It was considered necessary,in order to prevent that latitude of construction which was contended for by one of the great political parties of the country,and much dreaded and strenuously opposed by the other.In the Articles of Confederation all "rights,jurisdiction and powers"are reserved,except only such as are expressly delegated:but in the Constitution the word "expressly"is omitted.Judge Story believes,from this fact,that it was the intention of the framers of the tenth amendment to leave "the question,whether the particular power which is the subject of contest,has been delegated to one government or prohibited to the other,to depend upon a fair construction of the whole instrument";doubtless intending by the word "fair,"a construction as liberal as would be,applied to any other frame of government.This argument is much relied on,and is certainly not without plausibility,but it loses all its force,if the omission can be otherwise satisfactorily accounted for.The Constitution provides that Congress shall have power to pass all laws which shall be necessary and proper for carrying into effect the various powers which it grants.If this clause confers no additional faculty of any sort,it is wholly useless and out of place;the fact that it is found in the Constitution is sufficient proof that some effect was intended to be given to it.It was contemplated that,in executing the powers expressly granted,it might be necessary to exert some power not enumerated,and as to which some doubt might,for that reason,be entertained.For example,the power to provide a navy is not,in itself,the power to build a dry dock;but,as dry docks are necessary and proper means for providing a navy,Congress shall have power to authorize the construction of them.But if the word "expressly"had been used in the tenth amendment,it would have created a very rational and strong doubt of this.There would have been,at least,an apparent repugnance between the two provisions of the Constitution;not a real one,I admit,but still sufficiently probable to give rise to embarrassing doubts and disputes.
Hence the necessity of omitting the word "expressly,"in the tenth amendment.
It left free from doubt and unaffected the power of Congress to provide the necessary and proper means of executing the granted powers,while it denied to the Federal Government every power which was not granted.The same result was doubtless expected from this amendment of the Constitution,which was expected from the corresponding provision in the Articles of Confederation;and the difference in the terms employed is but the necessary consequence of the difference in other provisions of the two systems.
Strictly speaking,then,the Constitution allows no implication in favor of the Federal Government,in any case whatever.Every power which it can properly exert is a granted power.All these are enumerated in the Constitution,and nothing can be constitutionally done,beyond that enumeration,unless it be done as a means of executing some one of the enumerated powers.These means are granted,not implied;they are given as the necessary incidents of the power itself,or,more properly speaking,as component parts of it,because the power would be imperfect,nugatory and useless,without them.It is true,that in regard to these incidental powers,some discretion must,of necessity,be left with the government.But there is at the same time,a peculiar necessity that a strict construction should be applied to them;because that is the precise point at which the government is most apt to encroach.Without some strict,definite and fixed rules upon the subject,it would be left under no restraint,except what is imposed by its own wisdom,integrity and good faith.In proportion as a power is liable to be abused,should we increase and strengthen the checks upon it.And this brings us to the enquiry,what are these incidental powers,and by what rules are they to be ascertained and defined?
The only source from which these incidental powers,are derived is that clause of the Constitution which confers on Congress the power "to make all laws which are 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."
The true character of this clause cannot be better given than in the words of Judge Story himself:"It neither enlarges any power specially granted,nor is it a grant of any new power to Congress.But it is merely a declaration,for the removal of all uncertainty,that the means of carrying into execution,those otherwise granted,are included in the grant."His general reasoning upon the subject is very lucid,and,to a certain extent,correct and convincing.
He contends that the word "necessary"'is not to be taken in its restricted sense,as importing absolute and indispensable necessity,but is to be understood in the sense of "convenience,""useful,""requisite";as being such that,without them,"the grant would be nugatory."The dangerous latitude implied by this construction,he thinks sufficiently restrained by the additional word "proper,"which implies,that the means shall be "constitutional and bona fide appropriate,to the end."In all this he is undoubtedly correct;
but the conclusion which he draws from it cannot be so readily admitted.
