114
CONSTITUTION OF THE U. STATES.
[BOOK III.
ing into execution those, otherwise granted, are included in the grant.[1] Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, then it may be exercised by congress. If not, congress cannot exercise it.[2]
§ 1239. But still a ground of controversy remains open, as to the true interpretation of the terms of the clause; and it has been contested with no small share of earnestness and vigour. What, then, is the true constitutional sense of the words "necessary and proper" in this clause? It has been insisted by the advocates of a rigid interpretation, that the word "necessary" is here used in its close and most intense meaning; so that it is equivalent to absolutely and indispensably necessary. It has been said, that the constitution allows only the means, which are necessary; not those, which are merely convenient for effecting the enumerated powers. If such a latitude of construction be given to this phrase, as to give any non-enumerated power, it will go far to give every one; for there is no one, which ingenuity might not- ↑ Some few statesmen have contended, that the clause gave farther powers, than mere incidental powers. But their reasoning does not seem very clear or satisfactory. See Governor Randolph's Remarks, 2 Elliot's Debates, 342; Mr. Gerry's Speech in February, 1791, 4 Elliot's Debates, 225, 227. These Speeches are, however, valuable for some striking views, which they present, of the propriety of a liberal construction of the words.
- ↑ See Virginia Report and Resolutions, Jan., 1800, p. 33, 34; 1 Tuck. Black. Comm. App. 287, 288; President Monroe's Exposition and Message, 4th of May, 1822, p. 47; 5 Marshall's Wash. App. note 3; 1 Hamilton's Works, 117, 121.
