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same with or without it. This is a great and obvious mistake. The tenth amendment was wisely incorporated into the Constitution, for the express purpose of denying to the government that unbounded discretion, in the selection and use of its means, for which he contends. The power to make all laws necessary and proper for carrying into effect the granted powers is conferred on congress alone; it is exclusively a legislative power. So far, therefore, as the government is concerned, it derives no power from this clause; and the same is true of its several departments. They have no discretion in the selection of any incidental means of executing their several trusts. If they need the use of such means, they must apply to congress to furnish them; and it is discretionary with that body, whether to furnish them or not. All this is perfectly clear from the very language of the Constitution, and the propriety of such a provision must be apparent to every one. If power could be implied in favor of such a government as ours, it would, if nothing were said to the contrary, be implied in favor of every department and officer thereof, to the execution of whose duties it might seem to be necessary. This would be a wide extent of discretion, indeed; so wide, that it would render all the limitations of the Constitution nugatory and useless. It is pre[*102] cisely this result which was intended to be *prevented

by the clause in question. The States were unwilling to entrust such a discretion either to the government, or to the several departments or officers thereof. They were willing to confer it on congress alone; on the legislative department, the more immediate representatives of the States and their people, who would be most apt to discharge the trust properly, because they had the least temptation to abuse it. It is not true, then, as our author supposes, or, at least, it is not true of our system, that “every power in the 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 ends of such power, unless they are excepted in the Constitution, or forbidden by some consideration of public morals, or by their unsuitableness to the proper objects of government.” In our government, the means are at the disposal of one department only, which may either grant or withhold them at its pleasure. What, then, are the proper limitations of the power of congress in this respect? This has always been a subject of great difficulty, and of marked difference of opinion, among politicians. I cannot hope that I shall be able perfectly to disembarrass it; but I think, nevertheless, that there are a few plain rules, the propriety of which all will admit, and which may materially aid us in the formation of a sound opinion upon the subject. In the first place, then, it is to be observed that congress has no power under this clause of the Constitution, except to provide the means of executing the granted powers. It is not enough that the means adopted are sufficient to that end; they must be adopted bona fide, with a view to accomplish it. Congress have no right to use for the accomplishment of one purpose, means ostensibly provided for another. To do so would

be a positive fraud, and a manifest usurpation; for, if the pur

pose be lawful, it may be accomplished by its own appropriate means, and if it be unlawful, it should not be accomplished at all. It is quite obvious that, without this check, congress may, by indirection, accomplish almost any forbidden object; for among the great variety of means adapted to carry out the granted powers, some may be found equally calculated to effect, either by their direct or their indirect action, purposes of a wholly different character and tendency. It is, therefore, of the utmost importance to the preservation of the true principles of the Constitution, that strict faith should be kept upon this point. In the second place, the means provided must not only be “necessary,” but they must also be “proper.” If the word “necessary” “stood alone, it would be susceptible of a *108] very extended meaning, and would probably be considered as embracing powers which it never was in the contemplation of the framers of the Constitution to grant. It was necessary, then, to limit and restrain it by some other word, and the word “proper” was very happily selected. This word requires that the means selected shall be strictly constitutional. In ascertaining this, we must have regard not only to the express provisions of the Constitution, but also to the general nature and character of our institutions. Ours is a free government, which implies that it is also an equal government; it therefore authorizes the employment of no means for the execution of its powers, except such as are consistent with the spirit of liberty and equality. Ours is a confederated government; it therefore authorizes no means which are inconsistent with the distinct sovereignty of the States, the confederating powers. Ours is a government of “delegated” powers, limited and specifically enumerated; it therefore authorizes no means which involve, in the use of them, any distinct substantive power, not granted. This single rule, if fairly and honestly observed, will go far to remove many serious difficulties upon this point, and will deprive the federal government of many important powers which it has hitherto exercised, and which are still claimed for it, by our author, and the whole political school to which he belongs. The propriety, and, indeed, the absolute necessity of the rule, appear to me to be obvious. If powers not granted might be used as means of executing the granted powers, it is manifest that no power whatever could be considered as denied. It is not enough that there is no apparent unconstitutionality in the use of such means, in the particular case. If they involve a principle which will authorize the use of ungranted powers in any other case, they are forbidden by the Constitution. To illustrate this idea by an example. Congress has power to regulate commerce among the several States. This is supposed by some to give them power to open channels of commerce, by making roads, cutting canals, &c., through the territories of the States. But this is a substantive power in itself, not granted to the United States, but reserved to the States respectively, and therefore is not allowed as a means of regulating commerce among the States. Let us suppose, however, that the opening of roads and cutting of canals are the very best means of facilitating and regulating commerce among the States, and that there is nothing in the language of the Constitution to forbid it; we are still to enquire what farther powers would be necessarily implied, as incidents of this. We find that the power to open [*104] * road through a *State, implies the power to keep it

