Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Powers of Congress – Incidental
§ 1231. THE next power of congress is, “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.”
§ 1232. Few powers of the government were at the time of the adoption of the constitution assailed with more severe invective, and more declamatory intemperance, than this.1 And it has ever since been made a theme of constant attack, and extravagant jealousy.2 Yet it is difficult to perceive the grounds, upon which it can be maintained, or the logic, by which it can be reasoned out. It is only declaratory, of a truth, which would have resulted by necessary and unavoidable implication from the very act of establishing the national government, and vesting it with certain powers. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative power, but laws? What is the power for instance, of laying and collecting taxes, but a legislative power, or a power to make laws to lay and collect taxes? What are the proper means of executing such a power, but necessary and proper laws? In truth, the constitutional operation of the government would be precisely the same, if the clause were obliterated, as if it were repeated in every article.3 It would otherwise result, that the power could never be exercised; that is, the end would be required, and yet no means allowed. This would be a perfect absurdity. It would be to create powers, and compel them to remain for ever in a torpid, dormant, and paralytic state. It cannot, therefore, be denied, that the powers, given by the constitution, imply the ordinary means of execution;4 for without the substance of the power the constitution would be a dead letter. Those, who object to the article, must therefore object to the form, or the language of the provision. Let us see, if any better could be devised.5
§ 1233. There are four possible methods, which the convention might have adopted on this subject. First, they might have copied the second article of the confederation, which would have prohibited the exercise of any power not expressly delegated. If they had done so, the constitution would have been construed with so much rigour, as to disarm it of all real authority; or with so much latitude, as altogether to destroy the force of the restriction. It is obvious, that no important power delegated by the confederation was, or indeed could be executed by congress, without recurring more or less to the doctrine of construction or implication.6 It had, for instance, power to establish courts for the trial of prizes and piracies, to borrow money, and emit bills of credit. But how could these powers be put in operation without some other implied powers and means? The truth is, that, under the confederation, congress was from this very clause driven to [the distressing alternative, either to violate the articles by a broad latitude of construction, or to suffer the powers of the government to remain prostrate, and the public service to be wholly neglected. It is notorious, that they adopted, and were compelled to adopt the former course; and the country bore them out in what might be deemed an usurpation of authority.7 The past experience of the country was, therefore, decisive against any such restriction. It was either useless, or mischievous.8
§ 1234. Secondly. The convention might have attempted a positive enumeration of the powers comprehended under the terms, necessary and proper. The attempt would have involved a complete digest of laws on every subject, to which the constitution relates. It must have embraced all future, as well as all present exigencies, and been accommodated to all times, and all occasions, and all changes of national situation and character. Every new application of the general power must have been foreseen and specified; for the particular powers, which are the means of attaining the objects of the general power, must, necessarily, vary with those objects; and be often properly varied, when the objects remain the same.9 Who does not at once perceive, that such a course is utterly beyond human reach and foresight?10 It demands a wisdom never yet given to man; and a knowledge of the future, which belongs only to Him, whose providence directs, and governs all.
