Constitutional history -- United States -- Sources; Constitutional law -- United States
It would be easy to show, if it were necessary, that no important
power, delegated by the articles of Confederation, has been or can be
executed by Congress, without recurring more or less to the doctrine of
CONSTRUCTION or IMPLICATION. As the powers delegated under the new
system are more extensive, the government which is to administer it
would find itself still more distressed with the alternative of
betraying the public interests by doing nothing, or of violating the
Constitution by exercising powers indispensably necessary and proper,
but, at the same time, not EXPRESSLY granted. Had the convention
attempted a positive enumeration of the powers necessary and proper for
carrying their other powers into effect, the attempt would have
involved a complete digest of laws on every subject to which the
Constitution relates; accommodated too, not only to the existing state
of things, but to all the possible changes which futurity may produce;
for in every new application of a general power, the PARTICULAR POWERS,
which are the means of attaining the OBJECT of the general power, must
always necessarily vary with that object, and be often properly varied
whilst the object remains the same.
Had they attempted to enumerate the particular powers or means not
necessary or proper for carrying the general powers into execution, the
task would have been no less chimerical; and would have been liable to
this further objection, that every defect in the enumeration would have
been equivalent to a positive grant of authority. If, to avoid this
consequence, they had attempted a partial enumeration of the
exceptions, and described the residue by the general terms, NOT
NECESSARY OR PROPER, it must have happened that the enumeration would
comprehend a few of the excepted powers only; that these would be such
as would be least likely to be assumed or tolerated, because the
enumeration would of course select such as would be least necessary or
proper; and that the unnecessary and improper powers included in the
residuum, would be less forcibly excepted, than if no partial
enumeration had been made. Had the Constitution been silent on this
head, there can be no doubt that all the particular powers requisite as
means of executing the general powers would have resulted to the
government, by unavoidable implication. No axiom is more clearly
established in law, or in reason, than that wherever the end is
required, the means are authorized; wherever a general power to do a
thing is given, every particular power necessary for doing it is
included. Had this last method, therefore, been pursued by the
convention, every objection now urged against their plan would remain
in all its plausibility; and the real inconveniency would be incurred
of not removing a pretext which may be seized on critical occasions for
drawing into question the essential powers of the Union. If it be asked
what is to be the consequence, in case the Congress shall misconstrue
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