In Federalist No. 33, Hamilton defends the Necessary and Proper clause, found in Article I, Section 8 of the United States Constitution:
The Congress shall have Power 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.
Hamilton’s main defense of the clause, as Professor Knipprath points out, is to say that the clause merely restates a power that exists with or without the clause.
Driven by curiosity as to why the framers included the controversial words, if the power existed with or without them, I did some research.
I found the following information in the excellent resource book, The Heritage Guide to the Constitution, Edwin Meese III Chairman of the Editorial Advisory Board:
The necessary and proper clause served two purposes in the framers’ minds:
1. to allow the Congress to do what was necessary to organize the government (create executive departments, set the number of Supreme Court Justices, divide out judicial power among courts).
2. to help carry out Congress’s enumerated powers contained in Article I, Section 8.
In his essay on pages 146-150, in The Heritage Guide to the Constitution, David Engdahl tells us the opponents of the Constitution nicknamed this clause the “sweeping clause,” or the “general clause,” and Brutus, their spokesperson, said it “leaves the national legislature at liberty, to do everything, which in their judgment is best.”
Engdahl tells us that James Wilson who authored the clause, explained at Pennsylvania’s ratification convention that he saw the clause as “limited,” and “for carrying into execution the foregoing powers.” Wilson stated that the clause authorizes what is “necessary to render effectual the particular powers that are granted.” In other words, the clause authorizes no more than the powers already enumerated, and is to assist in fully effectuating those powers.
The Necessary and Proper Clause has become the proverbial camel’s nose under the tent, much as the anti-federalists feared. Congress is able to justify certain laws constitutionally by enacting legislation that is within the scope of its enumerated powers, but the same legislation may also affect areas outside of the enumerated powers, adding to the “federal creep,” unintended by the founders and predicted by the anti-federalists. As Professor Knipprath points out, the Necessary and Proper Clause is aptly nicknamed the “elastic clause.”
Hamilton’s answer to this problem is clear,
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”
This is why it is so important that “We The People” are educated, and understand the “just bounds of authority.” If we don’t know the Constitution, how will we know when it is injured?
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Have a great weekend!
Friday, June 11th, 2010