§ 1235. Thirdly. The convention might have attempted a negative enumeration of the powers, by specifying the powers, which should be excepted from the general grant. It will be at once perceived, that this task would have been equally chimerical with the foregoing; and would have involved this additional objection, that in such a case, 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 exceptions only, and those only, which were most prominent; and therefore the least likely to be abused; and that others would be less forcibly excepted under the residuary clause, than if there had not been any partial enumeration of exceptions.11
§ 1236. Fourthly. The convention might have been wholly silent on this head; and then (as has been already seen) the auxiliary powers, or means to carry into execution the general powers, would have resulted to the government by necessary implication; for wherever the end is required, the means are authorized; and wherever a general power to do a thing is given, every particular power necessary for doing it, is included. If this last course had been adopted, every objection, now urged against the clause, would have remained in full force; and the omission might have been made in critical periods a ground to assail the essential powers of the Union.12
§ 1237. If, then, the clause imports no more, than would result from necessary implication, it may be asked, why it was inserted at all. The true answer is, that such a clause was peculiarly useful, in order to avoid any doubt, which ingenuity or jealousy might raise upon the subject. Much plausible reasoning might be employed by those, who were hostile to the Union, and in favour of state power, to prejudice the people on such a subject, and to embarrass the government in all its reasonable operations. Besides; as the confederation contained a positive clause, restraining the authority of congress to powers expressly granted, there was a fitness in declaring, that that rule of interpretation should no longer prevail. The very zeal, indeed, with which the present clause has been always assailed, is the highest proof of its importance and propriety. It has narrowed down the grounds of hostility to the mere interpretation of terms.13
§ 1238. The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant.14 Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, then it may be exercised by congress. If not, congress cannot exercise it.15
§ 1239. But still a ground of controversy remains open, as to the true interpretation of the terms of the clause; and it has been contested with no small share of earnestness and vigour. What, then, is the true constitutional sense of the words “necessary and proper” in this clause? It has been insisted by the advocates of a rigid interpretation, that the word “necessary” is here used in its close and most intense meaning; so that it is equivalent to absolutely and indispensably necessary. It has been said, that the constitution allows only the means, which are necessary; not those, which are merely convenient for effecting the enumerated powers. If such a latitude of construction be given to this phrase, as to give any non-enumerated power, it will go far to give every one; for there is no one, which ingenuity might not torture into a convenience in some way or other to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one phrase. Therefore it is, that the constitution has restrained them to the necessary means; that is to say, to those means, without which the grant of the power would be nugatory. A little difference in the degree of convenience cannot constitute the necessity, which the constitution refers to.16
§ 1240. The effect of this mode of interpretation is to exclude all choice of means; or, at most, to leave to congress in each case those only, which are most direct and simple. If, indeed, such implied powers, and such only, as can be shown to be indispensably necessary, are within the purview of the clause, there will be no end to difficulties, and the express powers must practically become a mere nullity.17 It will be found, that the operations of the government, upon any of its powers, will rarely admit of a rigid demonstration of the necessity (in this strict sense) of the particular means. In most cases, various systems or means may be resorted to, to attain the same end; and yet, with respect to each, it may be argued, that it is not constitutional, because it is not indispensable; and the end may be obtained by other means. The consequence of such reasoning would be, that, as no means could be shown to be constitutional, none could be adopted.18 For instance, congress possess the power to make war, and to raise armies, and incidentally to erect fortifications, and purchase cannon and ammunition, and other munitions of war. But war may be carried on without fortifications, cannon, and ammunition. No particular kind of arms can be shown to be absolutely necessary; because various sorts of arms of different convenience, power, and utility are, or may be resorted to by different nations. What then becomes of the power? Congress has power to borrow money, and to provide for the payment of the public debt; yet no particular method is indispensable to these ends. They may be attained by various means. Congress has power to provide a navy; but no particular size, or form, or equipment