in repair; to impose fines and penalties on those who injure it, and, consequently, to enforce those fines and penalties by the exercise of a jurisdiction over it. We find also, that the power to make such a road, implies the power to locate it; and, as there is nothing to control the discretion of congress in this respect, there is nothing to forbid them to locate their road, upon the bed of a State canal, or along the whole course of a State turnpike. The effect of this would be to transfer to the United States, against the consent of the State, and without compensation, improvements made by the State within her own territory and at her own expense. Nay, the supremacy claimed for the powers of congress in this respect would, upon the same principle, authorize them to run a road through the centre of a State capitol, or to cover half her territory with roads and canals, over which the State could exert neither jurisdiction nor control. The improvements of individuals too, and of corporate bodies made under the authority of State laws, would thus be held at the mercy of the United States. When we see, then, that this means of regulating commerce among the States would necessarily imply these vast and forbidden powers, we should unhesitatingly reject them as unconstitutional. This single instance, given by way of example and illustration, presents a rule which, if strictly adhered to in all analogous cases, would go far to remove the difficulties, and to prevent the contests, which so often arise on this part of the Constitution. These few simple rules are, in their nature, technical, and may at all times be easily applied, if congress will observe good faith in the exercise of its powers. There is another of a more enlarged and liberal character, which the word “proper” suggests, and which, if applied with sound judgment, perfect integrity and impartial justice, will render all others comparatively unnecessary. It exacts of congress an extended and fair view of the relations of all the States, and a strictly impartial regard to their respective rights and interests. Although the direct action of a granted power, by the means also granted in the Constitution, may be both unequal and unjust, those means would, nevertheless, be perfectly constitutional. Such injustice and inequality would be but the necessary consequence of that imperfection, which characterizes every human institution, and to which those who undertake to prescribe specific rules to themselves, are bound to submit. But when congress are called on to provide new means of executing a granted power, none are “proper,” and therefore none are constitu[*105] tional which operate unequally and unjustly, *among the States or the people. It is true that perfect and exact equality in this respect is not to be expected; but a near approach to it will always be made, by a wise and fair legislation. Great and obvious injustice and inequality may at all times be avoided. No “means” which involve these consequences can possibly be considered “proper,” either in a moral, or in a constitutional sense. It requires no high intellectual faculty to apply this rule; simple integrity is all that is required. I have not thought it necessary to follow the author through his extended examination of what he terms the incidental powers of congress, arising under the clause of the Constitution we are examining. It would be indeed an endless task to do so; for I am unable to perceive that he proposes any limit to them at all. Indeed, he tells us in so many words, that “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 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.” This is, indeed, a sweep of authority, boundless and unrestricted. The “best judgment” of congress is the only limit proposed to its powers, whilst there is nothing to control that judgment, nor to correct its errors. Government is abandoned emphatically to its own discretion; for even if a corrective be supposed to exist with the people, that corrective can never be applied in behalf of an oppressed minority. Are the rules which I have proposed indeed nothing? Is no effect whatever to be given to this word “proper,” in this clause of the Constitution? Can the author possibly be right in supposing that the Constitution would be the same without it as with it; and that the only object of inserting it 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

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