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Introduction
The United States
is a government
of enumerated powers. Congress, and the other two branches of the
federal government, can only exercise those powers given in the
Constitution.
The powers of
Congress
are enumerated in several places in the Constitution. The most
important
listing of congressional powers appears in Article I, Section 8 (see
left)
which identifies in seventeen paragraphs many important powers of
Congress.
The last paragraph of Article I, Section 8 grants to Congress the power
"to make all laws which shall be necessary and proper for carrying into
execution the foregoing powers"--the "Necessary and Proper
Clause."
The proper interpretation of the Necessary and Proper Clause was the
subject
of a heated debate between such important figures as Alexander Hamilton
(who argued that the clause should be read broadly to authorize the
exercise
of many implied powers) and Thomas Jefferson (who argued that
"necessary"
really meant necessary). Hamilton's more flexible
interpretation
makes possible a strong central government, whereas Jefferson's
narrower
interpretation strengthens states' rights.

The Bank of the United States in
Philadelphia.
Alexander Hamilton argued that the Constitution's implied powers
authorized
its creation.
The famous
case of McCulloch
vs Maryland considered whether Article I, Section 8 gave Congress
the
power to create a national bank and, if so, whether the state of
Maryland
could tax it. For nine days, Daniel Webster and former
Constitutional
Convention delegate Luther Martin jargued the case before the justices
of the Supreme Court. Chief Justice John Marshall, writing for
the
Court, found the Necessary and Proper Clause gave Congress the
flexibility
to create the bank as an aid to carrying out its enumerated borrowing
and
taxing powers and that Maryland's taxation of the bank violated the
Supremacy
Clause.
Attorneys for McCulloch (Daniel
Webster, left) and
Maryland (Luther Martin, right) in McCulloch (or M'Culloch) vs
Maryland
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U. S. vs
Gettysburg
Elec. Ry. Co. (1896) considered whether Congress had the power to
condemn
a railroad's land in what was to be Gettysburg National Military
Park.
Writing for the Court, Justice Peckham found that the power to condemn
the railroad's land was implied by the powers of Congress to declare
war
and equip armies because creation of the park "tends to quicken and
strenghten"
the motives of the citizen to defend "the institutions of his
country."
COMMERCE POWER
No enumerated
power has justified
more exercises of congressional power than the Article I, Section 8
power
to "regulate commerce among the several states." The first major
challenge to the exercise of congressional power under the Commerce
Clause
came in the 1824 case of Gibbons vs Ogden, when two steamship
operators
with exclusive licenses granted by New York to ferry passengers from
New
York City to Elizabethtown, New Jersey sued to block Gibbons, a new
steamship
operator granted a license to ferry passengers on the same route by
Congress,
from competing against them. Chief Justice Marshall found that
the
Commece Clause granted Congress ample power to issue the license to
Gibbons.
Commerce, wrote Marshall, is more than just the buying and selling of
objects--it
includes all branches of commercial intercourse between states,
including
navigation.
The next
series of cases
illustrate two divergent approaches to analyzing whether an activity is
reachable under the commerce power. In U. S. vs E. C. Knight
the Court concluded that the Congress lacked the power to reach a
monopoly
in the "manufacture" of refined sugar, but could reach a "monopoly of
commerce"
involving sugar. The Knight case illustrates the formal
(or
"categorical") approach to analyzing the reach of the commerce
power.
The formal approach focuses on such questions as whether the regulated
activitity is "in" or "outside" the stream of commerce, whether the
activity
is "local" or "interstate," or whether the effects of the activity on
interstate
commerce are "direct" or "indirect." The contrasting empirical
approach,
illustrated by Houston E. & W. Ry. Co. vs U. S., looks to
the
magnitude of the effect that the regulated activity has on interstate
commerce,
without special regard to how the activity is categorized. In Houston,
the Court upheld a federal agency's regulation of freight rates on
travel
wholly within Texas because the freight transporation within Texas was
found to be substantially affecting interstate commerce.
