Tuesday, June 2, 2020


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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