Federalist 44 Part 2
In Federalist #44 Madison reviewed Congressional powers and suggested most of them were non-controversial. He ended the essay with a reflection on the clauses in the Constitution that were anything but non-controversial: the “necessary and proper” clause (oft referred to as “the elastic clause”) and the Supremacy clause, both of which were targets of Anti-federalist worry.
The first clause in its entirety reads as follows: “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.” Madison argued that the clause ought to be non-controversial inasmuch as no Constitution could possibly list everything a Congress ought to do. This inability to list everything, he suggested, came from two sources: one, time and circumstances would change and Congressional power would have to adapt to those changes; and, two, the legislature had to have some wiggle-room to decide exactly how best to exercise one of its enumerated powers.
The latter problem should be fairly obvious. Congress has the authority to coin money but the Constitution is silent on whether it has the authority to purchase precious metals or stamping machines. It is hard to think, however, how Congress could authorize the coining of money without such purchases, meaning that the ability to engage in such purchasing is implied in the granted power.
Implication, however, can prove a tricky thing. The language of “necessity” suggests that Congress should have an implied power to do a thing without which Congress could not exercise an explicit power. A narrow reading of the word “necessary” would say that the power is “necessary” when reason and logic dictate no other possible way of Congress performing its defined role. Since you can’t coin money without metal Congress must necessarily have the power to purchase metals.
What if we had a looser reading of the word “necessary”? In Article I, section 10 the Constitution states that “No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws.” Why the qualifier? Why would the writers of the Constitution use the word “necessary” in the vital clause in Article I, section 8 while seemingly applying a stricter standard two sections later? Did this imply that “necessary” in the former instance demanded a looser interpretation, meaning “conducive to” rather than “that without which”? Hamilton thought so.
As did many of the Anti-federalists who saw the clause as a Trojan horse. Cato, in his fifth essay:
But the convention has superadded another power, by which the congress may stamp with the sanction of the constitution every possible law; it is contained in the following clause–“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.” Whatever law congress may deem necessary and proper for carrying into execution any of the powers vested in them, may be enacted; and by virtue of this clause, they may controul and abrogate any and every of the laws of the state governments, on the allegation that they interfere with the execution of any of their powers, and yet these laws will “be made in pursuance of the constitution,” and of course will “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.”
The writer going by the name of An Old Whig referred to this clause as granting powers “undefined, unbounded, and immense” and contrary to the very idea of limited government that animated American republicanism. Who was to be the judge of what was necessary and proper other than Congress itself, and why would the framers of the Constitution expect any body in possession of power to limit itself? Without a countervailing force, how could Congress be properly restrained, and where would that countervailing force be located except in the states? The lodging of such force, Old Whig argued, would either result in a war between the national government and the state governments or would require the complete subordination of the state governments. The Constitution’s addition of the Supremacy Clause, critics argued, especially considered alongside the necessary and proper clause, guaranteed an expansion of federal power and an attenuation of state power, gradually rendering the states nugatory altogether. To many Anti-federalists, those two clauses acted as a giant pincer that would squeeze out state authority and leave citizens at the mercy of an increasingly unlimited remote and distant power.
Readers may recall learning that the American revolution was sparked by the Stamp tax. Fewer readers may know that Parliament rescinded the stamp tax within six months of having imposed it, but at the same time it rescinded the stamp tax Parliament issued the Declaratory Act, and it was this act that enflamed the American sense of liberty, for in that act Parliament declared that it had absolute authority over American (colonial) affairs, superseding if not negating the colonial governments that colonists had operated under for over a century. To Anti-federalists the combination of the necessary and proper clause and the supremacy clause amounted to little more than a restatement of the Declaratory Act that itself was a precursor to war. Even the British Parliament, however, had no power as vague and menacing as attributing to itself the ability to decide what was “necessary and proper.” Sure, Americans could probably count on their representatives in the near future to be bound by republican sentiments, but “a Congress of a different character” (Federal Farmer) might not exercise the same self-discipline or share the same values.
Once again, Brutus laid out the logic of the case. A national Congress that had the ability to exercise powers that would take power away from the states would find the temptation to do so irresistible, especially if Congress could hide its intentions behind an ambiguous clause. The result would inevitably be the destruction of state governments altogether, for no governing power would willingly limit itself. Brutus thus combined in his reasoning the problem of interpreting the clauses with his sober assessment of human nature:
It is not meant, by stating this case, to insinuate that the constitution would warrant a law of this kind; or unnecessarily to alarm the fears of the people, by suggesting, that the federal legislature would be more likely to pass the limits assigned them by the constitution, than that of an individual state, further than they are less responsible to the people. But what is meant is, that the legislature of the United States are vested with the great and uncontroulable powers, of laying and collecting taxes, duties, imposts, and excises; of regulating trade, raising and supporting armies, organizing, arming, and disciplining the militia, instituting courts, and other general powers. And are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the state governments, and reduce this country to one single government. And if they may do it, it is pretty certain they will; for it will be found that the power retained by individual states, small as it is, will be a clog upon the wheels of the government of the United States; the latter therefore will be naturally inclined to remove it out of the way. Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way. This disposition, which is implanted in human nature, will operate in the federal legislature to lessen and ultimately to subvert the state authority, and having such advantages, will most certainly succeed, if the federal government succeeds at all. It must be very evident then, that what this constitution wants of being a complete consolidation of the several parts of the union into one complete government, possessed of perfect legislative, judicial, and executive powers, to all intents and purposes, it will necessarily acquire in its exercise and operation. [Emphasis added]
The Constitution presented many stumbling blocks to those who wanted to preserve the authority of the states and who also worried that a national government could not be counted on to maintain republican principles. In New York’s ratifying convention, John Lansing recommended that the Constitution be amended to say “no power shall be exercised by Congress, but such as is expressly given by this Constitution; and all others, not expressly given, shall be reserved to the respective states, to be by them exercised.”
By 1791, during the debate over the creation of a National bank, Madison had clarified his interpretation but also retracted in part his more capacious reading in Federalist #44. Hamilton had argued that Congressional power to create a national bank was implied in Article 1, section 8, claiming that “necessary” simply meant “conducive to” or “tended to give facility” for the exercising of an explicit power. Madison rejected such a broad interpretation, arguing that “the essential characteristic of government,” that it was “composed of limited and enumerated powers, would be destroyed” by Hamilton’s broad reading. Hamilton’s suggestion that any means could be used to pursue a given end would “stretch the power” (thus “elastic”) of Congress beyond any discernible limit. Madison saw sophistry at work. “If implications, thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy.”
Jefferson had also opposed the creation of a bank on such linguistic wizardry, putting the issue into its clearest relief:
“It has been much urged that a bank will give great facility, or convenience in the collection of taxes. Suppose this were true: yet 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 allowed to this phrase as to give any non-enumerated power, it will go to every one, for [there] is no one which ingenuity may 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 as before observed. Therefore it was that the constitution restrained them to the necessary means, that is to say, to those means without which the grant of the power would be nugatory.”
The meaning of “necessary and proper” could not be left to mere construction, Madison concluded, for “the doctrine of implication is always a tender one,” “the danger of which has been felt in all systems of government.” “The delicacy was felt in the adoption of our own; the danger may also be felt” if Americans didn’t zealously reject such broad interpretations of federal power. Within three years of ratification Madison, second-guessing himself, admonished his fellow countrymen to “keep close to [their] chartered authorities” in the state governments. Within three years of writing Federalist #44 Madison had his “uh oh” moment. The Anti-federalists had their’s at first reading.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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