs 2 and 4)

     What principle does Hamilton start from, and what test does he offer for deciding whether a measure is constitutional?

     Result: Hamilton starts from the principle that "every power vested in a government is in its nature sovereign" and includes "a right to employ all the means requisite and fairly applicable" to its ends. His test (paragraph 4): if the end is within a listed power, the measure has "an obvious relation to that end," and it "is not forbidden by any particular provision of the Constitution," it is constitutional.

   Washington signed the bank bill on February 25, 1791. That settled the bank for the moment, not the argument: the bank's twenty-year charter ran out in 1811, Congress chartered a second bank in 1816, and the State of Maryland then taxed the second bank's branch in Baltimore. The case reached the Supreme Court.

3. Guided Practice15 minutes

   Part 2: The Court decides, 1819. Groups read Source 3, Chief Justice John Marshall's opinion for a unanimous Court in McCulloch v. Maryland, and mark where Marshall agrees with Hamilton, where he answers Jefferson, and where he sets a limit. Gloss: "enumerated" (listed), "exigencies" (urgent needs), "pretext" (a false reason given to hide the real one), "circumscribes" (draws a boundary around).

   1This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, [is] now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.

   [...]

   2This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.

   [...]

   3We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

   [...]

   4Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

   [...]

   5After the most deliberate consideration, it is the unanimous and decided opinion of this Court, that the act to incorporate the Bank of the United States is a law made in pursuance of the constitution, and is a part of the supreme law of the land.

   • How an interpretation changed the powers (Source 3, paragraph 3)

     Compare Marshall's test in paragraph 3 with Hamilton's test in Source 2, paragraph 4. What changed between 1791 and 1819?

     Result: The tests match closely. Hamilton: an end within the specified powers, a measure with "an obvious relation to that end," and "not forbidden." Marshall: "Let the end be legitimate, let it be within the scope of the constitution," and use means that are "appropriate," "plainly adapted to that end," and "not prohibited." In 1791 this was one cabinet officer's argument; in 1819 it became the Supreme Court's reading of the Constitution. No words of the Constitution changed, but the accepted scope of Congress's implied powers did.

   Show Diagram 1, a timeline of changes in federal powers, responsibilities and limits. Point out the two ways the Constitution changes: by formal amendment (Article V: two-thirds of each house of Congress proposes, three-fourths of the states ratify) and by interpretation, as in McCulloch. Then ask groups to place one more change on the board from their own knowledge, and say which kind of change it was.

4. Independent Practice15-20 minutes

   Part 3: A question still argued: war powers. The Constitution divides war powers. Article I, Section 8 gives Congress power "To declare War," "To raise and support Armies," "To provide and maintain a Navy" and to make the rules for the armed forces; Article II, Section 2 makes the President "Commander in Chief of the Army and Navy of the United States." Congress has formally declared war eleven times, in five wars, the last in 1942. Since then presidents have sent forces into combat many times, sometimes with a law authorizing it and sometimes without. In 1973, near the end of the Vietnam War, Congress passed the War Powers Resolution (Source 4) over President Nixon's veto. Source 5 is the Congressional Research Service's nonpartisan explanation of the arguments since then. Gloss: "hostilities" (fighting), "imminent" (about to happen), "statutory authorization" (permission given by a law), "concurrent resolution" (a measure passed by both houses but not sent to the President).

   1§1541. Purpose and policy

   2(a) It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

   [...]

   3(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

   4§1542. Consultation; initial and regular consultations

   5The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

   [...]

   6§1544. Congressional action

   [...]

   7(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543(a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

   1In the post-Cold War world, Presidents have continued to commit U.S. Armed Forces into potential hostilities, sometimes without a specific authorization from Congress. Thus the War Powers Resolution and its purposes continue to be a potential subject of controversy.

   [...]

   2Congress adopted the resolution in response to the perception that Presidents had assumed more authority to send forces into hostilities than the framers of the Constitution had intended for the Commander in Chief. President Nixon in his veto message challenged the constitutionality of the essence of the War Powers Resolution, and particularly two provisions. He argued that the legislative veto provision, permitting Congress to direct the withdrawal of troops by concurrent resolution, was unconstitutional. He also argued that the provision requiring withdrawal of troops after 60-90 days unless Congress passed legislation authorizing such use was unconstitutional because it checked presidential powers without affirmative congressional action. Every President since the enactment of the War Powers Resolution has taken the position that it is an unconstitutional infringement on the President’s authority as Commander in Chief.

