“The legislative cannot assume to itself a power to rule by extemporary arbitrary decrees, but is bound to dispense justice by declared laws, and known authorized judges.” 

~ John Locke, Second Treatise of Government (1689)  

Locke’s warning goes to the heart of enumeration. By prescribing powers in clear, bounded terms, the framers sought to ensure that Congress would act through declared authority rather than arbitrary reach. Article I, Section 8 stands as their attempt to transform liberty from an abstract principle into an operational safeguard – that is, authority granted but only within a cage of purpose. 

Section 8 is the great catalog of congressional authority – the careful enumeration of powers that the framers believed essential to national strength, unity, and prudence. Each clause could warrant its own study and they are listed below for completeness, but for our purposes we will examine only three representative powers:  

1. the authority to tax and regulate commerce with foreign nations,  
2. the authority to declare war, and  
3. the authority to make all laws “necessary and proper” for carrying enumerated powers into effect.  

These examples allow us to see how the balance envisioned by the framers has shifted over time – not only through executive encroachment, but also through congressional expansion or voluntary surrender. In Federalist No. 51, Madison wrote that each branch of government would “jealously guard its powers” as a natural counterweight to the others. Yet history shows that the actual human behavior has been more complex: convenience, political expediency, and moral purpose have all at one time or another led Congress either to stretch its reach or to cede it, thereby altering the balance of the very powers enumerated here. 

The framers were not naïve about where the risks of imbalance might arise. They had just fought a war to break away from a monarchy, so they were deeply wary of executive branch concentration of power whose unity and energy made it prone to overreach, particularly in war and foreign affairs. Indeed, Hamilton in Federalist No. 69 goes out of his way to contrast the American President’s limited role with the sweeping prerogatives of the British King, especially in war, treaties, and commerce. The executive was deliberately circumscribed, and most of the levers of national policy (spending, war declarations, commerce, taxation) were placed in the legislature. 

But they also feared the legislature. Madison warned in Federalist No. 48 and No. 51 that the legislature is the branch “most to be feared” in a republic because it holds the purse and the law-making power. He called it “the impetuous vortex” – the branch most capable of masking its encroachments and swallowing up authority under the guise of representing the people. To mitigate the dangers of both the executive and legislative, they vested the core national powers of money, commerce, and war in Congress while dividing that body into two houses, subject to presidential veto and judicial review. Thus, Article I, Section 8 reflects a double anxiety: the need to deny dangerous prerogatives to the executive while also restraining the legislature from aggrandizing itself. This tension makes the drift we will examine in three representative powers all the more telling, for it reveals how human nature has pulled the system in directions both anticipated and paradoxical. 

Text of Article I, Section 8
What follows is the entire text of Section 8. Our treatment in this installment will delve into those four clauses indicated with an asterisk*.  

Clause 1*: “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;” 

Clause 2: “To borrow Money on the credit of the United States;” 

Clause 3*: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” 

Clause 4: “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;” 

Clause 5: “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;” 

Clause 6: “To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;” 

Clause 7: “To establish Post Offices and post Roads;” 

Clause 8: “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;” 

Clause 9: “To constitute Tribunals inferior to the supreme Court;” 

Clause 10: “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;” 

Clause 11*: “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;” 

Clause 12: “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;” 

Clause 13: “To provide and maintain a Navy;” 

Clause 14: “To make Rules for the Government and Regulation of the land and naval Forces;” 

Clause 15: “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” 

Clause 16: “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;” 

Clause 17: “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;” 

Clause 18*: “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.” 

Behavioral Analysis of Select Powers
Clause 1 + Clause 3 (Taxes/Duties & Commerce) – surrender through statutory delegation. 

Clause 1:
“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;” 

Clause 3:
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” 

Behavioral Rationale (Framers’ View)
In The Federalist No. 11, Hamilton stressed the need for a unified commercial front in foreign trade. Under the Articles of Confederation, each state set its own trade terms, undercutting national leverage and creating rivalries. In No. 22, he called the absence of a national commerce power “one of the most palpable defects” of the old system. 

The pairing of revenue power (Clause 1) with regulatory power (Clause 3) was intentional: 

• Revenue temptation. Customs duties and imposts were the easiest taxes to collect in the 18th century, and also the least visible to the average citizen. 
• Protectionist bias. Tariffs could be used not just for revenue but to favor domestic industries, inviting political favoritism. 
• Foreign leverage. Trade restrictions and duties could be wielded for national advantage or, if poorly managed, for personal or sectional gain. 
• Guardrail logic. By vesting both in Congress, the framers ensured such powers would be exercised collectively and deliberatively, not at the whim of a single executive who might be swayed by expediency, foreign pressure, or personal ambition. 