Hammer vs
Dagenhart
(1918) considered the constitutionality of the Child Labor Act, which
banned
items produced by child labor from interstate commerce. Adopting
the formal approach, the Court saw the Act as unconstitutional attempt
to regulate a purely local matter, workplace conditions. The harm
of child labor, the Court concluded, had nothing to do with interstate
commerce and thus fell outside the reach of congressional power.

Two girls working in Loudon Hosiery Mills
(Tennessee)
in 1910.
N.L.R. B.
vs Jones
(1937) represented an important turning point in the Court's Commerce
Clause
jurisprudence. The year before, in a case called Carter vs
Carter
Coal Co., the Court had invalidated a New Deal program that
attempted
to regulate the wage and hour practices of coal companies on the ground
that such practices were "local" and had only an "indirect" effect on
interstate
commerce. Enraged by the Court's decision in Carter and
other
cases, President Roosevelt proposed "packing the Court" with
sympathetic
justices by increasing its size from nine to fifteen. In N.L.R.
B. vs Jones, Chief Justice Hughes and Justice Roberts side with the
government in voting to uphold an N.L.R.B. action ordering the
reinstatement
of union organizing employees protected by federal law at a
Pennsylvania
steel plant--the "switch in time that saved nine." Over the
objections
of four dissenting justices who called the interstate effects of the
regulated
activity "too indirect," the Court concluded that the steel industry is
an interstate web of activities stretching from the iron mines of
Minnesota
to the steel plants of Pennsylvania and thus the manufacturing of steel
is properly reachable under the Commerce Clause.
U. S. vs
Darby
(1941), in unanimously overruling Hammer vs Dagenhart,
demonstrated
how much the Court had changed its approach to Commerce Clause in a
generation.
Using a "substantial effects" test, the Court upheld the Fair Labor
Standards
Act--an important piece of legislation that effectively set national
minimum
wage and maximum hour laws by prohibiting the interstate shipment of
goods
manufactured in violation of the federal standards.
Once having
established
that congressional exercises of power were valid if shown to regulate
activities
"substantially affecting" interstate commerce, the Court proceeded to
open
up more opportunities for exercise of the commerce power by holding
that
an activity only trivially affecting interstate commerce might
nonetheless
by regulated if all of the regulated activities of various
individuals--taken
cumulatively--had substantial interstate effects. In Wickard
vs
Filburn (1942), for example, the Court upheld a $117 penalty
imposed
on a Ohio farmer for growing wheat on 12 more acres than he was
permitted
to under the Agricultural Adjustment Act. The cumulative effects
test also convinced the Court to uphold provisions of the 1964 Civil
Rights
Act that required the 216-room Heart of Atlanta Motel to rent its rooms
to persons regardless of race (Heart of Atlanta vs U. S.)
and
outlawed racial discrimination at small restaurants such as
Ollie's Bar-B-Q in Birmingham (Katzenbach vs McClung). In
1971, legislation making loansharking a federal crime was upheld on a
similar
basis (Perez vs U. S.) . The Heart of Atlanta, McClung, and
Perez cases led to speculation that perhaps any activity might be
regulated
under a loose application of the cumulative effects test.

Moreton Rolleston Jr., owner of the Heart of
Atlanta
motel
(photo: Wayne Wilson/Leviton-Atlanta)
In 1995,
however, the
Supreme Court--for the first time in more than half a
century--invalidated
a federal law on the ground that it was outside the scope of the
commerce
power. In U. S. vs Lopez the Court, by a 5 to 4 vote,
found
unconstitutional a provision of the Gun-Free School Zone Act that made
it a federal crime to possess a gun (even one that never traveled
across
state lines) within a thousand feet of a school ground. It was
unclear
whether the government lost because the Congress failed to make
adequate
factual findings about the impact of school gun violence on
interstate
commerce or whether the Court was convinced that the interstate impact
of possessing guns near schools had only an insignificant effect on
interstate
commerce. The four dissenters argued that it was sufficient for
the
Congress to show it had a rational basis for finding a significant
effect
on interstate commerce.