of ships is indispensable. The means of providing a naval establishment are very various; and the applications of them admit of infinite shades of opinion, as to their convenience, utility, and necessity. What then is to be done? Are the powers to remain dormant? Would it not be absurd to say, that congress did not possess the choice of means under such circumstances, and ought not to be empowered to select, and use any means, which are in fact conducive to the exercise of the powers granted by the constitution?19 Take another example; congress has, doubtless, the authority, under the power to regulate commerce, to erect lighthouses, beacons, buoys, and public piers, and authorize the employment of pilots.20 But it cannot be affirmed, that the exercise of these powers is in a strict sense necessary; or that the power to regulate commerce would be nugatory without establishments of this nature.21 In truth, no particular regulation of commerce can ever be shown to be exclusively and indispensably necessary; and thus we should be driven to admit, that all regulations are within the scope of the power, or that none are. If there be any general principle, which is inherent in the very definition of government, and essential to every step of the progress to be made by that of the United States, it is, that every power, vested in a government, is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the end of such power; unless they are excepted in the constitution, or are immoral, or are contrary to the essential objects of political society.22
§ 1241. There is another difficulty in the strict construction above alluded to, that it makes the constitutional authority depend upon casual and temporary circumstances, which may produce a necessity to-day, and change it to-morrow. This alone shows the fallacy of the reasoning. The expediency of exercising a particular power at a particular time must, indeed, depend on circumstances, but the constitutional right of exercising it must be uniform and invariable, the same to-day as to-morrow.23
§ 1242. Neither can the degree, in which a measure is necessary, ever be a test of the legal right to adopt it. That must be a matter of opinion, (upon which different men, and different bodies may form opposite judgments,) and can only be a test of expediency. The relation between the measure and the end, between the nature of the means employed towards the execution of a power, and the object of that power, must be the criterion of constitutionality; and not the greater or less of necessity or expediency.24 If the legislature possesses a right of choice as to the means, who can limit that choice? Who is appointed an umpire, or arbiter in cases, where a discretion is confided to a government? The very idea of such a controlling authority in the exercise of its powers is a virtual denial of the supremacy of the government in regard to its powers. It repeals the supremacy of the national government, proclaimed in the constitution.
§ 1243. It is equally certain, that neither the grammatical, nor the popular sense of the word, “necessary,” requires any such construction. According to both, “necessary” often means no more than needful, requisite, incidental, useful, or conducive to. It is a common mode of expression to say, that it is necessary for a government, or a person to do this or that thing, when nothing more is intended or understood, than that the interest of the government or person requires, or will be promoted by the doing of this or that thing. Every one’s mind will at once suggest to him many illustrations of the use of the word in this sense.25 To employ the means, necessary to an end, is generally understood, as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.
§ 1244. Such is the character of human language, that no word conveys to the mind-in all situations one single definite idea; and nothing is more common, than to use words in a figurative sense. Almost all compositions contain. words, which, taken in their rigorous sense, would convey a meaning, different from that, which is obviously intended. It is essential to just interpretation, that many words, which import something excessive, should be understood in a more mitigated sense; in a sense, which common usage justifies. The word “necessary” is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression, which the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. It may be little necessary, less necessary, or least necessary. To no mind would the same idea be conveyed by any two of these several phrases. The tenth section of the first article of the constitution furnishes a strong illustration of this very use of the word. It contains a prohibition upon any state to “lay any imposts or duties, etc. except what may be absolutely necessary for executing its inspection laws.” No one can compare this clause with the other, on which we are commenting, without being struck with the conviction, that the word “absolutely,” here prefixed to “necessary,” was intended to distinguish it from the sense, in which, standing alone, it is used in the other.26
