Article I, Section 8: The Powers of Congress

Section 8 is the longest section of the Constitution and the engine of the federal government. It begins "The Congress shall have Power" and then lists eighteen clauses: taxing and spending, borrowing, commerce, naturalization and bankruptcy, money, counterfeiting, post offices, patents and copyrights, lower courts, piracy, war, armies, navy, the militia, the national capital, and finally the power to make all laws "necessary and proper" for carrying out the rest.

Because Congress uses these powers constantly, many were tested early. The earliest Section 8 case we found was decided in 1796. But some powers, like spending, waited well over a century for the Court to say what they meant. This module takes the clauses in the order they appear, tells the story of each first case, and ends each section with where the law stands today. Constitutional text is quoted from the National Archives transcription.

Clause 1: Taxing and spending

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

U.S. Constitution, Article I, Section 8, Clause 1

Taxing: Hylton v. United States (1796)

The earliest Section 8 case at the Supreme Court that we found was a tax case. In Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), the justices upheld a 1794 federal tax on carriages kept for personal use. The question was whether it was a "direct" tax, which must be apportioned among the states by population. The justices, writing separately, said it was an indirect tax, valid without apportionment.

A century later the direct tax question returned. In Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), the Court held that the 1894 federal income tax, as applied to rents and income from real estate, was a direct tax that had not been apportioned. The Sixteenth Amendment, covered in the final module, later allowed income taxes without apportionment.

Today's leading taxing case is National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). Chief Justice John Roberts, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan on this point, upheld the Affordable Care Act's individual mandate penalty as a valid exercise of the taxing power. Roberts wrote: "It is not our job to protect the people from the consequences of their political choices."

Spending: United States v. Butler (1936)

For nearly 150 years the Court avoided deciding what "provide for the common Defence and general Welfare" means. Two readings competed. James Madison read it as a summary of the other listed powers: Congress could spend only to carry out those powers. Alexander Hamilton read it as a separate power to tax and spend for anything that served the general welfare.

The 1933 Agricultural Adjustment Act paid farmers to reduce production, funded by "processing taxes" on processors of farm products. The receivers of Hoosac Mills Corporation, a cotton processor, challenged the tax. In United States v. Butler, 297 U.S. 1, decided January 6, 1936, Justice Owen Roberts wrote for a 6 to 3 Court. He described the two views and said plainly that "This court has noticed the question, but has never found it necessary to decide which is the true construction." Then the Court decided it. Justice Joseph Story, Roberts noted, "in his Commentaries, espouses the Hamiltonian position," and "the reading advocated by Mr. Justice Story is the correct one."

That made Butler the first case to settle the meaning of the spending power, and it settled it broadly. But the Court still struck down the farm program, describing it as "a scheme for purchasing with federal funds submission to federal regulation of a subject reserved to the States." Justice Harlan Fiske Stone dissented, joined by Justices Louis Brandeis and Benjamin Cardozo.

The limit on Butler did not last. In 1937 the Court upheld the Social Security Act's unemployment tax in Steward Machine Co. v. Davis, 301 U.S. 548 and its old-age benefits in Helvering v. Davis, 301 U.S. 619, both by Justice Cardozo. Helvering's syllabus summarizes the rule that still governs: "When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the States."

Clause 2: Borrowing

The borrowing clause ("To borrow Money on the credit of the United States") rarely reaches court on its own. Its leading case is Perry v. United States, 294 U.S. 330, decided February 18, 1935, one of the Gold Clause Cases. A holder of a Liberty Loan bond promising payment in gold coin sued after Congress cancelled gold clauses in 1933. Chief Justice Hughes wrote that Congress could not nullify the gold clauses in the government's own bonds. As the official syllabus states the holding, Congress "cannot use its power to regulate the value of money so as to invalidate the obligations which the Government has theretofore issued." But the bondholder could not show actual loss, so he recovered nothing more. Four justices dissented.

Clause 3: Commerce

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

U.S. Constitution, Article I, Section 8, Clause 3

What came after

For decades after the Civil War the Court drew lines that limited the commerce power. In United States v. E.C. Knight Co., 156 U.S. 1 (1895), Chief Justice Melville Fuller held that the Sherman Antitrust Act could not be used against the American Sugar Refining Company's purchase of Philadelphia refineries. As the official syllabus puts it, sugar refining in Pennsylvania bore "no direct relation to commerce between the States." Justice John Marshall Harlan dissented.

That approach collapsed in the New Deal era. In Wickard v. Filburn, 317 U.S. 111, decided November 9, 1942, an Ohio farmer named Roscoe Filburn was allotted 11.1 acres of wheat under federal quotas but sowed 23 acres. Justice Robert Jackson wrote for a unanimous Court that even local activity "may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."

