Constitutional history -- United States -- Sources; Constitutional law -- United States
The restraint on the power of the States over imports and exports is
enforced by all the arguments which prove the necessity of submitting
the regulation of trade to the federal councils. It is needless,
therefore, to remark further on this head, than that the manner in which
the restraint is qualified seems well calculated at once to secure to
the States a reasonable discretion in providing for the conveniency of
their imports and exports, and to the United States a reasonable check
against the abuse of this discretion. The remaining particulars of this
clause fall within reasonings which are either so obvious, or have been
so fully developed, that they may be passed over without remark.
The SIXTH and last class consists of the several powers and provisions
by which efficacy is given to all the rest.
1. Of these the first is, the "power to make all laws which shall be
necessary and proper for carrying into execution the foregoing powers,
and all other powers vested by this Constitution in the government of
the United States, or in any department or officer thereof."
Few parts of the Constitution have been assailed with more intemperance
than this; yet on a fair investigation of it, no part can appear more
completely invulnerable. Without the SUBSTANCE of this power, the whole
Constitution would be a dead letter. Those who object to the article,
therefore, as a part of the Constitution, can only mean that the FORM
of the provision is improper. But have they considered whether a better
form could have been substituted?
There are four other possible methods which the Constitution might have
taken on this subject. They might have copied the second article of the
existing Confederation, which would have prohibited the exercise of
any power not EXPRESSLY delegated; they might have attempted a
positive enumeration of the powers comprehended under the general terms
"necessary and proper"; they might have attempted a negative enumeration
of them, by specifying the powers excepted from the general definition;
they might have been altogether silent on the subject, leaving these
necessary and proper powers to construction and inference.
Public-domain text, read in full here on John Shaqi.
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