The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-09-28

granted 70 H. ms pRus -, " Sooiso, iessitN'eu
The restriction expressed and defined, in that clause
Of tbs Constitution which authorizes Congress TO pass
all laws, which are necessary and proper to enable il
carry into effect the powers granted to the General
Congress can, therefore, exercise implied powers
powers not expressly graned-but only far as is
cessary and proper to enable il carry into execution
the powers which granted The powers Of the Ge
neral Government limited but in passing laws TO
carry these powers into execution, ii is limited only by
the condition that the law shall be passed with the
bona fde purpose Of carrying some given power into
execution that it shall not be expressly prohibited
plainly inconsistent with the spirit Of the Consii
tuition, destructive Of other constitutional rights
and powers
II has been contended that the meaning of the
clause which empowers Congress " to make all laws
which shall be necessary and proper for carrying into
execution" the powers granted TO the General Govern
ment the same if il had been written Congress
shall make laws but such shall be absolutely
necessary for carrying into execution" SC. But
surely if this had been the meaning Of the conven-
lion, they could have expressed clearly and to
prevent all Misunderstanding !, easy to devise
and employ the one set Of words the other. The
words absolutely necessary" are in fact used in
clause Of the Constitution containing restriction up
the States thus showing that the convention knew
how to express that meaning when they intended it.
Ii the word necessary is to be understood
ing absolutely necessary the word proper, which
comes after il, is wholly superfuous and unmeaning
What is absolutely necessary must Of course, be pro-
per but law might be merely necessary, highly
hibited by the Constitution.
The word necessary is not commonly used in speech
writing TO convey the meaning absolutely necessary
The word absolutely, ndispensably, is joined with
it to express that meaning, and sometimes the word
indispensable is used, alone, expressing higher
degree Of necessity than the word necessary.
Another objection to this alleged meaning is, that
if Congress could make no laws, but such alb
solu,ey necessary for carrying the powers Of Govern
ment into effect, it could, in fact, make at ALL
1t could rarely, if ever, happen that there not
various ways modes of carrying given power into
effect but mode could be said to be absolutely
necessary or Indispensable long there were
others.
On the other hand this clause cannot be understood
as giving Congress unlimited power Of legislation,
Constitution. II pass no laws, but for the pur-
pose Of carrying its powers into execution they must
be necessary, and honestly adapted to that purpose
and not intended, under the pretence Of carrying
given power into execution, TO execute some other
power accomplish purpose, not delegated, or
entrusted, to the General Government. Nor would
the very best means of carrying given power into
effect be allowable merely because they tho very
best although they might not be expressly prohibited
The blessings Of free Government are purchased by
Inconvenience in the action Of the Government
Under monarchy, all the functions Of Government
are performed with more vgor certainty and celeri-
ty that in Republic, for the very reason that il is
less embarrassed, in its operations by considerations
to the welfare pleasure of the people. Under a
free Government, the spirit of the Constitution must
be regarded as well as the letter
The next question is who is TO be the Judge of the
degree of necessity and propriety which would au-
thorize Congress to assume power not granted to
Ine supreme court mas answered this question in
its opinion in the of McCnlloch against the Bank
of Maryland. The words Of Judge Marshall are
"Should Congress, in the execution Of IFS mowers
adopt measures which prohibited by the ConstItu
ton or should Congress- under the pretert Of exc
cutting its powers, pass laws for the accomplishment Of
objects not entrusted 10 the Government il would be-
come the painful duty Of this tribunal should case
requiring such decision before H. To say that
such an act was not the law of the land But when
the law is not prohibited and really calculated 10 ef
feet any OF the objects entrusted 10 the Government
10 undertake. here to inquire into the degree Of its ne
ccssity would be TO pass the line which circumscrbes
the Judicial department. and to tread on Legislative
ground"
The reason of this decision is obvious II is the
business of the Judiciary to expound the intent of
laws, and not TO judge how far they necessary and
proper to carry intentions into effect to nterpre.
words and not TO decide questions Of political
my The studies and the qualifications necessary to
make judge, are different from those which make
statesman or a legislator. No book for instance,
which would appropriately form part Of the library Of
judge, would help legislator to solve the problem
how far a National Bank is necessary TO enable our
Government to carry its powers into execution.
The Supreme Court Judge and decide whether
power exercised by Congress expressly granted to
il, or expressly prohibited but il cannot Judge how
far power, not prohibited may be necessary for car
rying into execution the powers granted to the Gene
raj Government.
1t is great error, therefore, to suppose that, with
respect TO the implied powers Of Congress, the dec
sion Of the Supreme Court would be as obligatory
upon the National Legislature upon the People or
The States, or could prevent il from opening the ques
ton Of the constuonay, of any particular exercise
Of implied powers which that Court had once declared
10 be constitutional.
But il is urged that, unless decision upon con-
'titutiona point is considered binding if one Con-
gress have right TO declare that law is constitution
al and another TO declare that not cons,itut iona
nothing could be settled, and the Constitution would
be one thing to-day, and another thing to morrow
This, however, is not correct mode Of stating the