history of the United States is in a large measure a history of the arguments which sought to enlarge or restrict its import. One school of statesmen urged that a lax construction would practically leave the States at the mercy of the National government, and remove those checks on the latter which the Constitution was designed to create; while the very fact that some powers were specifically granted must be taken to import that those not specified were withheld, according to the old maxim expressio unius exclusio alterius, which Lord Bacon concisely explains by saying, "as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated." It was replied by the opposite school that to limit the powers of the government to those expressly set forth in the Constitution would render that instrument unfit to serve the purposes of a growing and changing nation, and would, by leaving men no legal means of attaining necessary but originally uncontemplated aims, provoke revolution and work the destruction of the Constitution itself.[1]
This latter contention derived much support from the fact that there were certain powers that had not been mentioned in the Constitution, but which were so obviously incident to a national government that they must be deemed to be raised by implication.[2] For instance, the only offences which Congress is expressly empowered to punish are treason, the counterfeiting of the coin or securities of the government, and piracies and other offences against the law of nations. But it was very early held that the power to declare other acts to be offences against the United States, and punish them as such, existed as a necessary appendage to various general powers. So the
- ↑ See the philosophical remarks of Story, J., in Martin v. Hunter's Lessee (1 Wheat, p. 304 sqq.).
- ↑ Stress was also laid on the fact that whereas the Articles of Confederation of 1781 contained (Art. ii.) the expression, "Each State retains every power and jurisdiction and right not expressly delegated to the United States in Congress assembled," the Constitution merely says (Amendment x.), "The powers not granted to the United States are reserved to the States respectively or to the people," omitting the word "expressly."
tion into effect. The means best suited at one time may be inadequate at another; hence the need for vesting a large discretion in Congress. . . . 'Necessary and proper' are therefore, as regards legislation, nearly if not quite synonymous, that being 'necessary' which is suited to the object and calculated to attain the end in view." — American Constitutional Law, p. 107.