Hamilton’s underlying behavioral insight: concentrating control over both trade rules and revenue streams in one person invites abuse; dispersing that power among many reduces the risk of impulsive or self-serving decisions. 

Encroachment Snapshot
In modern practice, the Executive has absorbed much of the day-to-day power over tariffs and trade regulation through delegated statutes and broad interpretations of presidential authority: 

• Revenue Side (Clause 1). Under laws like the Trade Expansion Act of 1962 (Section 232), presidents can impose tariffs unilaterally on “national security” grounds. In 2018, this was used to levy steel and aluminum tariffs worldwide –  a revenue and policy move without new Congressional approval. 
• Regulatory Side (Clause 3). Through trade agreements, sanctions, and embargoes, the Executive now effectively sets large portions of U.S. trade policy. Presidential proclamations can adjust tariffs, quotas, and licensing requirements in response to geopolitical developments. 

While Congress retains the formal constitutional authority, these delegations have created a reality where the Executive often acts first and Congress responds later, if at all. This is precisely the pattern the framers sought to prevent – the erosion of deliberative checks in favor of swift, concentrated action, which they viewed as fertile ground for error, favoritism, and overreach. 

Modern Drift Note: Surrender, Not Theft

To a modern reader, Clauses 1 and 3 clearly place these powers in Congress’s hands. The framers assumed Congress would jealously guard them. Yet the historical record shows that much of the shift to the Executive came not from presidential seizure, but from congressional delegation. 

• The Trade Expansion Act of 1962 (Section 232) was sold as a tool to help the President negotiate reciprocal tariff reductions during multilateral talks, avoiding the bottleneck of securing separate congressional approval for each change. Congressional debates at the time focused far more on the economic impact to domestic industries than on the constitutional implications of relinquishing control.  
• A decade later, Congress extended that pattern in the Trade Act of 1974, whose Section 301 authorized the President – through the U.S. Trade Representative – to impose retaliatory tariffs or withdraw concessions against nations engaged in “unfair” practices. What had begun as a delegation to ease liberalization evolved into a delegation to wage trade war, all without new legislation for each action. 

The Madisonian “ambition counteracting ambition” expected by Federalist No. 51 was largely absent. This reflected a mid-20th-century behavioral shift: trust in the Executive – perhaps bolstered by Cold War urgency, globalization’s complexity, and a belief in unified national representation abroad – often outweighed the instinct to guard institutional prerogatives.

From a behavioral reading, this is an inversion of the framers’ expectation: the erosion of congressional authority over trade and revenue came not through conflict, but through voluntary reallocation, revealing that human institutions may surrender safeguards not out of neglect, but out of perceived convenience or speed. 

Behavioral Analysis of Select Powers
Clause 11 (Declare War) – surrender through political convenience and avoidance of hard votes. 

Clause 11:
“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;” 

Behavioral Rationale (Framers’ View) 
In Federalist No. 69 and No. 74, Hamilton draws a sharp line between the President’s role as Commander-in-Chief and the British monarch’s broad war-making power. The framers deliberately placed the authority to declare war in Congress to: 

• Restrain impulsivity under threat. Executives, having direct control of armed forces, might be tempted to act precipitously. 
• Prevent personal aggrandizement. Military victories could be used to consolidate political power or secure re-election. 
• Diffuse decision-making. War profoundly affects the entire nation; dispersing the decision among many representatives reduces the likelihood of rash or self-interested action. 

Underlying this design is the belief that deliberation dampens the heat of the moment – a principle rooted in the same wariness of concentrated authority seen in other Section 8 powers. 

Encroachment Snapshot 
Since World War II, no U.S. conflict has been initiated with a formal congressional declaration of war, yet the nation has fought major wars – Korea, Vietnam, Iraq (2003), Afghanistan – largely under presidential authority, often with only broad or retroactive congressional authorizations. 

The War Powers Resolution of 1973 attempted to reclaim congressional oversight by requiring notification within 48 hours of troop deployment and limiting unauthorized military action to 60 days. But presidents of both parties have regarded it as unconstitutional¹ and routinely circumvented or ignored it. 

