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the government or on the particular delineation or demarkation of the boundaries of its powers, but on the condition of society, and on the nature and objects of government itself. The means by wbich national exigencies are to be satisfied, national inconveniences obviated, national prosperity promoted, are of such infinite variety, extent and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means. It is essential to the public good that the power of providing for it should be commensurate with the diversity of circumstances by which it may be affected; and consequently that the authorities confided to the government should be exercised on principles of liberal construction."
The Attorney General, admitting the rule here laid down, takes a distinction between a state and the Federal constitution, and thinks the latter ought to be construed with greater strictness because there is more danger of error in defining partial than general powers.
But if the reason of the rule is adverted to, it must be concluded that this distinction cannot be admitted. That reason is founded on the variety and extent of public concerns and public exigencies; a far greater proportion of which and of a far more critical and important kind are objects of National than of State administration. If therefore the supposition of greater danger of error be acceded to it could only operate as
a prudential motive to caution adinin. istering the powers of the National government not as a principle of restrictive interpretation."
It will be shewn hereafter that the rule above mentioned has goperned the various acts of Congress which have received the Sanction of the Chief Magistrate; and it is not to be doubted that every days experience will evince it to be indispensable to the prosperous conduct of the affairs of the Union.
Another position equally incontrovertible is this — that though the Government of the Union does not possess complete and intire sovereignty in every respect, it nevertheless possesses sovereign powers (in a variety of respects,]" and these of a high and transcendent nature. Of these the most important are the power of taxation, that of regulating commerce with foreign vations, between the several states and with the invlian tribes, that of making war and as incidents to it of raising, supporting and governing armies and fleets, and that of making
1 Much compressed in Lodge, 111. 181, 189. In the draught the following was inserted at this point, and struck out : “ The only exception to this rule is of cases in which the security of private property and personal liberty is concerned.”
2 Lodge, wu. 190.
Indefinite power of taxation" was first written.
treaties. If it were not evident that government and sovereignty applied to pations are convertible terms; if the idea of sovereignty were not necessarily included in the powers which have been mentioned; if it were requisite to confirm the position which has been advanced by proof, there is a clause in the constitution which would put the matter out of all doubt. It is that which declares that the Constitution, and the laws of the United States made in pursuance of it, and all treaties made or which shall be made under their authority shall be the Supreme
law of the Land. The power which can create the Supreme law of the land, in any case, is doubtless sovereign in relation to such case,
The plain inference to be drawn from this position is this, that in carrying into execution the powers vested in the national Government, it has a right to employ all the means which are fairly and truly calculated to effect the objects of those powers, in as full and ample a manner as can be done by any Government whatever; or in other words it can do, in relation to those objects every thing which is not contrary to limitations and exceptions 2 specified in the constitution; for which is not in itself immoral or inconsistent with the ends of political society.
This idea enters into the very definition of sovereignty or government; and though that of the United States cannot do all that some other governments can do, it can do all that any other government can do in relation to the objects entrusted to its management; except so far as there may be specified restrictions.] *
If this be not the true rule there is then no rule at all. It must become impossible to determine what can or cannot be constitutionally done. The legality of the means to be made use of in each case must be a subject of vague and endless controversy; in which caprice and prejudice must have much greater influence than reason or principle.
To urge as an objection to this that “all powers not delegated to the U. S. by the constitution, nor prohibited by it to the states are reserved to the States or to the People" is to do nothing. This is only saying in another form that the United States possess no powers not delegated to them; a position alike applicable to all popular constitutions of Government and to that of each state equally with that of the Union. It resolves itself into this general 6 maxim that all government is a DELEGATION of How much is delegated in any case is always
1 Lodge, 111. 182.
2 "Implied in the idea of sovereign power (authority), subject only to the" was first written
3 “Subversive of the personal rights" was first written.
was first used.
a question of fact to be determined by the particular provisions of a constitution and by fair construction upon those provisions."
It certainly will not be pretended that the proposition which has been quoted was designed to exclude the doctrine of implied powers. There is nothing in the manner of expression which indicates such a meaning and it is known that it was not the intention of it.
Hence no inference can be drawn from it agaiust the position which has been deduced from the nature of sovereign power.?
To say that such things only may lawfully be done as are "necessary and proper” amounts to nothing. This is in truth only to say that all requisite and fit means may be employed; which brings the matter precisely to the issue of a right to do whatever is fairly and truly calculated to effect the objects of the powers vested in the government.
