Article 1, Section 8, Clause 18
[Volume 3, Page 239]
An Old Whig, no. 2Fall 1787Storing 3.3.12--13
These powers are very extensive, but I shall not stay at present to inquire whether these express powers were necessary to be given to Congress? whether they are too great or too small? My object is to consider that undefined, unbounded and immense power which is comprised in the following clause;--"And, 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 offices [officer] thereof." Under such a clause as this can any thing be said to be reserved and kept back from Congress? Can it be said that the Congress have no power but what is expressed? "To make all laws which shall be necessary and proper" is in other words to make all such laws which the Congress shall think necessary and proper,--for who shall judge for the legislature what is necessary and proper?--Who shall set themselves above the sovereign?--What inferior legislature shall set itself above the supreme legislature?--To me it appears that no other power on earth can dictate to them or controul them, unless by force; and force either internal or external is one of those calamities which every good man would wish his country at all times to be delivered from.--This generation in America have seen enough of war and its usual concomitants to prevent all of us from wishing to see any more of it;--all except those who make a trade of war. But to the question;--without force what can restrain the Congress from making such laws as they please? What limits are there to their authority?--I fear none at all; for surely it cannot justly be said that they have no power but what is expressly given to them, where by the very terms of their creation they are vested with the powers of making laws in all cases necessary and proper; when from the nature of their power they must necessarily be the judges, what laws are necessary and proper. The British act of Parliament, declaring the power of Parliament to make laws to bind America in all cases whatsoever, was not more extensive; for it is as true as a maxim, that even the British Parliament neither could nor would pass any law in any case in which they did not either deem it necessary and proper to make such law or pretend to deem it so. And in such cases it is not of a farthing consequence whether they really are of opinion that the law is necessary and proper, or only pretend to think so; for who can overrule their pretensions?--No one; unless we had a bill of rights to which we might appeal, and under which we might contend against any assumption of undue power and appeal to the judicial branch of the government to protect us by their judgements. This reasoning I fear Mr. Printer is but too just; and yet, if any man should doubt the truth of it; let me ask him one other question, what is the meaning of the latter part of the clause which vests the Congress with the authority of making all laws which shall be necessary and proper for carrying into execution ALL OTHER POWERS;--besides the foregoing powers vested, &c. &c. Was it thought that the foregoing powers might perhaps admit of some restraint in their construction as to what was necessary and proper to carry them into execution? Or was it deemed right to add still further that they should not be restrained to the powers already named?--besides the powers already mentioned, other powers may be assumed hereafter as contained by implication in this constitution. The Congress shall judge of what is necessary and proper in all these cases and in all other cases;--in short in all cases whatsoever.
Where then is the restraint? How are Congress bound down to the powers expressly given? what is reserved or can be reserved?
Storing, Herbert J., ed. The Complete Anti-Federalist. 7 vols. Chicago: University of Chicago Press, 1981.
© 1987 by The University of Chicago