This shift has produced a de facto reality in which the Executive can initiate and sustain significant military action without the explicit, contemporaneous consent the framers required. 

Modern Drift Note: The Surrender, Not the Theft 
A casual reader might assume that post-WWII war-making is the result of presidential overreach alone. But much of the shift reflects Congress’s own reluctance to assert its war power in the face of political, diplomatic, and military pressures: 

• During the Cold War, the speed of nuclear-era decision-making, the need for secrecy, and the desire to project unity abroad made many in Congress hesitant to insert themselves into the initiation of hostilities. 
• The Gulf of Tonkin Resolution (1964) granted President Johnson sweeping discretion to respond militarily in Southeast Asia – a blank check passed in the heat of crisis, not after deliberation. 
• Even after the Vietnam experience, Congress has often preferred political cover over constitutional principle, allowing presidents to act while avoiding a public up-or-down vote on war. 

From a behavioral reading, this pattern mirrors the trade and commerce drift: the erosion of legislative authority came not just from executive push, but from legislative relinquishment – a voluntary surrender driven by convenience, perceived necessity, or avoidance of political risk.

¹Presidents of both parties have consistently regarded the War Powers Resolution of 1973 as unconstitutional. Their argument rests on two points: (1) as Commander-in-Chief under Article II, the President holds inherent authority to use military force without prior congressional authorization, at least in emergencies or limited hostilities; and (2) Congress cannot alter this constitutional allocation of power by statute – only by amendment. For that reason, presidents file reports to Congress “consistent with” the Resolution but never “pursuant to” it, signaling they reject its binding authority. Courts have largely avoided deciding the issue, dismissing challenges as political questions. Thus, while the Resolution remains law on paper, it has never been accepted in practice as a restraint on the Executive.

Behavioral Analysis of Select Powers
Clause 18 (Necessary and Proper) –surrender through broad delegation and Executive Order practice. 

Clause 18:
“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;” 

Behavioral Rationale (Framers’ View)
In Federalist No. 33 and No. 44, Hamilton and Madison defend this clause against critics who feared it would give Congress unlimited power. Hamilton calls it a “means to an end” – not an independent grant of authority, but a way to ensure Congress can carry its enumerated powers into practical effect. 

The framers saw this clause as: 

• A safeguard against paralysis. Without it, Congress could be stymied by claims that a particular law wasn’t spelled out word-for-word in the Constitution. 
• A hedge against literalism. Recognizing that human affairs are fluid, they wanted Congress to adapt methods to meet changing circumstances while staying tethered to enumerated powers. 
• A check on unilateral action. By making “necessary and proper” legislation the work of Congress, the framers reinforced that execution of powers should follow collective authorization, not individual decree. 

Underlying behavioral insight: Ambiguity invites expansion, so tethering the clause to enumerated powers and to a multi-member legislature was meant to temper the natural tendency of power to grow in the hands of its holder. 

Encroachment Snapshot: Executive Drift
In modern practice, the Necessary and Proper Clause has been the basis for vast congressional action – from creating federal agencies to regulating interstate infrastructure – but also the stage on which the Executive has acted in quasi-legislative ways, often without new congressional authorization. 

The Executive Order process, while not itself a product of the Necessary and Proper Clause, sometimes functions in parallel to it: 

• Presidents issue orders to direct the operations of the executive branch, but in doing so they sometimes create substantive policy frameworks that Congress has not specifically legislated. 
• In areas where Congress has given broad statutory delegations – such as environmental regulation, emergency preparedness, or national security – executive orders can effectively define the scope and details of the law in practice. 

For the modern reader, this looks much like the Executive using a functional necessary-and-proper power of its own, even though the Constitution gives it to Congress. 

Congressional Expansion: The Other Side of the Story
The elasticity of the Necessary and Proper Clause has also enabled Congress itself to push the boundaries of federal authority – sometimes in ways the framers likely never imagined, and sometimes for enduringly important purposes: 

• McCulloch v. Maryland (1819) established that Congress could create a national bank as a “means” to carry out its enumerated powers. This set a precedent for expansive readings that allowed Congress to create entirely new instruments of governance. 
• Civil Rights Act of 1964 (public accommodations provisions) used the Commerce Clause reinforced by Necessary and Proper logic to extend federal authority into businesses and facilities engaged in interstate commerce. This “creep” of federal reach into state and private domains served a moral and national good – dismantling systemic racial segregation. 
• Affordable Care Act (2010) saw portions defended as “necessary and proper” to make the broader health insurance regulatory scheme function. This was a visible assertion of congressional power to structure nationwide economic arrangements. 