   [...]

   3The congressional view was that the framers of the Constitution gave Congress the power to declare war, meaning the ultimate decision whether or not to enter a war. Most Members of Congress agreed that the President as Commander in Chief had power to lead the U.S. forces once the decision to wage war had been made, to defend the nation against attack, and perhaps in some instances to take other action such as rescuing American citizens. But, in this view, he did not have the power to commit armed forces to war. By the early 1970s, the congressional majority view was that the constitutional balance of war powers had swung too far toward the President and needed to be corrected. Opponents argued that Congress always held the power to forbid or terminate U.S. military action by statute or refusal of appropriations, and that without the clear will to act the War Powers Resolution would be ineffective.

   4In his veto message, President Nixon said the Resolution would impose restrictions upon the authority of the President which would be dangerous to the safety of the Nation and “attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years.”

   [...]

   5Supporters of repeal contend that the President needs more flexibility in the conduct of foreign policy and that the time limitation in the War Powers Resolution is unconstitutional and impractical. Some holding this view contend that Congress has always had the power, through appropriations and general lawmaking, to inquire into, support, limit, or prohibit specific uses of U.S. Armed Forces if there is majority support. The War Powers Resolution does not fundamentally change this equation, it is argued, but it complicates action, misleads military opponents, and diverts attention from key policy questions.

   6A third view is that the War Powers Resolution has not been adequate to accomplish its objectives and needs to be strengthened or reshaped. [...]

   Show Diagram 2 while students read: it sets the war powers of Congress and the President side by side with the duties the 1973 law adds.

5. Closure5-10 minutes

   Exit ticket: "One constitutional question from today that has stayed open for a long time is ___. It is still argued because ___." Add one quotation from a source.

   Teacher notes: All passages are quoted exactly. Jefferson's "[XIIth amendment.]" is explained in the source note: he quoted the amendment that became the Tenth. Hamilton writes of himself in the third person. Source 3 is the National Archives' abridgment, so its own omissions are not marked. Source 4 is the War Powers Resolution as it appears in the U.S. Code, which renumbers its sections; Source 5 uses the original section numbers (Section 4(a)(1) of the Resolution is §1543(a)(1) of the Code). Source 5 is a 2017 report: its statement that "Every President since the enactment" has called the law unconstitutional describes the record through 2017.

   Neutral framing: Both the bank and war powers questions have serious constitutional arguments on more than one side, made over time by presidents and members of Congress of both major parties. The rubric scores how well students explain and support an argument, not which side they choose. Keep discussion on institutions and constitutional reasoning rather than on current officeholders.

Differentiation Strategies

Assessment Guidance

1. Question 1 of 20 · Multiple Choice

   In Source 1, paragraph 1, what does Jefferson call "the foundation of the Constitution"?

   APowers not delegated are reserved to the states or people BThe President's power to veto any bill he thinks is unwise CThe power of Congress to provide for the general welfare DThe supremacy of national laws over the laws of the states

2. Question 2 of 20 · Multiple Choice

   In Source 1, paragraph 4, what does Jefferson predict would happen if convenience were enough to justify a non-enumerated power?

   ACongress would have to ask the states before acting BThe Supreme Court would strike down every new law CAll delegated powers would merge into one power DThe Bank of the United States would fail within a few years

3. Question 3 of 20 · Multiple Choice

   In Source 2, paragraph 3, how does Hamilton say the word "necessary" is often used?

   ATo mean absolutely indispensable, with no other choice BTo mean listed by name in the Constitution CTo mean approved by a vote of the states DTo mean needful, useful or conducive to

4. Question 4 of 20 · Multiple Choice

   Source 2, paragraph 1 helps a reader judge Hamilton as a source. What does he admit there?

   AThat the Attorney General agreed with him BThat the bank would cost the Treasury nothing CThat the President had already decided DThat the bank plan was his own idea

5. Question 5 of 20 · Short Answer

   Compare Jefferson's and Hamilton's readings of the necessary and proper clause. Which reading gives the national government more power, and what limit does each still accept?

   Show model answer

6. Question 6 of 20 · Multiple Choice

   In Source 3, paragraph 1, what does Marshall say about the extent of the government's powers?

   AThe question was settled in 1791 and will not arise again BThe question will be decided by the states in each case CIt is perpetually arising and will likely keep arising DThe question can be answered only by amending the Constitution

7. Question 7 of 20 · Multiple Choice

   In Source 3, paragraph 2, why does Marshall say the Constitution does not list every means the government may use?

