MAKEOVER
Examining “Necessary and Proper,” the Jefferson-Hamilton
duel, and Federalism
The story of the post-Declaration
of Independence (1776) Articles of Confederation (1784) is well known.
Bluntly put, the Articles did not work.
Not only was there no
provision for one chief executive for the entire nation, trade barriers erected
by some states against others and other political problems threatened to
kill our new nation in its cradle.
The Constitution of the United
States of America was designed to correct those problems, among others, by
creating a federal union.
The preamble of the
Constitution of the United States of America explicitly states its goal: to
“form a more perfect Union. . . .”[1]
Article I, Section 2, provides
for state-based elections for members of the federal Congress, state residency
for election to federal office, tax apportionment “among the several states,”
at least one Representative from each state, and vacancies in state
representation.
Article I, Section 3,
for two senators from each state, and state residency.
Article I,
Section 8, provides that “The Congress shall have Power To . . . regulate
Commerce . . . among the several States,”
Article II provides for state-appointed
electors to choose the president and vice president of the United States.
Article IV provides that
“Full Faith and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State,” that “The
Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States,” that alleged criminals
can be extradited from one state to
another, that new states may be
admitted “into this Union,” and that
“The United States [the federal
government] shall guarantee to every State in this Union a Republican
Form of Government, and shall protect each of them against Invasion; and . . .
domestic violence.”
Article V provides for
state participation in amendment of the federal Constitution.
Article VI provides that
“This Constitution, and the Laws of the United States [the federal government] which shall be made in Pursuance
thereof; and all Treaties . . . shall be the supreme Law of the Land; and the judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Article VII provides for
state ratification of the federal Constitution.
Although one can argue
that there are some ambiguities in the Constitution, the Preamble’s expressed
intent to create a federal union, and the various examples of it just
referenced, could not be clearer.
And after the
Constitution’s ratification in 1787, if there was any lingering doubt the new
nation was intended to be, and had become, a federal republic — consisting of a
national government made up of constituent states, each of which possessed its
own residual powers — the Tenth Amendment provided “[t]he powers not delegated to the United States [the federal government] by
the Constitution, nor prohibited by it to the States, are reserved to
the States, respectively, or to the people.”
Clearly, there was to be
in our constitutional system, a division of power. Whether it was to be equally
divided, is another matter. Especially in light of Article I, Section 8: “The
Congress shall have Power . . . [t]o 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 [federal] Government of the United
States, or in any Department or Officer thereof.” (My italics.)
What are we to make of
all these provisions?
As I wrote in The
Supreme Court Opinions of Clarence Thomas (1991 – 2011) (2d ed.)[2]
.
. . the Constitution of the United (i.e., combined into one federal
Union) States expressly affirms the existence of reserved powers in the states
and in the people, respectively. Just as the first nine amendments are an
assurance that individual rights were to be protected from the newly formed
federal government, the Tenth Amendment is a guarantee that states and their
citizens would retain their powers as against the national government—except as
to powers expressly granted in the Constitution to the federal government, or
expressly denied to the states.[3]
Federalism matters.
Former Attorney General of
the United States Edwin Meese III has written that “[t]he institutional design
[of the Constitution] was to divide sovereignty between two different levels of
political entities, the nation and the states. This would prevent an
unhealthy concentration of power in a single government. It would
provide, as Madison said in The Federalist No. 51, a ‘double
security . . . to the rights of the people.’ Federalism, along with
separation of powers, the Framers thought, would be the basic principled matrix
of American constitutional liberty. ‘The different governments,’ Madison
concluded, ‘will control each other; at the same time that each will be
controlled by itself’.”
It is believed by some
constitutional law scholars that the most important opinion of the scores
written by John Marshall during his more than thirty years as Chief Justice was
M'Culloch v. Maryland,
the first case to rule on the meaning and scope of the “Necessary and Proper”
Clause.
At the Constitutional
Convention of 1787, the delegates were faced with the task of providing the
government-to-be with specifically enumerated, delegated powers. As to
those of Congress, Article I, Section 8, lists dozens. For example,
Clause 8 delegates to Congress the power “To promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.”
