Supplying the Deficiencies of the Articles of Confederation
The Articles of Confederation stipulated that each state retains “every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” This clause had caused a great deal of problems for the Confederation Congress, because even the exercise of expressly delegated powers often required the exercise of subsidiary powers to carry them into effect. These instrumental powers could not be foreseen and therefore could not be enumerated. As Madison explained in Federalist No. 44, the old Congress was forced to make a choice between two undesirable options. Either they could abide by the strict meaning of “expressly delegated” (in which case they were straitjacketed, as they lacked the powers necessary to carry into execution any of the delegated powers), or they were reduced to interpreting the Articles with great “latitude . . . recurring more or less to the doctrine of construction or implication.” Madison, and the Framers generally, had wanted to forestall the need for this kind of creative interpretation of the Constitution by expressly giving to Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution” the enumerated powers.
Although the Necessary and Proper Clause filled a need that had become evident from their experiences under the Articles of Confederation, it nonetheless became a contentious issue during ratification. The Anti-Federalists in the Virginia Ratifying Debates frequently referred to it as the “sweeping clause.” Patrick Henry alleged that “the sweeping clause will fully enable [Congress] to do what they please” (June 16, 1788). And Tyler declared that “unless this clause were expunged, he would vote against the Constitution.” Madison and other Federalists responded that this clause gave no new powers that were not subsumed under the enumerated powers: “Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause.” Yet Edmund Randolph, the more cautious Federalist, foresaw that there would indeed be difficulties with this clause. While disagreeing with the alarms voiced by the Anti-Federalists, he nonetheless denied that the interpretation of this clause would henceforward be as narrow as many of the Federalists were promising. Constitutions were not the same as laws; “a constitution embraces a number of things, . . . and their construction ought to be liberal” (June 17, 1788). Future debates would center on how “liberal” that construction ought to be.
Washington’s Presidency and the National Bank
This question almost immediately leapt to the center of federal policy when Congress and President Washington’s administration were deciding whether Congress had the power to enact a national bank in 1791. Washington was torn over the constitutionality of this bill, and his two advisors, Thomas Jefferson and Alexander Hamilton, staked out opposing positions. Meanwhile, on the floor of the House, Congressman James Madison was vehemently opposed to the bank bill on constitutional grounds. He argued that the meaning of the Necessary and Proper Clause must “be limited to means necessary to the end.” Quoting from the language used in the preamble of the bank bill, he mocked what they had substituted in place of a defense of the measure’s necessity and propriety: The bill was said to be “conducive to the successful conducting of the finances; or might be conceived to tend to give facility to the obtaining of loans.” “Conducive” and “facility,” he thought, did not meet the test of “necessary and proper.”
Madison moreover argued that his colleagues had not sufficiently grasped a distinction “between a power necessary and proper for the government or union, and a power necessary and proper for executing the enumerated powers.” The Constitution’s Necessary and Proper Clause only referred to the second instance. Even if the Constitution had failed to enumerate a power that was essential to the government, such as the treaty-making power, “the defect could only have been lamented, or supplied by an amendment of the constitution.” (Feb. 2, 1791)
Alexander Hamilton, as Secretary of the Treasury, interpreted the clause very differently in the opinion he submitted to President Washington. Rather than be constrained by Madison’s limitation of a “means necessary to the end,” Hamilton believed it was sufficient to show that the means had “a natural relation” or that it had “an obvious relation to that end.” He argued “that neither the grammatical nor popular sense of the term” necessary required such a narrow construction. He championed instead “this sound maxim of construction; namely, that the powers contained in a constitution of government… ought to be construed liberally, in advancement of the public good.” Hamilton conceded that “the moment the literal meaning is departed from there is a chance of error and abuse,” but he felt that the demands of government warranted that risk. (Feb. 23, 1791)
Chief Justice John Marshall agreed that the word “necessary” admitted of more than one meaning. While its use could mean an absolute necessity “so strong that one thing . . . cannot exist without that other,” it might also mean “no more than that one thing is convenient, or useful, or essential to another” (McCulloch v. Maryland). He noted that when the Framers had elsewhere wanted to indicate the first meaning, they had used the phrase “absolutely necessary” (Art. I, Sec. 10). He therefore gave greater latitude to the Necessary and Proper Clause than most democratic-republicans found acceptable. History has subsequently favored the approach of Hamilton and Marshall over that of Madison and Jefferson, but the controversy by no means ended when these luminaries passed from the scene.