In U. S.
vs Morrison
(2000) the Court considered a suit brought by a former student of
Virginia
Poytechnic Institute who alleged she was raped by two university
football
players. The defendant players and university argued that the
Violence
Against Women Act, which allowed victims of gender- motivated violence
to bring federal civil suits for damages, was outside of the scope of
the
commerce power. The Court agreed with the defendants, even though
in this case Congress had made specific findings that gender-motivated
violence deterred interstate travel, diminished national productivity,
and increased medical costs. The Court concluded that upholding
the
Violence Against Women Act would open the door to a federalization of
virtually
all serious crime--as well as family law and other areas of traditional
state regulation. The Court said that Congress must distinguish
between
"what is truly national and what is truly local"--and that its power
under
the Commerce Clause reaches only the former. In a concurring
opinion,
Justice Thomas went even further, urging abandonment of "the
substantial
effects" test.

Christy Brzonkala, the former student at VPI
whose efforts
to receive compensation for an alleged rape were ended by the Supreme
Court
in U. S. vs Morrison.
Angel Raich, allowed to
use marijuana for medical purposes under California's Compassionate Use
Act, sued Attorney General Ashcroft to prevent further federal raids on
her home and garden. (American Bar Journal photo)
In the fall of 2004,
the Supreme Court heard arguments in Ashcroft v Raich.
The case raises the issue of whther federal drug laws prohibiting the
private possession of marijuana preempt state laws that authorize
possession and consumption for medical pruposes with a doctor's
prescription. The United States contends that laws authorizing
medical marijuana in California and 10 other states interfere with
federal drug enforcement. Raich and fellow medical marijuana user
Diane Monson argue that medical marijuana grown and consumed entirely
on private property, or provided by a local medical caregiver, is
not "an article of commerce" within the power of Congress to
regulate. The question the Court asks: "Is this case
distinguishable from the wheat-consumer in Wickard v Filburn?" An
answer will come in 2005. It will be interesting to see how the
conservatives on the Court, who generally support federalism, vote in
this case. Noteworthy, given the position of these southern
states on drug enforcement issues, is the fact that the states of
Alabama, Louisiana, and Mississippi signed an amicus brief supporting
California's position in the case.
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TAXING POWER
Article I,
Section 8 gives
Congress the power to "lay and collect taxes, duties, imports, and
excises."
The Constitution allows Congress to tax in order to "provide for the
common
defense and general welfare."
The Court has
flip-flopped
on the issue of whether Congress has the constitutional power to tax in
order to accomplish regulatory goals that would otherwise be outside of
the scope of its enumerated powers. In Bailey vs Drexel
Furniture
(1922), the Court invalidated a 10% tax on the annual profits of
employers
who knowingly employ child labor. The tax, imposed after an
earlier
attempt to block the interstate transportation and sale of products
produced
by child labor was struck down in Hammer, was seen by the Court
as an unconstitutional attempt to make an end-run around its earlier
decision.
The Court reversed its ban on taxes serving primarily regulatory
(rather
than revenue-producing) goals in Steward Machine (1937), which
upheld
a tax on employers designed to encourage states to enact unemployment
compensation
schemes. In Kahriger (1953), the Court upheld a law
requiring
bookies to register and pay on tax on all wagers--even though the tax
had
the regulatory goal of wiping out bookmaking operations and could not
be
expected to produce significant revenue.
