1. Necessary and proper clause is open to interpretation, and reasonable minds can disagree over what laws are "necessary and proper" for Congress to exercise the express powers granted to it by the Constitution. Not surprisingly then, its interpretation has been controversial, especially during the early years of the republic, and with the powers asserted under the New Deal. Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers ("foregoing powers"). Others argue that the elastic clause expands the authority of Congress to not only "carry into execution" the enumerated powers, but to get whatever result those who apply an express power might seek in doing so. It is often known as the elastic clause because of the great amount of leeway in interpretation it seems to allow; depending on the interpretation, it can be used to "stretch" or expand the powers of Congress, or allowed to "contract," limiting the implied powers of Congress by the expansion of the implied powers of other branches. It is usually held, however, that it may not be used to deprive other governmental branches of powers expressly granted to them in the Constitution.
2. Full Faith and Credit Clause has been noted for its application involving orders of protection, for which the clause was expounded upon by the Violence Against Women Act, child support, for which the enforcement of the clause was spelled out in the Federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B), and its possible application to same-sex marriage, civil union and domestic partnership laws and cases, as well as the controversial Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment. The clause has been the chief constitutional basis for the repeated attacks on the DOMA. Regardless of whether DOMA is constitutional, most legal scholars recognize that it is superfluous in some cases given the public policy exception in matrimonial choice of law. For even if DOMA is deemed unconstitutional, the long precedence of the public policy exception weighs in against the recognition of same-sex marriage, civil unions and domestic partnerships in states whose public policy prohibits it.
3. The Privileges or Immunities Clause was perhaps originally intended to incorporate the first eight amendments of the U.S. Bill of Rights against the state governments, while also incorporating other constitutional rights against the state governments (e.g. the privilege of the writ of habeas corpus). However, that incorporation has instead been achieved mostly by means of the Due Process Clause of the Fourteenth Amendment.
2007-11-30 09:42:26
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answer #1
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answered by FRAGINAL, JTM 7
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