§ 1245. That the restrictive interpretation must be abandoned; in regard to certain powers of the government, cannot be reasonably doubted. It is universally conceded, that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. If, then, the restrictive interpretation must be abandoned, in order to justify the constitutional exercise of the power to punish; whence is the rule derived, which would reinstate it, when the government would carry its powers into operation, by means not vindictive in their nature? If the word, “necessary” means needful, requisite, essential, conducive to, to let in the power of punishment, why is it not equally comprehensive, when applied to other means used to facilitate the execution of the powers of the government?27
§ 1246. The restrictive interpretation is also contrary to a sound maxim of construction, generally admitted, namely, that the powers contained in a constitution of government, especially those, which concern the general administration of the affairs of the country, such as its finances, its trade, and its defence, ought to be liberally expounded in advancement of the public good. This rule does not depend on the particular form of a government, or on the particular demarcations of the boundaries of its powers; but on the nature and objects of government itself. The means, by which national exigencies are provided for, national inconveniences obviated, and national prosperity promoted, are of such infinite variety, extent, and complexity, that there must of necessity be great latitude of discretion in the selection, and application of those means. Hence, consequently, the necessity and propriety of exercising the authorities, entrusted to a government, on principles of liberal construction.28
§ 1247. It is no valid objection to this doctrine to say, that it is calculated to extend the powers of the government throughout the entire sphere of state legislation. The same thing may be said, and has been said, in regard to every exercise of power by implication and construction. There is always some chance of error, or abuse of every power; but this furnishes no ground of objection against the power; and certainly no reason for an adherence to the most rigid construction of its terms, which would at once arrest the whole movements of the government.29 The remedy for any abuse, or misconstruction of the power, is the same, as in similar abuses and misconstructions of the state governments. It is by an appeal to the other departments of the government; and finally to the people, In the exercise of their elective franchises.30
§ 1248. There are yet other grounds against the restrictive interpretation derived from the language, and the character of the provision. The language is, that congress shall have power “to make all laws, which “shall be necessary and proper.” If the word “necessary” were used in the strict and rigorous sense contended for, it would be an extraordinary departure from the usual course of the human mind, as exhibited in solemn instruments, to add another word “proper;” the only possible effect of which is to qualify that strict and rigorous meaning, and to present clearly the idea of a choice of means in the course of legislation.31 If no means can be resorted to, but such as are indispensably necessary, there can be neither sense, nor utility in adding the other word; for the necessity shuts out from view all consideration of the propriety of the means, as contradistinguished from the former. But if the intention was to use the word “necessary” in its more liberal sense, then there is a peculiar fitness in the other word. It has a sense at once admonitory, and directory. it requires, that the means should be, bonâ fide, appropriate to the end.
§ 1249. The character of the clause equally forbids any presumption of an intention to use the restrictive interpretation. In the first place, the clause is placed among the powers of congress, and not among the limitations on those powers. In the next place, its terms purport to enlarge, and not to diminish, the powers vested in the government. It purports, on its face, to be an additional power, not a restriction on those already granted.32 If it does not, in fact, (as seems the true construction,) give any new powers, it affirms the right to use all necessary and proper means to carry ‘into execution the other powers, and thus makes an express power, what would otherwise be merely an implied power. In either aspect, it is impossible to construe it to be a restriction. If it have any effect, it is to remove the implication of any restriction. If a restriction had been intended, it is impossible, that the framers of the constitution should have concealed it under phraseology, which purports to enlarge, or at least give the most ample scope to the other powers. There was every motive on their part to give point and clearness to every restriction of national power; for they well knew, that the national government would be more endangered in its adoption by its supposed strength, than by its weakness. It is inconceivable, that they should have disguised a restriction upon its powers under the form of a grant of power. They would have sought other terms, and have imposed the restraint by negatives.33 And what is equally strong, no one, in or out of the state conventions, at the time when the constitution was put upon its deliverance before the people, ever dreamed of or suggested, that it contained a restriction of power. The whole argument on each side, of attack and of defence, gave it the positive form of an express power, and not of an express restriction.
