Necessary and Proper Clause

Author:Sotirios A. Barber

Page 1790

The enumeration of powers in Article I, section 8, gives Congress the power to do such specific things as "regulate commerce ? among the several States" and "raise and support Armies." At the end of the list 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." The ANTIFEDERALISTS called this the "elastic clause" or the "sweeping power." They predicted it would centralize all governmental power in the national government. JAMES MADISON denied this charge in THE FEDERALIST #23. He observed that the clause spoke of power to execute only those powers that were specified elsewhere in the document, and that the power vested by the clause would have been implicit in the grant of other powers even without the clause. (See IMPLIED POWERS.) The clause, therefore, did not conflict with the principle of enumerated national powers, Madison argued. Events have vindicated Anti-Federalist fears.

THOMAS JEFFERSON and ALEXANDER HAMILTON took opposing positions on the meaning of the word "necessary" in the clause during their debate in 1791 on the constitutionality of the first BANK OF THE UNITED STATES ACT. Hamilton argued that the nation needed a BROAD CONSTRUCTION of congressional powers so that the government could employ a wide variety of means useful to the discharge of its responsibilities. Jefferson countered that a broad construction would enable Congress to encroach upon the reserved powers of the states whenever its measures might serve as means to ends within its enumerated powers. To safeguard STATES ' RIGHTS, such encroachments should be permitted only when "absolutely necessary," said Jefferson?only, that is, when failure to encroach would nullify the grant of federal power. Hamilton's view prevailed first with President GEORGE WASHINGTON in 1791 and later in the Supreme Court, when JOHN MARSHALL'S opinion in MCCULLOCH V. MARYLAND upheld the second national bank in 1819.

Marshall construed national powers in terms of a few authorized national ends. Most important, he understood the COMMERCE POWER and related powers as authorizing the pursuit of national prosperity and the various military and diplomatic powers as authorizing the pursuit of national security. This ends-oriented conception of national powers was the view of...

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