These examples remind us that the breadth of the Necessary and Proper Clause can be a double-edged sword: it can facilitate moral progress and national cohesion, but it can also accumulate power in ways that weaken the intended balance among the branches if not deliberately stewarded. 

Modern Drift Note: The Quiet Parallel Legislature
The framers gave the “necessary and proper” power to Congress precisely because its open-ended nature made it prone to abuse – they wanted such elasticity tempered by the deliberation of the many. 

Yet over the past century, two forces have enabled the Executive to use delegated or implied authority in a way that parallels Congress’s Necessary and Proper power: 

1. Broad statutory delegations. Laws that hand the Executive sweeping discretion to “carry out the purposes” of an act effectively let presidents and agencies decide what is “necessary” and “proper.” 
2. Executive Orders and agency rulemaking. While legally rooted in Article II powers or in statutory authority, these processes allow the Executive to set rules, obligations, and policies that can have the same practical force as laws. 

Debates in Congress over these delegations rarely center on the loss of legislative primacy – more often, they revolve around the policy content of what’s being delegated. As with trade powers and war powers, the slow erosion here is often a surrender, not a theft – a willingness to let the Executive “fill in the blanks” in order to move quickly, avoid political fights, or pass politically sensitive responsibility onto another branch. 

From a behavioral perspective, this is exactly the risk the framers anticipated: where the scope is broad, human nature will press to the limits – and without active, consistent legislative stewardship, that scope will expand in the hands of whoever holds it. 

Conclusion: Lessons for Corporate Governance
Article I, Section 8 reveals both the brilliance and the fragility of governance by enumeration. The framers sought to guard against the natural tendencies of power’s hunger to expand, its temptation to avoid accountability, and its tendency to seek ease and expediency over deliberation. Congress carefully parceled authority into a defined set of purposes. Yet even when the boundaries were drawn clearly and in black letter, history shows how institutions themselves surrendered their prerogatives: Congress delegated tariff-setting, sidestepped declarations of war, and allowed executive rulemaking to mimic legislation. The lesson is sobering. A carefully written charter cannot by itself prevent drift. The charter must also be accompanied by vigilance, stewardship, courage, and the willingness to exercise or defend authority. 

The same holds in corporate governance. Boards are often given a “catalog of powers” in bylaws or statutes: to hire and remove the CEO, to approve strategy, to oversee risk, to authorize major transactions. Yet the effectiveness of these powers depends not only on their formal allocation but on whether directors actually use them. Time and again, boards have delegated too much to management, avoided difficult discourse, questions, or surrendered their oversight through passivity or misplaced trust. Just as Congress has sometimes allowed convenience or expedience to outweigh constitutional stewardship, boards may allow collegiality, deference, or the press and pace of business exigencies to outweigh their duty of deliberate governance. 

Unity vs. Consensus: A Boardroom Parallel
In our board work we often hear “consensus” as an objective put forth by a board. They are consensus-seeking in their decision-making. Yuval Levin in his 2024 book American Covenant: How the Constitution Unified Our Nation – and Could Again reminds us that one of the Constitution’s great purposes was to forge unity – not uniformity. Unity is not agreement on every matter but rather the resolve to remain bound together in the face of disagreement and to keep working within a shared framework even when convictions diverge. 

This distinction has sharp resonance in corporate governance. Too often boards seem to equate unity with consensus, treating unanimity as a marker of effectiveness. But consensus can be an illusion: it may signal conformity, conflict avoidance, or the silencing of dissent. Unity, by contrast, is a higher and harder goal. It allows for open disagreement, vigorous debate, and even recorded dissent, but then insists that once a decision is made, directors act together in upholding it. 

Just as the framers believed a diverse Congress, divided into two houses, constrained by checks, animated by debate could still serve the unity of the republic, so too a board’s strength lies not in erasing differences but in channeling them toward the corporation’s enduring purpose. 

The question, then, is whether unity itself should be considered a just objective for boards. Not unity of opinion, but unity of duty: a shared commitment to the company’s long-term health, to stewardship of its powers, and to carrying differences honestly yet constructively. In this sense, unity – rightly understood – becomes the behavioral anchor that keeps a board from either surrendering its responsibilities to management or fracturing under the weight of disagreement.