§ 1250. Upon the whole, the result of the most careful examination of this clause is, that, if it does not enlarge, it cannot be construed to restrain the powers of congress, or to impair the right of the legislature to exercise its best judgment, in the selection of measures to carry into execution the constitutional powers of the national government. The motive for its insertion doubtless was, the desire to remove all possible doubt respecting the right to legislate on that vast mass of incidental powers, which must be involved in the constitution, if that instrument be not a splendid pageant, or a delusive phantom of sovereignty. Let the end be legitimate; let it be within the scope of the constitution; and all means, which are appropriate, which are plainly adapted to the end, and which are not prohibited, but are consistent with the letter and spirit of the instrument, are constitutional.34
§ 1251. It may be well, in this connexion, to mention another sort of implied power, which has been called with great propriety a resulting power, arising from the aggregate powers of the national government. It Will not be doubted, for instance, that, if the United States should make a conquest of any of the territories of its neighbours, the national government would possess sovereign jurisdiction over the conquered territory. This would, perhaps, rather be a result from the whole mass of the powers of the national government, and from the nature of political society, than a consequence or incident of the powers specially enumerated.35 It may, however, be deemed, if an incident to any, an incident to the power to make war. Other instances or resulting powers will easily suggest themselves. The United States are nowhere declared in the constitution to be a sovereignty entitled to sue, though jurisdiction is given to the national courts over controversies, to which the United States shall be a party. It is a natural incident, resulting from the sovereignty and character of the national government.36 So the United States, in their political capacity, have a right to enter into a contract, (although it is not expressly provided for by the constitution,) for it is an incident to their general right of sovereignty, so far as it is appropriate to any of the ends of the government, and within the constitutional range of its powers.37 So congress possess power to punish offences committed on board of the public ships of War of the government by persons not in the military or naval service of the United States, whether they are in port, or at sea; for the jurisdiction on board of public ships is every, where deemed exclusively to belong to the sovereign.38
§ 1252. And not only may implied powers, but implied exemptions from state authority, exist, although not expressly provided for by law. The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions, which are public in their nature, are examples in point. It has never been doubted, that all, who are employed in them, are protected, while in the line of their duty, from state control; and yet this protection is not expressed in any act of congress. It is incidental to, and is implied in, the several acts, by which those institutions are created; and is preserved to them by the judicial department, as a part of its functions.39 A contractor for supplying a military post with provisions cannot be restrained from making purchases within a state, or from transporting provisions to the place, at which troops are stationed. He could not be taxed, or fined, or lawfully obstructed, in so doing.40 These incidents necessarily flow from the supremacy of the powers of the Union, within their legitimate sphere of action.
§ 1253. It would be almost impracticable, if it were not useless, to enumerate the various instances, in which congress, in the progress of the government, have made use of incidental and implied means to execute its powers. They are almost infinitely varied in their ramifications and details. It is proposed, however, to take notice of the principal measures, which have been contested, as not within the scope of the powers. of congress, and which may be distinctly traced in the operations of the government, and in leading party divisions.41
1. The Federalist, No. 33, 44; 1 Elliot’s Deb. 293, 294, 300; 2 Elliot’s Deb. 196, 342.
2. 1 Tuck. Black. Comm. App. 286, 287; 4 Elliot’s Deb. 216, 217, 224, 225.
3. The Federalist, No. 33; 2 Elliot’s Debates, 196; Hamilton on Bank, 2 Hamilton’s Works, 121; M’Culloch v. Maryland, 4 Wheaton’s R. 419.
4. M’Culloch v. Maryland, 4 Wheat. R. 409; 4 Elliot’s Debates, 217, 218, 220, 221.
5. The Federalist, No. 44. See also President Monroe’s Exposition and Message, 4th of May, 1822, p. 47; 3 Elliot’s Deb. 318.
6. The Federalist, No. 44.
7. See The Federalist, No. 38, 44; 4 Wheat. R. 423; 4 Elliot’s Deb. 218, 219.
8. M’Culloch v. Maryland, 4 Wheat. R. 406, 407, 423.
9. The Federalist, No. 44; 2 Elliot’s Deb. 223.
10. M’Culloch v. Maryland, 4 Wheat. R. 407; 4 Elliot’s Deb. 223, 224; Anderson v. Dunn, 6 Wheat. R. 204, 225, 226.
11. The Federalist, No. 44.
12. The Federalist, No. 44.
13. The Federalist, No. 33, 44.
14. Some few statesmen have contended, that the clause gave farther powers, than mere incidental powers. But their reasoning does not seem very clear or satisfactory. See Governor Randolph’s Remarks, 2 Elliot’s Debates, 342; Mr. Gerry’s Speech in February, 1791, 4 Elliot’s Debates, 295, 227. These Speeches are, however, valuable for some striking views, which they present, of the propriety of a liberal construction of the words.
15. See Virginia Report and Resolutions, Jan., 1800, p. 33, 34; 1 Tuck. Black. Comm. App. 287, 288; President Monroe’s Exposition and Message, 4th of May, 1822, p. 47; 5 Marshall’s Wash. App. note 3; 1 Hamilton’s Works, 117, 121.