All well and good. But how was Congress supposed to
accomplish that? Indeed, how was Congress supposed to organize the new
government and implement the many powers and tasks delegated to it?
The question was of
crucial importance because under the earlier, no longer acceptable, Articles of
Confederation, it had been provided that “Each state retains its sovereignty,
freedom and independence, and every Power, Jurisdiction and right, which is not
by this confederation expressly delegated to the United States, in
Congress assembled."
The Constitutional
Convention’s Committee on Detail considered the question. One idea was
simply to vest Congress with the power to “organize the government.”
Another was what became the Necessary and Proper Clause. Congress was
empowered:
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
[federal] Government of the United States, or in any Department or Officer
thereof.
These 39 words made many
Americans extremely nervous and unhappy. They had good reason.
In the heated
controversy over ratification of the Constitution, there was vociferous
opposition to the provision, mainly because it was seen as
negating the principle of enumerated, expressly delegated powers which
conceptually underlay the Constitution generally and Article I, Section 8 in
particular.
There were
pro-ratification Federalists, however, who read the Necessary and Proper Clause
broadly, among them co-author with James Madison (and John Jay) of the
pro-ratification essays called The Federalist, Alexander Hamilton.
Accordingly, as
Secretary of the Treasury, in 1790 Hamilton lobbied Congress to charter a
national bank, concededly not an enumerated power of Congress under Article I,
Section 8, of the Constitution, nor indisputably a “let’s get organized” power
such as building post offices. Hamilton wanted the bank for the purpose
of dealing with the nation’s monetary and economic systems.
Hamilton’s bill passed
Congress in February 1791, but President Washington had reservations about its
constitutionality. He asked Hamilton and Jefferson (and Attorney General
Edmund Randolph) to provide written opinions. Hamilton was for the
bank. Jefferson was opposed (as was Randolph).
Predictably, Hamilton in
his Opinion supporting the bank argued 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 ends of such power, and which
are not precluded by restrictions and exceptions specified in the Constitution,
or not immoral or not contrary to the essential ends of political
society. . . .” (Italics in original; my bold.)
As we shall see, the
bolded words are a “switcheroo,” reversing the fundamental promise of the pre-Bill
of Rights —limited government, possessing only enumerated, expressly delegated
powers—much like bait-and-switch in advertising.
Jefferson’s opposition
is essentialized in this passage from his Opinion: “I consider the foundation
of the Constitution as laid on this ground—that all powers not delegated to
the United States, by the Constitution, nor prohibited by it to the states, are
reserved to the states or to the people . . . . To take a single step
beyond the boundaries thus specially drawn around the powers of Congress, is to
take possession of a boundless field of power, no longer susceptible of any
definition.” (Italics in original.)
Note the constitutional
difference between Jefferson and Hamilton. Adverting to “the foundation of the
Constitution,” our President-to-be asked “where is the enumerated, delegated
power for the federal Congress to charter a bank?”
Hamilton, was asking
“where in the Constitution’s Article I, Section 8 (or anywhere else) is a “restriction”
or prohibition for the federal Congress to charter a bank?
The issue was squarely
framed, and although it would take two decades more for the ultimate
constitutional battle to resolve it and undermine Americans’ individual rights,
the principle of limited government and free market capitalism, in the short
term Hamilton’s Opinion prevailed. The bank was chartered, eventually its charter
lapsed, and was not renewed.
However, in 1816
Congress chartered a second Bank of the United States. It established branches in several states,
and thus the stars were aligned for one of the worst Supreme Court decisions/opinions,
the case of M'Culloch v. Maryland.
In 1818, the State of
Maryland enacted a law that taxed the notes of all banks that were not
chartered by the state—i.e., the second Bank of the United States. The
Maryland branch refused to pay the tax, the state sued, and eventually the case
ended up in the Supreme Court of the United States.
While ostensibly the
case was about the tax, the threshold issue for the Court was whether the
Congressional legislation creating the bank was constitutional. The
answer to that in turn depended on whether, under Article I, Section 8, of the
Constitution Congress possessed the power to charter the bank. Indeed,
the second paragraph of Chief Justice Marshall’s opinion in M’Culloch v. Maryland begins:
“The first question made in the cause [case] is—has congress power to
incorporate a bank?”