The first limit in more than half a century came in United States v. Lopez, 514 U.S. 549, decided April 26, 1995. Chief Justice William Rehnquist wrote for a 5 to 4 Court that the Gun-Free School Zones Act, which made it a federal crime to have a gun near a school, was not a regulation of commerce. "We start with first principles," he wrote. "The Constitution creates a Federal Government of enumerated powers." The National Constitution Center notes that this was "the first time that the Court struck down a law passed under Congress's commerce power since the New Deal Revolution of 1937." Justices Stevens, Souter and Breyer filed dissents, with Justice Ginsburg joining Breyer's.

Clause 4: Naturalization and bankruptcy

"To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;"

U.S. Constitution, Article I, Section 8, Clause 4

Naturalization: Chirac v. Chirac (1817)

John Baptiste Chirac, a native of France, took a citizenship oath under a 1779 Maryland law and the next day received land in Maryland. After his death, the case turned on whether his heirs, French subjects, could hold the land or whether it passed to the state. In Chirac v. Chirac, 15 U.S. (2 Wheat.) 259 (1817), Chief Justice Marshall wrote for the Court. The Constitution Annotated cites Chirac as the early authority that "Congress's power over naturalization is an exclusive power" and that "no state has the independent power to constitute a foreign subject a citizen of the United States." It is the earliest Supreme Court case on the clause cited there.

Bankruptcy: Sturges v. Crowninshield (1819)

Crowninshield signed two promissory notes in New York on March 22, 1811. On April 3, 1811, New York passed an insolvency law letting debtors who surrendered their property be discharged from their debts. When Sturges sued on the notes in federal court in Massachusetts, Crowninshield pleaded his discharge under the New York law.

In Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819), Chief Justice Marshall held two things. First, the federal bankruptcy power does not by itself bar states from passing bankruptcy laws when Congress has no conflicting law in force. Second, New York's law, so far as it discharged debts made before it passed, impaired the obligation of contracts and was invalid. Sturges is the earliest Supreme Court case on the bankruptcy clause we found. In Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827), the Court held that a state law applying only to contracts made after its passage does not violate the Constitution.

Clauses 5 and 6: Money and counterfeiting

The Constitution gives Congress power "To coin Money, regulate the Value thereof," but does not mention paper money. During the Civil War, Congress made paper United States notes, "greenbacks," legal tender for all debts.

In Hepburn v. Griswold, 75 U.S. (8 Wall.) 603 (1870), Chief Justice Salmon Chase wrote for the Court. As the syllabus states the holding, making the notes legal tender for debts contracted before the law passed was "unwarranted by the Constitution." The next year, the Legal Tender Cases, 79 U.S. (12 Wall.) 457 (1871), overruled Hepburn by a 5 to 4 vote in an opinion by Justice William Strong. In Juilliard v. Greenman, 110 U.S. 421 (1884), Justice Horace Gray wrote for the Court holding, in the syllabus's words, that Congress may make treasury notes legal tender "in time of peace as well as in time of war." That is still the law.

On counterfeiting, the question was whether a federal power excluded the states. In Fox v. Ohio, 46 U.S. (5 How.) 410 (1847), Justice Peter Daniel wrote for the Court that Ohio could punish a person for passing counterfeit U.S. coins, reasoning that counterfeiting the coin and passing counterfeit money are different offenses. Justice John McLean dissented.

Clause 7: Post offices and post roads

The Constitution Annotated's postal power overview traces an early debate about whether "establish" meant only designating mail routes or also building them. The earliest Supreme Court case it cites is Searight v. Stokes, 44 U.S. (3 How.) 151 (1845), involving tolls on the Cumberland Road. It credits Kohl v. United States (1876), which upheld federal land purchases for a Cincinnati post office and courthouse, with ending that debate.

The Constitution Annotated calls Ex parte Jackson, 96 U.S. 727 (1878) "the pioneer case" on excluding matter from the mail. It was a challenge to a federal ban on mailing lottery circulars. Justice Stephen Field wrote for the Court that "the right to designate what shall be carried necessarily involves the right to determine what shall be excluded." But the Court also held that sealed letters could be opened only under a warrant, like papers in one's own home, an early link between the postal power and the Fourth Amendment.

Clause 8: Copyrights and patents

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

U.S. Constitution, Article I, Section 8, Clause 8

The U.S. Copyright Office calls Wheaton v. Peters the Supreme Court's first copyright case, and it was a fight between two of the Court's own reporters. Henry Wheaton, the Court's third reporter of decisions, had published its opinions with long notes, in expensive volumes. His successor, Richard Peters, published a cheaper condensed edition, and Wheaton sued. In Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834), Justice John McLean wrote for the Court that copyright in published works exists only by federal statute, not by common law, and that no reporter can hold a copyright in the Court's written opinions. Justices Smith Thompson and Henry Baldwin dissented. The U.S. Copyright Office timeline says "The Supreme Court did not decide its first copyright case, Wheaton v. Peters (1834), until over forty years after the 1790 act was established."

The clause also has limits. In the Trade-Mark Cases, 100 U.S. 82 (1879), Justice Samuel Miller wrote for the Court. As the official syllabus summarizes it, a trademark "is neither an invention, a discovery, nor a writing" under this clause, and the federal trademark law was void because it reached all commerce, not only commerce Congress may regulate.

