Kara Sears
Common law is a term often used in contrast to Roman-derived civil law, with the two systems employing fundamentally different reasoning and processes. Common law jurisdictions require several stages of research and analysis to determine what the law is in a given situation. In a common law jurisdiction, the decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. Common law is dynamic and is capable of being developed and changed by judges. Statutes are laws that are created by legislative bodies, and in common law jurisdictions, statutes are often used to identify a legal wrong, leaving the remedy to be supplied by the common law. Implied powers, on the other hand, refer to the authority granted to a government to perform its constitutionally prescribed duties, even if those powers are not specifically enumerated in the constitution. The concept of implied powers is not new, and is often justified by the 'elastic clause' in a constitution, which grants the power to pass any laws considered necessary and proper.
| Characteristics | Values |
|---|---|
| Common law | A primary source of law for several hundred years before legislative powers were acquired to create statutory law |
| Common law | Is dynamic and capable of being developed and changed by judges |
| Common law | Is based on precedent decisions |
| Common law | Is often used as a contrast to Roman-derived "civil law" |
| Common law | Is used to supply a remedy when statutes identify a legal wrong |
| Common law | Is used to determine "what the law is" in a given situation |
| Common law | Is used to determine the limits of executive power |
| Implied powers | Are granted to Congress and the federal government |
| Implied powers | Are not specifically enumerated in the Constitution |
| Implied powers | Are considered necessary to carry out the duties of the government |
| Implied powers | Are derived from the "Elastic Clause" in the Constitution |
| Implied powers | Are often controversial and hotly debated |
| Implied powers | Are used to pass laws on gun control, minimum wage, and income tax |
| Implied powers | Are used to enact the military draft and eliminate the penny |
| Implied powers | Are interpreted by the Supreme Court, which shapes federalism and the balance of power between state and federal authorities |
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What You'll Learn
Common law and statutory interpretation
Common law is a system of law that has been developed by judges through decisions in individual cases. In common law jurisdictions, such as England, Wales, and Northern Ireland, determining "what the law is" in a given situation involves several stages of research and analysis. This includes ascertaining the facts, locating relevant statutes and cases, and extracting principles, analogies, and statements by various courts. Common law is often contrasted with Roman-derived "civil law", which has fundamentally different processes and forms of reasoning.
Statutory interpretation is the process by which courts determine the meaning of a statutory provision to apply it to a specific situation. In England, the absence of a comprehensive code of legislation historically left it to the courts to develop the common law. As a result, judicial interpretations of statutes became binding, and a consistent framework for statutory interpretation was introduced. The principal aim of statutory interpretation is to fulfil the "intention of Parliament", and English courts have developed rules such as the mischief rule, the literal rule, and the golden rule to assist in this process.
The interpretation of statutes may also be influenced by international treaties and the European Union. For example, in the United Kingdom, statutory provisions that contravene EU law are considered void, upholding the principle that EU law is supreme. Similarly, statutory interpretations must uphold international treaties to which the interpreting country is a party. In the case of the European Union, recitals in Union legislation must specify the reasons for adopting operative provisions, and courts interpret these recitals as granting them a role in statutory interpretation.
The concept of implied powers in the US Constitution grants Congress the ability to pass laws considered "necessary and proper" for effectively exercising its "expressed" or "enumerated" powers." These implied powers allow Congress to address unforeseeable situations and issues beyond the 27 expressed powers listed in Article I, Section 8. Examples of the use of implied powers include the passing of gun control laws, the Federal Minimum Wage law, and the Revenue Act of 1861, which created the nation's first income tax law.
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Implied powers and the US Constitution
The United States government is a government of limited powers, possessing only those powers specifically granted by the Constitution. However, the US Constitution also includes implied powers, which are powers that, although not directly stated in the Constitution, are indirectly given based on expressed powers.
The implied powers of the US government were first invoked by Alexander Hamilton when he was tasked by George Washington to defend the constitutionality of the First Bank of the United States. Hamilton argued that the sovereign duties of a government implied the right to use means adequate to its ends. He further argued that the "general welfare clause" and the "necessary and proper clause" gave elasticity to the Constitution. Hamilton's argument was accepted, and Washington signed the bank bill into law.
Another instance of the usage of implied powers was during the Louisiana Purchase in 1803. James Monroe was sent by Thomas Jefferson to France to negotiate the purchase of the port of New Orleans and parts of Florida, with a spending cap of $10 million. However, an agreement was reached to purchase the entirety of continental French territory for $15 million. Although it was not clear whether Jefferson had the legal authority to negotiate the price without the approval of Congress, the notion of implied powers was offered and accepted as justification for finishing the deal.
Implied powers have also been used by Congress to justify passing gun control laws, which may seem to be at odds with the Second Amendment right to "keep and bear arms". Congress has cited its expressed power to regulate interstate commerce as justification for these laws.
The implied powers of Congress are derived from the Constitution's "Elastic Clause", which grants Congress the power to pass any laws considered "necessary and proper" for effectively exercising its "enumerated" powers. However, what is considered "necessary and proper" is subjective and open to interpretation, leading to controversy and debate over the use of implied powers.
