What,than,are the proper limitations of the power of Congress in this respect?This has always been a subject of great difficulty,and of marked difference of opinion,among politicians.I cannot hope that I shall be able perfectly to disembarrass it;but I think,nevertheless,that there are a few plain rules,the propriety of which all will admit,and which may materially aid us in the formation of a sound opinion upon the subject.
In the first place,then,it is to be observed that Congress has no power under this clause of the Constitution,except to provide the means of executing the granted powers.It is not enough that the means adopted are sufficient to that and they must be adopted bona fide,with a view to accomplish it.Congress has no right to use for the accomplishment of one purpose,means ostensibly provided for another to do so would be a positive fraud,and a manifest usurpation;for,if the purpose be lawful,it may be accomplished by its own appropriate means,and if it be unlawful,it should not be accomplished at all.It is quite obvious that,without this check,Congress may,by indirection,accomplish almost any forbidden object;for among the great variety of means adapted to carry out the granted powers,some may be found equally calculated to effect,either by their direct or indirect action,purposes of a wholly different character and tendency.It is,therefore,of the utmost importance to the preservation of the true principles of the Constitution,that strict faith should be kept upon this point.
In the second place,the means provided must not only be "necessary,"
but they must also be "proper."If the word "necessary"stood alone,it would be susceptible of a very extended meaning,and would probably be considered as embracing powers which it never was in the contemplation of the framers of the Constitution to grant.It was necessary,then,to limit and restrain it by some other word,and the word "proper"was very happily selected.This word requires that the means selected shall be strictly constitutional.In ascertaining this,we must have regard not only to the express provisions of the Constitution,but also to the general nature and character of our institutions.Ours is a free government,which implies that it is also an equal government;it therefore authorizes the employment of no means for the execution of its powers,except such as are consistent with the spirit of liberty and equality.Ours is a confederated government;
it therefore authorizes no means which are inconsistent with the distinct sovereignty of the States,the confederating powers.Ours is a government of "delegated"powers,limited and specifically enumerated;it therefore authorizes no means which involve,in the use of them,any distinct substantive power,not granted.This single rule,if fairly and honestly observed,will go far to remove many serious difficulties upon this point,and will deprive the Federal Government of many important powers which it has hitherto exercised,and which are still claimed for it,by Judge Story,and the whole political world to which he belongs.The propriety and,indeed,the absolute necessity of the rule,appear to me to be obvious.If powers not granted might be used as means of executing the granted powers,it is manifest that no power whatever could be considered as denied.It is not enough that there is no apparent unconstitutionality in the use of such means,in the particular case.
If they involve a principle which will authorize the use of ungranted powers in any other case,they are forbidden by the Constitution.To illustrate this idea by an example:Congress has power to regulate commerce among the several States.This is supposed by some to give them power to open channels of commerce,by making roads,cutting canals etc.through the territories of the States.But this is a substantive power in itself,not granted to the United States,but reserved to the States respectively,and therefore is not allowed as a means of regulating commerce among the States.Let us suppose,however,that the opening of roads and cutting of canals are the very best means of facilitating and regulating commerce among the States,and that there is nothing in the language of the Constitution to forbid it;we are still to inquire what farther powers would be necessarily implied,as incidents of this.
We find that the power to open a road through a State,implies the power to keep it in repair:to impose fines and penalties on those who injure it,and,consequently,to enforce those fines and penalties by the exercise of a jurisdiction over it.We find,also,that the power to make such a road,implies the power to locate it;and,as there is nothing to control the discretion of Congress in this respect,there is nothing to forbid them to locate their road,upon the bed of a State canal,or along the whole course of a State turnpike.The effect of this would be to transfer to the United States,against the consent of the State,and without compensation,improvements made by the State within her own territory and at her own expense.Nay,the supremacy claimed for the powers of Congress in this respect would,upon the same principle,authorize them to run a road through the centre of a State capital,or to cover half her territory with roads and canals,over which the State could exert neither jurisdiction nor control.