Clauses 11 to 16: War, armies and the militia

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"

U.S. Constitution, Article I, Section 8, Clause 11

Bas v. Tingy (1800): a war without a declaration

From 1798 to 1800 the United States fought an undeclared naval conflict with France, the Quasi War. Congress passed statutes authorizing limited hostilities, including one granting an award for recapturing American vessels from "the enemy." The question in Bas was whether France counted as "the enemy" under that statute when Congress had never declared war.

In Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800), the justices, writing separately, held that France was an enemy within the meaning of the statute. Justice Bushrod Washington described an "imperfect war," hostilities "limited as to places, persons, and things." The Constitution Annotated pairs it with two later Quasi War cases: Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801), in which the Court said that because war powers belong to Congress, "the acts of that body can alone be resorted to as our guides," and Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), in which Chief Justice Marshall held that a presidential order could not authorize a seizure that Congress's statute did not allow. Bas is the earliest of the three and the earliest war powers case we found.

The draft and the militia

The power "To raise and support Armies" was first squarely tested by the World War I draft. In the Selective Draft Law Cases, 245 U.S. 366, decided January 7, 1918, Chief Justice Edward White wrote for the Court upholding conscription under the power to raise armies, read together with the war and necessary and proper powers.

For the militia, the leading early case is Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827), arising from a New York militiaman fined by a court martial for refusing a presidential call into federal service. Justice Story wrote for the Court. As the official syllabus summarizes it, the authority to decide whether the emergency for calling out the militia has arisen "is exclusively vested in the President, and his decision is conclusive upon all other persons."

Clause 18: Necessary and proper

"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."

U.S. Constitution, Article I, Section 8, Clause 18

McCulloch v. Maryland (1819)

In 1816 Congress incorporated the Bank of the United States. In 1818 Maryland imposed a tax on all banks or branches in the state "not chartered by the legislature," which reached the national bank's Baltimore branch. James McCulloch, the branch's cashier, issued notes without paying the tax, and Maryland sued him.

In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), Chief Justice Marshall gave the opinion of a unanimous Court on both questions. First, Congress could charter a bank even though the word "bank" appears nowhere in the Constitution. "In considering this question, then, we must never forget, that it is a constitution we are expounding." The test: "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." Second, Maryland could not tax the bank, because, in Marshall's words, "the power to tax involves the power to destroy."

McCulloch is the foundational case on the Necessary and Proper Clause and remains the standard reference point. The Court relied on its test in Hepburn and the Legal Tender Cases, and modern cases on implied federal powers still begin with it. Lesson 04 and the Tenth Amendment module return to its limits on state power.

Summary of firsts in this module

Clause	First case	Year	What kind of first
Cl. 1, taxing	Hylton v. United States, 3 U.S. 171	1796	Earliest Section 8 case we found; federal tax upheld
Cl. 1, spending (general welfare)	United States v. Butler, 297 U.S. 1	1936	First decision on the meaning of the spending power (Hamiltonian view adopted)
Cl. 2, borrowing	Perry v. United States, 294 U.S. 330	1935	Leading case; Congress may not repudiate its own gold clause bonds
Cl. 3, commerce	Gibbons v. Ogden, 22 U.S. 1	1824	Earliest major Commerce Clause case we found; state monopoly yields to federally licensed boats
Cl. 3, commerce (limit)	United States v. Lopez, 514 U.S. 549	1995	First law held beyond the commerce power since 1937
Cl. 4, naturalization	Chirac v. Chirac, 15 U.S. 259	1817	Earliest Supreme Court case cited for exclusive federal power
Cl. 4, bankruptcy	Sturges v. Crowninshield, 17 U.S. 122	1819	Earliest Supreme Court bankruptcy clause case we found
Cl. 5, coining money	Hepburn v. Griswold, 75 U.S. 603	1870	Paper legal tender held invalid for prior debts (overruled 1871)
Cl. 6, counterfeiting	Fox v. Ohio, 46 U.S. 410	1847	States may also punish passing counterfeit coin
Cl. 7, post offices	Searight v. Stokes, 44 U.S. 151	1845	Earliest Supreme Court postal case cited by the Constitution Annotated
Cl. 7, post offices (exclusion)	Ex parte Jackson, 96 U.S. 727	1878	"Pioneer case" on excluding matter from the mail (Constitution Annotated)
Cl. 8, copyright	Wheaton v. Peters, 33 U.S. 591	1834	First Supreme Court copyright case (U.S. Copyright Office)
Cl. 11, declare war	Bas v. Tingy, 4 U.S. 37	1800	Earliest war powers case we found (limited war without declaration)
Cl. 12, raise armies	Selective Draft Law Cases, 245 U.S. 366	1918	Conscription upheld
Cl. 15, militia	Martin v. Mott, 25 U.S. 19	1827	President's call of the militia held conclusive
Cl. 18, necessary and proper	McCulloch v. Maryland, 17 U.S. 316	1819	Foundational case on implied powers