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Judicial interpretation of implied powers
Implied powers refer to the authority granted to Congress and the federal government that extends beyond the explicitly listed powers in the U.S. Constitution. The interpretation of these implied powers is crucial in shaping federalism and the balance of power between state and federal authorities. The Supreme Court plays a pivotal role in interpreting these implied powers, and its rulings have far-reaching implications.
One landmark case that exemplifies judicial interpretation of implied powers is McCulloch v. Maryland in 1819. In this case, the Supreme Court upheld the constitutionality of the federal government's establishment of a national bank in Baltimore, Maryland. Chief Justice John Marshall, drawing on Hamilton's arguments, asserted that the Constitution grants Congress certain implied powers beyond those explicitly stated. This decision set a precedent for interpreting the Necessary and Proper Clause of the Constitution, which grants Congress implied powers necessary and proper for executing its enumerated powers.
Another illustration of judicial interpretation of implied powers is seen in the federal minimum wage law of 1938. Congress justified this legislation through a broad interpretation of the Commerce Clause, which grants Congress the power to regulate interstate commerce. This interpretation allowed Congress to pass the first federal minimum wage law, extending its authority into economic policy.
The interpretation of implied powers has also been contentious, particularly in the context of gun control laws. Congress has cited its implied powers under the Commerce Clause to pass laws limiting the sale and possession of firearms. While some view this as a positive use of federal power, others argue that it infringes on Second Amendment rights and civil liberties. The subjective nature of interpreting what is "necessary and proper" has led to ongoing debates about the scope and legitimacy of implied powers.
In summary, the judicial interpretation of implied powers has had a significant impact on federalism and the balance of power between state and federal authorities. Landmark cases like McCulloch v. Maryland have shaped the understanding of implied powers, and subsequent decisions have demonstrated the evolving nature of these powers. While implied powers can be seen as a way to adapt to unforeseeable situations, they can also be controversial, especially when they are used to justify an expansion of federal power beyond what is explicitly granted in the Constitution.
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Common law and reception statutes
Common law is a type of law that is developed by judges through decisions made in court cases and is based on judicial precedent. It is a system of law that has been developed over hundreds of years and is the primary source of law in several jurisdictions. Common law can be contrasted with civil law, which is derived from Roman law and has fundamentally different processes and forms of reasoning.
In common law jurisdictions, determining "what the law is" in a given situation involves several stages of research and analysis. This includes ascertaining the facts, locating relevant statutes and cases, extracting principles, analogies, and statements by courts, and applying the law to the facts. The decisions of a court are binding only in a particular jurisdiction, and some courts have more power than others even within a given jurisdiction. Additionally, older cases are overruled by new cases and only survive if they do not conflict with newer cases.
A reception statute is a statutory law adopted by a former British colony upon becoming independent. Through this statute, the new nation receives or adopts the pre-independence English common law and, in some cases, statute law, unless explicitly rejected by the new nation's legislative body or constitution. The principle behind reception statutes is to provide an extensive and predictable body of law to govern the conduct of citizens and businesses in the new state.
Examples of reception statutes can be found in the history of the United States, Canada, and its provinces, and Hong Kong. All US states, except partially for Louisiana, have implemented reception statutes or adopted common law through judicial opinion. In Canada, five of the ten provinces automatically received English law under the principle of a settled colony inheriting English law, while the remaining provinces and territories were governed by reception statutes. Similarly, British colonies were considered to have brought English common law with them, and territories like Ontario, British Columbia, and the Northwest Territories, Yukon, and Nunavut have their own unique histories of reception statutes and the reception of English law.
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Administrative agencies and implied powers
The concept of implied powers recognises that the 27 expressed powers listed in Article I, Section 8 of the Constitution would be inadequate to address all the unforeseeable situations and issues that Congress would need to tackle over time. This grants the legislative branch the broadest possible lawmaking powers to carry out its duties effectively.
In the context of administrative agencies, the courts have differing opinions on the scope of implied powers. Some courts argue that administrative agencies should be given wide latitude to fulfil their duties, allowing them to exercise implied powers as long as they are appropriate for effectuating their delegated responsibilities. On the other hand, other courts maintain that administrative agencies should only possess the implied powers necessary for the just and reasonable execution of their duties.
A notable case that exemplifies the debate surrounding implied powers is Clancy's Lawn Care & Landscaping v. Mississippi State Bd. of Contrs. In this case, the court held that an administrative agency's decision would not be valid if it exercised power not explicitly granted by the legislature or necessarily implied from statutes granting power to the agency.
The Supreme Court plays a pivotal role in interpreting implied powers, significantly shaping federalism and the balance of power between state and federal authorities. Landmark cases such as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) have set precedents and clarified the evolving nature of implied powers, impacting the expansion and contraction of governmental authority.
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Frequently asked questions
Implied powers refer to the authority granted to the US Congress and federal government that extends beyond the explicitly listed powers in the US Constitution. These powers are not specifically enumerated but constitute the unwritten methods a government may employ to exercise its powers.
The US Congress has used its implied powers to pass laws limiting the sale and possession of firearms, the first Federal Minimum Wage law, and the nation's first income tax law.
Common law operated as the primary source of law for several hundred years before Parliament acquired legislative powers to create statutory law. Common law systems are considerably more complicated in practice than in theory. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others.