The Secretary of State has annexed a more strict sense to the word necessary which he considers as restricting the government to the employment of those means without which “ the grant of the power would be nugatory.” In this however, he is neither warranted by the grammatical nor popular meaning of the word, nor by considerations of political expediency, nor by the most obvious import of the clause which contains the expression, nor by the practice of the Government
Not by the grammatical sense, because this, in many, and in relation to political subjects, in most cases establishes the word necessary as equivalent only to requisite or needful or conducire to. Thus if it should be observed “that it is necessary to Great Britain to maintain a good understanding with Holland” 4 this would only mean that the maintenance of that good understanding is a thing useful to her or conducive to her interests. It would not signify that it is essential or indispensable or absolutely requisite ; [or a thing without which she could not exist or prosper as a nation.]"
Neither does such a signification accord with the popular use of the term. A man will say for instance “ It is necessary that I should breakfast before I go to business.” This would not mean that he could not do business without having first breakfasted ; but merely that his habits are such as to render it inconvenient to him to enter upon the business of the day before he has made that meal.
Considerations of political expediency do not favour such a construction; because it tends to create a disability in the government to pursue measures which though highly useful may not be absolutely essential;
1 Lodge, in. 183, 184.
and of course abridges its power of doing good even in reference to the objects which are particularly confided to it."
It must ever be a matter of infinite uncertainty when a measure is necessary in the sense in which the word is understood by the Secretary of State. Many very intelligent men have contended that all regulations of trade are pernicious. There are many in this country who now maintain that all extra burthens 2
That construction does not consist with the most obvious import of the clause containing the expression. No person who should read it without an eye to any particular question that might give a byass to his judgment, but would be inclined to infer that it was intended to give latitude to the enumerated powers rather than to confine their operation, Placed at the end of them it is couched in these comprehensive terms: “ To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States or in any department or ofice thereof." 3 The turn of the expressions as well as the familiar and popular sense of the words forbids a restrictive interpretation.
If it were proper to go out of the instrument into what passed in the course of the debates in the Convention, or even to resort to the minutes of that body, ample confirmation would be found of the sense * here contended for. But a recourse of that kind is not admissible. Nor can it be requisite. The clause itself speaks a language not easily to be mistaken. It is evidently designed to place on an unequivocal footing the power of the government to employ all the means fairly relative to the execution of its specified powers and to the fulfilment of the objects 5 entrusted to its direction.
The Attorney General indeed concedes that no such restrictive effect ought to be ascribed to the clause; and defines the word pecessary thus “ To be necessary is to be incidental, or in other words may be denomiDated the natural means of executing a power. Inspection As on the one hand the sense put upon the clause by laws
the Secretary of State cannot be admitted to be just? The practice of the government has contradicted such an interpretation. The act for the establishment and support of light houses, beacons, buoys and public piers may be cited as an example. This doubtless must
1 The consideration of Jefferson's objection was compressed in the final form. -Lodge, ill. 186, 187.
2 This paragraph was not completed and was struck out. See p. 162, post. : Lodge, m. 187. 4 " Reasoning ” was first used. 6 "Most prosperous conduct of the affairs” was first written,
6 These paragraphs were struck out. The second reappears later. The last paragraph is in Lodge, 111. 190. See p. 162, post. i This unfinislied paragraph was struck out.
be referred to the power which respects the regulation of trade and it is certainly fairly relative to it. But it cannot be affirmed that it was absolutely necessary that provision should be made for this object by the National Government, or that the interests of Trade would have essentially suffered if it had been left upon its former footing; for that the power of regulating trade would be nugatory without that of regulating establishments of this nature.] All that can be said is that as such establishments relate to and are useful to trade, they were a proper object of the care of that authority which is charged with the trust of promoting its interests.
To affix the sense advocated by the Secretary of State to the word necessary would lead to infinite uncertainty. There are persons who maintain for instance that all regulations of Trade are pernicious. There are others who are of opinion that immunities which have been granted to certain branches of trade and the restraints which have been laid upon others are hurtful to the general interests of commerce. There are wide differences of opinion about the measures which are or are not necessary and proper to promote the navigation of this country. How shall it be determined what is strictly necessary ? because it seems nothing else is to be supposed to be included in the power to regulate trade,
Nothing can better shew the fallacy of the doctrine espoused by the Secretary of State than some of the arguments which he makes use of to enforce it. One of these is that there are existing banks in some of the states which may serve the purposes of a National Bank, and therefore render the establishment of one unnecessary. Here the constitutional right of exercising a power is made to depend on certain arrangements which happen to have been made by particular states and which ere long may disappear. Surely the rights and powers of a government cannot depend upon such fortuitous, casual and foreign circumstances. Surely a right to establish a Bank' which does not exist today, because institutions of that kind in which the Government has had no agency happen to exist, cannot be created tomorrow by their disappearance. Surely therefore a principle which turns on such an argument can not be just. [Take in here what relates to manner of construing Constitution.*]
The Attorney General indeed concedes that no restrictive operation is to be ascribed to the word necessary. He defines it thus: “ To be necessary is to be incidental, and may be denominated the patural means of executing a power.'
1 These words were written in the margin. - Lodge, 111. 189.