   AIt was meant to last for ages and meet unforeseen crises BThe framers forgot to finish that part of the document CThe states asked the framers to keep the list of means short DA list of means would be a limit that Congress could ignore

8. Question 8 of 20 · Multiple Choice

   According to Source 3, paragraph 4, when would the Court declare an act of Congress "not the law of the land"?

   AWhen Congress used a means the Court thought was not the best one BWhen it was prohibited, or a pretext for objects not entrusted to it CWhen a state legislature passed a resolution objecting to the law DWhen the President refused to enforce the law as written by Congress

9. Question 9 of 20 · Multiple Choice

   In Source 3, paragraph 4, why does Marshall refuse to judge how necessary the bank is?

   AIt would cross into the legislature's role BThe Court had no evidence about the bank's finances CThe bank had already been closed by Congress DMaryland had agreed that the bank was necessary

10. Question 10 of 20 · Short Answer

    How did McCulloch v. Maryland change the powers of the national government compared with the situation in 1791? Name one limit that remained after the decision.

    Show model answer

11. Question 11 of 20 · Multiple Choice

    Under §1541(c) of Source 4, in which situations may the President introduce armed forces into hostilities?

    AWhenever the President alone judges it to be in the national interest BOnly after the Supreme Court has reviewed and approved the action COnly after a vote of approval by the United Nations Security Council DWar declared, a specific law, or an emergency caused by an attack

12. Question 12 of 20 · Multiple Choice

    Under §1542 of Source 4, once forces have been introduced into hostilities, how long must the President keep consulting Congress?

    AUntil the next session of Congress begins BUntil forces are out of hostilities or removed from them CFor forty-eight hours after the first report DOnly once, at the moment the fighting starts

13. Question 13 of 20 · Multiple Choice

    Under §1544(b) of Source 4, if Congress does nothing, what is the most time the President may keep forces in hostilities after a report is required, and why?

    A48 hours, the time the law allows for the written report B60 days, the first deadline named in the section C90 days: 60, plus up to 30 to withdraw safely D120 days: two full periods of 60 days each

14. Question 14 of 20 · Multiple Choice

    According to Source 5, paragraph 2, what did President Nixon argue in his veto message?

    AThat two of its provisions were unconstitutional BThat the Resolution did not go nearly far enough CThat Congress should declare war more often DThat the courts should decide all war powers questions

15. Question 15 of 20 · Multiple Choice

    According to Source 5, what position has every president since 1973 taken (as of the report's 2017 update)?

    AThat the Resolution should be strengthened by Congress BThat it has never once been used by any president CThat it applies only to wars that Congress has formally declared DThat it unconstitutionally infringes on the Commander in Chief

16. Question 16 of 20 · Multiple Choice

    According to Source 5, what do some supporters of repeal say Congress could already do without the Resolution?

    ARemove any president who sends troops abroad without a vote BLimit uses of the armed forces through funding and laws CAsk the Supreme Court to order an end to a war DReplace the Commander in Chief with a general chosen by Congress

17. Question 17 of 20 · Multiple Choice

    What is the "third view" of the War Powers Resolution described at the end of Source 5?

    AThat it falls short and should be strengthened or reshaped BThat it should be repealed because it is unconstitutional CThat it works well as written and should not be changed at all DThat it should be replaced by a constitutional amendment

18. Question 18 of 20 · Short Answer

    Using Source 4 and the constitutional text in Independent Practice, identify one war power, one responsibility and one limit, and say which branch holds each.

    Show model answer

19. Question 19 of 20 · Short Answer

    Explain why war powers are still contested. Give the strongest constitutional argument for the congressional view and for the presidential view, using Sources 4 and 5.

    Show model answer

20. Question 20 of 20 · Short Answer

    Choose either the bank question (1791-1819) or the war powers question (1973 to today). Explain how the answer to the question changed over time, and whether the question is still open.

    Show model answer

These standards connect to D2.Civ.4.9-12: prerequisites to review first, parallel standards at the same level, and next steps that build on it.

Standard text: National Council for the Social Studies (NCSS), The College, Career, and Civic Life (C3) Framework for Social Studies State Standards: Guidance for Enhancing the Rigor of K-12 Civics, Economics, Geography, and History (Silver Spring, MD: NCSS, 2013). NCSS was not involved in the production of this lesson and does not endorse it.