Elastic Clause

“Elastic Clause”. This clause is also often referred to as the “necessary and proper” or the “sweeping” clause. It can be found in article 1, section 8 of the constitution, clause 18. The “elastic clause” puts forward that Congress has the power to pass any law that they have deemed to be both necessary and proper to implement the powers that have already been delegated to the Congress. (U.S Const., art. I, §8). In essence, this clause offers a way for the US Congress to “achieve its’ constitutional mandated ends”(The Heritage Foundation, 2011). The purpose of this clause to allow the organisation of the government, while also helping to effectuate the power of Congress, and in doing so it introduces a great deal of flexibility to the constitution.

For example, the Eighth Amendment prohibits “cruel and unusual punishments” (U.S. Const. am. 8), but does not go on to say what punishments can be considered cruel and unusual. In this way, the constitution sets out the fundamental principles, while allowing the people of various generations to interpret the specificities of the articles. This has led to the constitution being considered a “living constitution” – a document that evolves and adapts over time, changing to fit new circumstances as they emerge, without being formally amended through the special amendment process (Strauss, 2010). By considering the US constitution a living document, it lends weight to the position that it is indeed a flexible constitution because although there are limited formal amendments that have been passed through Congress over time, the interpretation of the basic principles of the constitution may change to mean different things in line with the

Woodrow Wilson once referred to the Supreme Court as “a constant constitutional convention in continuous session”, due to the role they have played in interpreting the constitution as it is written. Due to the ambiguity found in much of the phrasing in the constitution, judicial interpretation of the constitution can be considered both necessary and inevitable (Comer, Gruhl et al., 2001). The courts have the power to declare unconstitutional the actions of the other branches and units of the government in what is known as judicial review (Tannahil, 2002). The first case in which the court elaborated on the principle of judicial review was that of Marbury v. Madison in 1803 and put forward that in the case of conflict between the constitution and a statute, it is “the duty of the judicial department to say what the law is” (Smith, 1975). Following this, the case of Fletcher v Peck (1810) is of equal importance as it was the first case in which a state law was declared by the court to be unconstitutional. Both of these cases go to show that judicial interpretation allows some flexibility into the constitution. It allows things that are not expressly stated in the constitution to be made