SPENDING POWER
In the 1987 case
of South
Dakota vs Dole, the Supreme Court considered a federal law that
required
the Secretary of Transportation to withhold 5% of a state's federal
highway
dollars if the state allowed persons less than 21 years of age to
purchase
alcoholic beverages. South Dakota, which allowed 18-year-olds to
drink and stood to lose federal funds for highway construction, sued
Secretary
Dole, arguing that the law was not a constitutional exercise of the
power
of Congress to spend--but rather was an attempt to enact a national
drinking
age. In upholding the federal law, the Court announced a four-part test
for evaluating the constitutionality of conditions attached to federal
spending programs: (1) the spending power must be exercised in pursuit
of the general welfare, (2) grant conditions must be clearly stated,
(3)
the conditions must be related to a federal interest in the national
program
or project, and (4) the spending power cannot be used to induce states
to do things that would themselves be unconstitutional. The Court
considered--perhaps unrealistically--the grant condition to be a
financial
"inducement" for South Dakota to enact a higher drinking age rather
than
financial "compulsion" to do so--suggesting the possibility of a
different
result if a higher percentage of funds had been withheld. In
dissent,
Justice O'Connor argued that spending conditions should be found
constitutional
only if they related to how the federal grant dollars were to be spent.
THE PROPERTY CLAUSE POWER
In 1976, a
dispute over 19
wild burros rounded up on federal land and sold by New Mexico's
Livestock
Board reached the Supreme Court (New Mexico vs Kleppe).
The
Department of Interior argued the New Mexico's action violated the Wild
Free-Roaming Horses and Burros Act, while New Mexico countered that the
Act exceeded the power granted to Congress by the Property Clause of
Article
IV, Section 3. New Mexico contended that Congress could regulate
only those state actions on federal land that threaten to damage public
lands. The Court, however, rejected this narrow
interpretation.
Congress has the power to enact "needful" regulations "respecting" the
public lands and--according to the Court---what is a "needful"
regulation
is a decision "entrusted primarily to the judgment of Congress."
The Court concluded the federal government "has a power over its own
property
analogous to the police power" of the states. The Court did "not
think it appropriate [in Kleppe]...to determine the extent to
which
the Property Clause empowers Congress to protect animals on private
lands."
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Key Constitutional Grants
of Powers to Congress
Article I, Section. 8.
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;
To borrow Money on the credit of the United
States;
To regulate Commerce with foreign Nations, and
among the several
States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization,
and uniform Laws
on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of
foreign Coin,
and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting
the Securities
and current Coin of the United States;
To establish Post Offices and post Roads;
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;
To constitute Tribunals inferior to the supreme
Court;
To define and punish Piracies and Felonies
committed on the high
Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and
Reprisal, and make
Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation
of Money to
that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of
the land and
naval Forces;
To provide for calling forth the Militia to
execute the Laws of
the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and
disciplining, the Militia,
and for governing such Part of them as may be employed in the Service
of
the United States, reserving to the States respectively, the
Appointment
of the Officers, and the Authority of training the Militia according to
the discipline prescribed by Congress;
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, dock-Yards,
and other
needful
Buildings;--And
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.
Article IV, Section 3
New States may be admitted by the Congress into this Union; but
no
new State shall be formed or erected within the Jurisdiction of any
other
State; nor any State be formed by the Junction of two or more States,
or
Parts of States, without the Consent of the Legislatures of the States
concerned as well as of the Congress.
The Congress shall have Power to dispose of and
make all needful
Rules and Regulations respecting the Territory or other Property
belonging
to the United States; and nothing in this Constitution shall be so
construed
as to Prejudice any Claims of the United States, or of any particular
State.
Amendment XVI
(Ratified February 3, 1913.)
The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several
States,
and without regard to any census or enumeration. |

President Lyndon Johnson signing the 1964 Civil
Rights
Act
Questions
1. The alternative to a government of enumerated powers is, of
course,
a government of unenumerated powers. The Constitution might have
said "Congress shall have all powers not specifically prohibited
elsewhere
in this Constitution." What are the advantages and disadvantages
of each system?
2. It would be silly to say, for example, the "power to establish
post offices" did not include the power to print postage stamps or pay
mail carriers. But does it also include the power to advertise
the
joys of stamp collecting on television? How broadly or narrowly
should
the enumerated powers be read? Should the "Necessary and Proper
Clause"
be interpreted as authorizing actions rationally related to one of the
listed powers, or only actions "necessary" to carrying out a listed
power?
