Is the Constitution a “living” document? 63Multiple Interpreters
The final way that the Constitution maintains its relevance is through changing views
of the document by multiple interpreters. As we pointed out in the previous discussion
of the commerce clause, there have been significant changes in the way the Constitution
structures the policy-making process, even though the pertinent text of the Constitution
has not changed.^26 This point is best understood by examining the concept of implied
powers—that is, powers that are not explicitly stated in the Constitution but can be
inferred from an enumerated power. The Supreme Court often defines the boundaries
of implied powers, but Congress, the president, and the public can also play key roles.
Three of the earliest examples of implied powers show the president, the Supreme
Court, and Congress each interpreting the Constitution and contributing to its
evolving meaning. The first involved the question of how active the president should
be in stating national foreign policy principles. In issuing his famous proclamation of
neutrality in 1793, George Washington unilaterally set forth a national foreign policy,
even though the president’s power to do so is not explicitly stated in the Constitution.
Alexander Hamilton defended the presidential power to make such a proclamation
as implied in both the executive powers clause and the president’s explicitly granted
powers in the area of foreign policy (receiving ambassadors, negotiating treaties, and
serving as commander in chief ). Thomas Jefferson, in contrast, thought it was a terrible
idea for presidents to have that kind of power. He preferred that such general policy
statements be left to Congress.
The Supreme Court first made its mark on the notion of implied powers in a
landmark case involving the creation of a national bank. In McCulloch v. Maryland
(1819), the Court ruled that the federal government had the power to create a national
bank and denied the state of Maryland the right to tax a branch of that bank. The Court
said it was not necessary for the Constitution to expressly grant Congress the power to
create the bank; rather, it was implied in Congress’s power over financial matters and
from the necessary and proper clause of the Constitution.
Congress got into the act with an early debate over the president’s implied power to
remove appointed officials. The Constitution clearly gives the president the power to
make appointments to cabinet positions and other top executive branch offices, but it
is silent on how these people can be removed. This was one of the most difficult issuesimplied powers
Powers supported by the Constitution
that are not expressly stated in it.This flowchart shows how
amendments to the Constitution can
be proposed and ratified and the
frequency with which each method has
been used. Interestingly, the president
is not a part of the formal process of
amending the Constitution.NUTS
& B O LT S
2.3Amending the
ConstitutionProposal Ratification Frequency of useNeverNeverOnceAll but onceAmendment is proposed
by a national convention that
is called by at least two-thirds
of the state legislaturesBy at least three-fourths of the
state legislaturesBy at least three-fourths of state
conventions called for the purpose
of ratifying the amendmentBy at least three-fourths of the
state legislaturesBy at least three-fourths of state
conventions called for the purpose
of ratifying the amendmentCongress proposes
amendment by at least
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