CH. XXIV.]
POWERS OF CONGRESS—INCIDENTAL.
115
torture into a convenience in some way or other to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one phrase. Therefore it is, that the constitution has restrained them to the necessary means; that is to say, to those means, without which the grant of the power would be nugatory. A little difference in the degree of convenience cannot constitute the necessity, which the constitution refers to.[1]
§ 1240. The effect of this mode of interpretation is to exclude all choice of means; or, at most, to leave to congress in each case those only, which are most direct and simple. If, indeed, such implied powers, and such only, as can be shown to be indispensably necessary, are within the purview of the clause, there will be no end to difficulties, and the express powers must practically become a mere nullity.[2] It will be found, that the operations of the government, upon any of its powers, will rarely admit of a rigid demonstration of the necessity (in this strict sense) of the particular means. In most cases, various systems or means may be resorted to, to attain the same end; and yet, with respect to each, it may be argued, that it is not constitutional, because it is not indispensable; and the end may be obtained by other means. The consequence of such reasoning would be, that, as no means could be shown to be constitutional, none could be adopted.[3] For instance, con-- ↑ 4 Jefferson's Corresp. 525, 526; 4 Elliot's Deb. 216, 217, 224, 225, 267; M'Culloch v. Maryland, 4 Wheat. R. 412, 413.
- ↑ Hamilton on Bank, 1 Hamilton's Works, 119; 5 Marshall's Wash. App. notes, p. 9; Mr. Madison, 4 Elliot's Deb. 223.
- ↑ United States v. Fisher, 2 Cranch, 358; 1 Peters's Cond. R. 421; Hamilton on Bank, 1 Hamilton's Works, 119; 5 Marshall's Wash, note 3, p. 9, 10; Mr. Madison, 4 Elliot's Deb. 223.
