صور الصفحة
النشر الإلكتروني

that body, as the legislature of the Union; and cannot be exercised in any other character. A law passed in pursuance of it is the supreme law of the land, and binding on all the states, and cannot be defeated by them. The power to pass such a law carries with it all the incidental powers to give it complete and effectual execution; and such a law may be extended in its operation incidentally throughout the United States, if congress think it necessary so to do. But if intended to have efficiency beyond the district, language must be used in the act expressive of such an intention; otherwise it will be deemed purely local.

[merged small][merged small][ocr errors][merged small]

§ 600. THE next power of congress is, "to make "all laws, which shall be necessary and proper for car"rying into execution the foregoing powers, and all "other powers vested by this constitution in the gov"ernment of the United States, or in any department, "or officer thereof."

§ 601. Few powers of the government were at the time of the adoption of the constitution assailed with more severe invective, and more declamatory intemperance, than this. And it has ever since been made a theme of constant attack, and extravagant jealousy. Yet it is difficult to perceive the grounds, upon which any objection can be maintained, or the logic, by which it can be reasoned out. The clause is only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of establishing the national government, and investing it with certain powers. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative power, but laws? What is the power for instance, of laying and collecting taxes, but a legislative power, or a power to make laws to lay and collect taxes? What are the proper means of executing such a power, but necessary and proper laws? In truth, the constitutional operation of the government would be precisely the

same, if the clause were obliterated, as if it were repeated in every article. It would otherwise result, that the power could never be exercised; that is, the end would be required, and yet no means allowed. This would be a perfect absurdity. It would be to create powers, and compel them to remain for ever in a torpid, dormant, and paralytic state. It cannot, therefore, be denied, that the powers, given by the constitution, imply the ordinary means of execution; for without the substance of the power the constitution would be a dead letter.

§ 602. If, then, the clause imports no more, than would result from necessary implication, it may be asked, why it was inserted at all. The true answer is, that such a clause was peculiarly useful, in order to avoid any doubt, which ingenuity or jealousy might raise upon the subject. Much plausible reasoning might be employed by those, who were hostile to the Union, and in favour of state power, to prejudice the people on such a subject, and to embarrass the government in all its reasonable operations. Besides; as the confederation contained a positive clause, restraining the authority of congress to powers expressly granted, there was a fitness in declaring, that that rule of interpretation should no longer prevail. The very zeal, indeed, with which the present clause has been always assailed, is the highest proof of its importance and propriety. It has narrowed down the grounds of hostility to the mere interpretation of the terms.

§ 603. The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new

power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant. Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary and proper to its execution. If it be, then it may be exercised by congress. If not, congress cannot exercise it.

§ 604. But still a ground of controversy remains open, as to the true interpretation of the terms of the clause; and it has been contested with no small share of earnestness and vigour. What, then, is the true constitutional sense of the words "necessary and proper" in this clause? It has been insisted by the advocates of a rigid interpretation, that the word "necessary" is here used in its close and most intense. meaning; so that it is equivalent to absolutely and indispensably necessary. It has been said, that the constitution allows only the means, which are necessary; not those, which are merely convenient for effecting the enumerated powers. If such a latitude of construction be given to this phrase, as to include any non-enumerated power, it will go far to include every one; for there is no one, which ingenuity might not torture into a convenience in some way or other to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one phrase. Therefore it is, that the constitution has restrained congress to the necessary means; that is to say, to those means, without which the grant of

[blocks in formation]

the power would be nugatory. A little difference in the degree of convenience cannot constitute the necessity, which the constitution refers to.

§ 605. The effect of this mode of interpretation is to exclude all choice of means; or, at most, to leave to congress in each case those only, which are most direct and simple. If, indeed, such implied powers, and such only, as can be shown to be indispensably necessary, are within the purview of the clause, there will be no end to difficulties, and the express powers must practically become a mere nullity. It will be found, that the operations of the government, upon any of its powers, will rarely admit of a rigid demonstration of the necessity (in this strict sense) of any particular means. In most cases, various systems or means may be resorted to, to attain the same end; and yet, with respect to each, it may be argued, that it is not constitutional, because it is not indispensable; and the end may be obtained by other means. The consequence of such reasoning would be, that, as no means could be shown to be constitutional, none could be adopted. For instance, congress possess the power to make war, and to raise armies, and incidentally to erect fortifications, and purchase cannon and ammunition and other munitions of war. But war may be carried on without fortifications, cannon, and ammunition. No particular kind of arms can be shown to be absolutely necessary; because various sorts of arms of different convenience, power, and utility are, or may be resorted to by different nations. What then becomes of the power? Congress has power to borrow money, and to provide for the payment of the public debt; yet no particular method is indispensable to these ends. They may be attained by various means. Congress has power to provide a navy ;

« السابقةمتابعة »