Enumerated Powers, the Necessary and Proper Clause,  and Prigg v. Pennsylvania [No. 86]
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Enumerated Powers, the Necessary and Proper Clause, and Prigg v. Pennsylvania [No. 86]


Prigg versus Pennsylvania is a case that involved
the constitutionality of the Fugitive Slave Act, which Congress had enacted pursuant to
the Fugitive Slave Clause in Article 4 of the Constitution. The question arose, was the Fugitive Slave
Act within the power of Congress under the Fugitive Slave Clause. What challengers of that law, like Salmon
Chase maintain was that Article 4 did not create any new federal power. The Fugitive Slave Clause is in Section 2
of Article 4 of the original Constitution. Salmon Chase maintained that Section 2 gave
Congress no additional powers to enforce the Fugitive Slave Clause, it simply said that
slaves shall be surrendered up upon demand of the party to whom their service is owed. He contrasted that with Section 1, which did
give Congress an enumerated power to implement the Full Faith and Credit Clause, as well
as Section 3, which gave Congress an enumerated power to enact all needful regulations to
govern the territories. Because Section 2 included no enumerated power,
Chase argued that Congress did not have power to enact the Fugitive Slave Clause. In Prigg versus Pennsylvania, Justice Story
disagreed. Justice Story adopted an extremely broad reading
of Necessary and Proper Clause in which he said that Congress had a power to make laws
that would protect any rights that was acknowledged or recognized by the Constitution. It was in fact, a reading of the clause broader
than even the post-New Deal reading of the Necessary and Proper Clause that we live with
today. What makes Prigg legally objectionable is
the fact that it did not hew to the enumerated powers scheme of the original Constitution
and instead used what you might call a modern reading of the Necessary and Proper Clause
to greatly expand the power of Congress, in this case, to pass a Fugitive Slave Act.

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