Constitutional history -- United States -- Sources; Constitutional law -- United States
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. Had the convention taken the first method of adopting the
second article of Confederation, it is evident that the new Congress
would be continually exposed, as their predecessors have been, to the
alternative of construing the term “EXPRESSLY” with so much rigor, as
to disarm the government of all real authority whatever, or with so
much latitude as to destroy altogether the force of the restriction.
Public-domain text, read in full here on John Shaqi.
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