16. 4 Jefferson’s Corresp. 525, 526; 4 Elliot’s Deb. 216, 217, 224, 225, 267; M’Culloch v. Maryland, 4 Wheat. R. 412, 413.
17. Hamilton on Bank, 1 Hamilton’s Works, 119; 5 Marshall’s Wash. App. note 3, p. 9; Mr. Madison, 4 Elliot’s Deb. 223.
18. United States v. Fisher, 2 Cranch, 358; 1 Peters’s Cond. R. 421; Hamilton on Bank, 1 Hamilton’s Works, 119; 5 Marshall’s Wash. note 3, p. 9, 10; Mr. Madison, 4 Elliot’s Deb. 223.
19. United States v. Fisher, 2 Cranch. R. 358; 1 Peters’s Condens. R. 421.
20. See 4 Elliot’s Debates, 265, 280.
21. Hamilton on Bank, 1 Hamilton’s Works, 120.
22. Hamilton on Bank, 1 Hamilton’s Works, 112.
23. Hamilton on Bank, 1 Hamilton’s Works, 117; 5 Marshall’s Wash. App. note 3, p. 8.
24. Hamilton on Bank, 1 Hamilton’s Works, 129, 120; 5 Marshall’s Wash. App. note 3, p. 9, 10; M’Culloch v. Maryland, 4 Wheat. R. 423.
25. Hamilton on Bank, 1 Hamilton’s Works, 118; 5 Marshall’s Wash. App. note 3, p. 9.
26. M’CuIloch v. Maryland, 4 Wheaton’s R. 413 to 415. In this case (4 Wheaton’s R. 411 to 425,) there is a very elaborate argument of the Supreme Court upon the whole of this subject, a portion of which has been already extracted in the preceding Commentaries, on the rules of interpretation of the constitution.
27. M’CuIloch v. Maryland, 4 Wheat. R. 418.
28. Hamilton on Bank, 1 Hamilton’s Works, 120, 121.
29. Hamilton on Bank, 1 Hamilton’s Works, 122.
30. The Federalist, No. 33, 44.
31. M’Culloch v. Maryland, 4 Wheat. R. 418, 419.
32. M’CuIloch v. Maryland, 4 Wheat. R. 419, 420.
33. M’Culloch v. Maryland, 4 Wheat. R. 420.
34. M’Culloch v. Maryland, 4 Wheat. R. 420, 421, 423. See also 4 Elliot’s Debates, 220, 221, 222, 223, 224, 225; 2 Elliot’s Debates, 196, 342; 5 Marsh. Wash. App. No. 3; 2 American Museum, 536; Anderson v. Dunn, 6 Wheat. It. 204, 225, 226; Hamilton on Bank, 1 Hamilton’s Works, 111 to 123.
35. Hamilton on Bank, 1 Hamilton’s Works, 115.
36. See Dugan v. United States, 3 Wheat. R. 173, 179, 180.
37. United States v. Tingey, 5 Peters’s R. 115.
38. United States v. Bevans, 3 Wheaton’s R. 388; The Exchange, 7 Cranch, 116; S.C. 2 Peters’s Cond. R. 439.
39. Osborn v. Bank of U. States, 9 Wheat. R. 365, 366.
40. Id. 367.
41. Some minor points will be found in the debates collected in 4 Elliot’s Debates, 139, 141, 229, 234, 235, 238, 239, 240, 243, 249, 251, 252, 261, 265, 266, 270, 271, 280. There is no express power given by the constitution to erect forts, or magazines, or light-houses, or piers, or buoys, or public buildings, or to make surveys of the coast; but they have been constantly deemed incidental to the general powers. Mr. Bayard’s Speech in 1807, (4 Elliot’s Debates, 265;) Mr. Pickering’s Speech, 1817, (4 Elliot’s Debates, 280.)