Marshall
began his opinion by noting there was a legislative precedent for the
bank — the first Bank of the United States — though of course that said nothing
about its constitutionality, let alone the constitutionality of the second
bank.
Next, after
some irrelevant musings about the Constitution’s origins, Marshall had to admit
that everyone agreed the federal government is “one of enumerated
powers.” If one was unaware that staunch federalist Marshall believed in
a strong central government, it might have seemed that Congress’s bank
legislation was on its way to being held unconstitutional. But that was
not to be. Far from it.
After
considerable discursiveness, Marshall finally got to the Necessary and Proper
Clause which, after all, was what the case was all about. Focusing on the
word “necessary,” Marshall opined that:
If reference be had to its use, in the common affairs of the
world, or in approved authors, we find that it frequently imports no more than
that one thing is convenient, or useful, or essential to
another. * * * The word ‘necessary’ . . . 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 the mind receives of the urgency it imports. A thing
may be necessary, very necessary, absolutely or indispensably necessary. To no
mind would the same idea be conveyed by these several phrases. (Italics in
original.)
Here, Marshall’s subjective, “there-are-no-absolutes,”
mind-reading linguistic analysis was attributing to the Framers an intent to
provide in the Necessary and Proper Clause a roaming Congressional commission
in to legislate on virtually any subject it chose. Although paying lip
service to the principle that “the powers of the government are limited, and
that its limits are not to be transcended,” Marshall issued the further
pronouncement that more than any other tersely synthesized his views of the nature
and scope of the Necessary and Proper Clause:
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 that end, which
are not prohibited, but consist with the letter and spirit of the
constitution, are constitutional. (My Italics.)
Hamilton won
again.
The reach of
the Constitution’s Necessary and Proper Clause was henceforth to authorize
Congress to enact laws so long as they were “not prohibited,” and consistent
“with the letter (which the bank legislation surely was not) and spirit (the
enumerated, expressly delegated spirit?) of the Constitution.
There is
much to criticize in John Marshall’s opinion for the Supreme Court in M'Culloch
v. Maryland: His unabashed allegiance to federalist principles,
his rambling detours into constitutional history, his use of non sequiturs,
his begging of questions, his tortured linguistic parsing of “necessary,” his
failure satisfactorily to come to grips with the Necessary and Proper Clause’s
other requirement, “Proper” (which, also, would doubtless have been susceptible
of many meanings).
But the
worst aspect of M'Culloch is Marshall’s too-slick reversal (“not
prohibited”) of the Necessary and Proper Clause’s meaning.
Article I,
Section 8, contains the bulk of Congress’s delegated, limited powers. The
Necessary and Proper Clause allows Congress to implement those powers.
Yet — in construing what he might have more honestly called the “Convenient,
or Useful” Clause — Marshall turned the tables. No longer was the
scope of Congress’s power that which was enumerated and expressly
delegated to Congress in Article I, Section 8. Now, the virtually, if not
actually, unlimited scope of that power was to be whatever was “not
prohibited” to Congress by the Constitution.
And what does
the Constitution expressly prohibit to Congress?
Not much.
Importation
of slaves, and a tax on them of more than $10 each. Enactment of bills of
attainder and ex post facto laws. Certain kinds of capitation, direct,
and export taxes. Port preferences and withdrawal of money from the
treasury without appropriate legislative approval. And, lest we forget,
the granting of titles of nobility.
Thanks to Chief Justice John Marshall’s M'Culloch
opinion in 1819, virtually every conceivable subject has since been
grist for Congress’s Article I mill—with severe consequences for both
republican institutions, limited government, and individual rights.
[1] “Union” is defined as “a combining, joining, or grouping together of nations, states, political groups, etc. for some specific purpose.” Webster’s New World Dictionary of the American Language.
[3] For example,
Article I, Section 10, Par. 1, provides that “[n]o state shall . . . pass any
Bill of Attainder, ex post facto law, of Law impairing the Obligation of
Contracts.” The Supreme Court Opinions of Clarence Thomas, 1991-2011, p.
36.
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