3. Thomas Jefferson had serious doubts as to whether the
Constitution
gave him the power to acquire land from France through the Louisiana
Purchase,
but he went ahead with the deal anyway. Was the Louisiana
Purchase
constitutional? What might be the constitutional source for the
power
to acquire lands?
4. In McCulloch vs Maryland, Chief Justice Marshall notes
that the Constitution is not a statute, and suggests that it should be
read more liberally and flexibly than a statute so that it might serve
the ages. Do you find Marshall's argument about constitutional
interpretation
persuasive?
5. Thomas Jefferson was none too pleased with the decision in McCulloch.
Jefferson said, "The judiciary of the United States is a subtle core of
sappers and miners constantly working underground to undermine the
foundations
of our confederated fabric." What do you think about Jefferson's
characterization?
6. In Gettysburg, the Court says that to justify an
exercise
of congressional power, "any number of powers may be grouped together,
and an inference from them all may be drawn that the power claimed has
been conferred." This is the so-called "implied powers
doctrine."
Is the Court now moving in the direction of abandoning this doctrine
and
insisting upon more specific textual support to sustain exercises of
federal
power?
COMMERCE CLAUSE QUESTIONS
7. What is "commerce"? Is it just the buying and selling of
goods, or should it be interpreted to include, as Chief Justice
Marshall
says in Gibbons, all the branches of commercial intercourse,
including
the manufacture and transportation of goods?
8. The Constitution gives Congress the power to regulate commerce
"among" the several states. Does that mean "between" the states,
or could it also mean "among the people"--that is, even within
a
state?
9. What would have been the economic future of the United States
if Gibbons had gone the other way?
10. Which of the two basic approaches to Commerce Clause analysis
is better, the "empirical test" (e.g., "substantial effects") or the
categorical
approach that seeks to label effects as "direct" or "indirect" or
activities
as "local" or "national." What are the advantages and
disadvantages
of each approach?
11. Does the power to "regulate" commerce include the power to
ban outright certain articles of commerce--such as lottery tickets,
firecrackers,
hand grenades, or marijuana? 12. Is taking a woman across
state
lines for immoral purposes "commerce"? (The Court thought so in a
decision upholding the constitutionality of the Mann Act.)
13. Should the Court examine the motive of Congress in enacting
legislation under its commerce power, or just analyze the connection of
the regulation to interstate effects? In Hammer vs Dagenhart,
the Court was influenced by its conclusion that Congress really
legislated
because it disapproved of child labor, rather than out of any genuine
concern
for how child labor was affecting the national economy or the dangers
posed
by articles produced by child labor. Should the motive of
Congress
been a factor?
14. N.L.R.B. vs Jones, along with U. S. vs Lopez
years later, is generally considered one of the two key turning points
in Commerce Clause jurisprudence. What makes it so?
15. Does the "cumulative effects" approach of Wickard represent
a major expansion of the "substantial effects" test as employed
previously?
16. After McClung and Heart of Atlanta Motel,
could
you imagine any eating establishment or motel that would be outside
the reach of Congress's power under the Commerce Clause to enact
civil rights laws prohibiting discrimination against patrons or guests?
17. Lopez and Morrison raise serious questions
about the ability of Congress to enact laws providing federal
punishment
or federal remedies for conduct traditionally regulated under state
criminal
codes. Which of the following are likely to be upheld?: (1) a law
making "carjacking" a federal crime? (2) a law making "drive-by
shootings"
a federal crime? (3) a law making it a federal crime to carry out
any action designed to terrorize? (4) a law making child
molestation
a federal crime? (5) a law making child pornography a federal
crime?
18. How does Congress distinguish, as Morrison requires
it to do, between "what is truly national and what is truly local."?
TAXING & SPENDING POWERS-- QUESTIONS
1. Does Congress have the power to tax for a purely regulatory,
non-revenue
raising, goal? Could Congress require all prostitutes to register
and pay a tax if it could not make prostitution a federal crime
directly?
2. Do the Court's recent Commerce Clause decisions give reason
to think the Court will also tighten up the Congress's use of its
taxing
and spending powers?
3. In South Dakota vs Dole, is it clear that South
Dakota's
lower drinking age jeopardized federal interests in the national
highway
program? If so, how substantially?
4. Could Congress condition the receiving of federal dollars
to fight crime on a state's having enacted the death penalty?
How--if
at all--would such a condition differ from the condition upheld in South
Dakota vs Dole?
5. What result in South Dakota vs Dole if South Dakota
stood to lose all federal highway money if it didn't raise its
drinking
age? What if it stood to lose 30%?
THE PROPERTY CLAUSE-- QUESTIONS
1. Does the Property Clause give the Congress the power
to
protect wildlife on private land that spends most of its time
on
federal land (on national park, national wildlife refuge, national
forest,
or BLM land)? Does the Property Clause empower the Congress to
protect
a grizzly bear or wolf wanders from federal land onto the private land
of a rancher?--or is the rancher free to fire away, state law
permitting?
2. Does the Property Clause empower Congress to regulate private
activities on private land that adversely effect public lands, such as
air pollution from a nearby plant, bright lights from neon advertising,
or noise from a racetrack?
3. Does Article IV, Section 3 give Congress the power to regulate
any behavior of residents of U. S. Territories that it chooses to,
provided
no other provision of the Constitution is offended? For example,
could the Violence Against Women Act provision invalidated in Morrison
be enforceable in
U. S. Territories (such as Guam or Puerto Rico), even though it can't
be in the fifty states?
THE COPYRIGHT POWER
On February 19,
2002, the
Supreme Court granted certorari in a case (Eldred v Ashcroft)
which
provides the Court its first opportunity to interpret the power of
Congress
under Article I to extend copyright protection to authors "for limited
times." Eldred operates a Web site that offered for sale works
for
which copyright protection had expired (or "fallen into the public
domain").
He challenges the constitutionality of the Copyright Term Extension Act
of 1998--sometimes called the "Mickey Mouse Protection Act" because
Disney
had lobbied hard for extension of its copyright protection for Mickey
Mouse,
which was nearing the end of its 75-year term of protection under
existing
copyright law. Simply put, the argument of Eldred and his many
supporters
(including librarians and academics who argue that creativity will
benefit
from allowing use of expired works) is that "limited times" doesn't
mean
"forever"--and that 75 years of protection is more than enough time to
provide an adequate financial incentive for authors. (Eldred
notes
that Congress's first copyright act offered only seventeen
years
of protection.)
In 2003, by a
vote of
7 to 2, the Court ruled in Eldred that Congress did not exceed
its
power under the Copyright Clause.
The power to
protect original works
of authorship:
Eldred vs
Reno (2001)(D.C.
Circuit) and other legal documents are accessible from: Harvard's
Open Law

Eric Eldred, plaintiff in suit
challenging the constitutionality
of the 1998 Sonny Bono Copyright Term Extension Act
(photo: ABA Journal)
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The signing of the Louisiana Purchase
treaty
Thomas Jefferson read the powers of the Constitution
narrowly.
As Secretary of State under President Washington, Jefferson argued,
unsuccessfully,
that Constitution prohibited the establishment of a national bank or
federal
assumption of state debts. Debating Alexander Hamilton, Jefferson
warned, "To take a single step beyond the boundaries thus specially
drawn
aroung the powers of Congress is to take possession of a boundless
field
of power, no longer susceptible of any definition."
As President a decade later, Jefferson worried
whether the Constitution
provided the power to annex new territory--specifically, the Territory
of Louisiana, which France offered to the United States for
purchase.
Writing to a friend at the time, Jefferson expressed doubts about
whether
the Constitution enabled him to acquire the extensive new lands
streching
across the vast middle of the continent. In the end, however, the
Louisiana Purchase was too great an opportunity to pass up.
Jefferson's
view became somewhat more Hamiltonian: he concluded that the
Constitution
implicitly allowed the United States to acquire territory and gave the
Congress to admit the territory as a new state, annex the territory to
an existing state, or to regulate it as a territory.
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