The Constitution enumerates a great many powers of Congress, ranging from seemingly major powers, such as the powers to regulate interstate and foreign commerce, to seemingly more minor powers, such as the power to establish post offices and post roads. But there are many powers that most people, today or in 1788 (when the Constitution was ratified), would expect Congress to exercise that are not part of those enumerations. The Constitution assumes that there will be federal departments, offices, and officers, but no clause expressly gives Congress power to create them. Congress is given specific power to punish counterfeiting and piracy, but there is no explicit general authorization to provide criminal—or civil – penalties for violating federal law. Several constitutional provisions give Congress substantial authority over the nation’s finances, but no clause discusses a national bank or federal corporations. These unspecified but undoubted congressional powers, and many others, emerge from the Clause at the end of Article I, Section 8, which gives Congress power “[t]o make all Laws which shall be necessary and proper for carrying into Execution” the other federal powers granted by the Constitution. This residual clause—called at various times the “Elastic Clause,” the “Sweeping Clause,” and (from the twentieth century onward) the “Necessary and Proper Clause”—is the constitutional source of the vast majority of federal laws. Virtually all of the laws establishing the machinery of government, as well as substantive laws ranging from antidiscrimination laws to labor laws, are enacted under the authority of the Necessary and Proper Clause. This Clause just might be the single most important provision in the Constitution. At first glance (and keep in mind that first glances are not always last glances), close analysis of the words of the Necessary and Proper Clause suggests three criteria for a federal law to be within its scope: Laws enacted pursuant to the Clause must be (1) necessary, (2) proper, and (3) for carrying into execution some other federal power. Historically, most of the controversy surrounding the meaning of the Necessary and Proper Clause has centered on the word “necessary.” In the 1790s during the Washington administration, and again two decades later in the Supreme Court, attempts to create a national bank in order to aid the nation’s finances generated three competing understandings of what kind of connection with another federal power makes a law “necessary” for implementing that power. Those understandings ranged from a strictly essential connection “without which the [implemented] grant of power would be nugatory” (Thomas Jefferson), to an intermediate requirement of “some obvious and precise affinity” between the implemented power and the implementing law (James Madison), to a very loose requirement allowing any law that “might be conceived to be conducive” to executing the implemented power (Alexander Hamilton). In McCulloch v. Maryland (1819), the Supreme Court’s most famous case interpreting the Necessary and Proper Clause, the Court sided with Hamilton, giving Congress very broad authority to determine what is “necessary” for implementing federal powers. Subsequent cases have been at least as generous to Congress, finding necessity whenever one can imagine a “rational basis” for connecting implementing means to legislative ends. Indeed, no congressional law has ever been held unconstitutional by the Supreme Court on the stated ground that it was not “necessary” to implement a federal power. Until quite recently, the word “proper” played no serious role in constitutional debates about the meaning of the clause. Indeed, a number of Founding-era figures, including such luminaries as Patrick Henry, James Monroe, and Daniel Webster, thought that the word “proper” was surplusage that added nothing to the word “necessary.” In 1997, however, following some academic commentary that sought to give substance to the requirement of propriety, the Supreme Court held in Printz v. United States that a federal law compelling state executive officials to implement federal gun registration requirements was not “proper” because it did not respect the federal/state boundaries that were part of the Constitution’s background or structure. Some later cases extended that holding to other matters involving federal/state relations. In NFIB v. Sebelius (2012), a constitutional challenge to “Obamacare,” the federal health care law, the Court sharply divided over whether a law could ever fail to be “proper” if it did not involve direct federal regulation of state governments or state officials. The subject is likely to be a point of contention in the future. There was also little action until recently regarding what it means for a law to be “for carrying into Execution” another federal power. For a long time, the standard assumption has been that laws can carry federal powers into execution by making other laws grounded in those powers more effective. For example, the Court assumed in Missouri v. Holland (1920) that Congress could use the Necessary and Proper Clause to “carry[] into Execution” the treaty power by implementing and extending the substantive terms of a treaty. In recent years, however, three Justices have followed the lead of certain legal scholars by arguing that carrying the treaty power into execution means providing funds for ambassadors, pens and ink, and travel to foreign nations—in other words, it means making it possible to negotiate, draft, and ratify a treaty rather than to make the treaty more effective once it is negotiated, drafted, and ratified. Again, this subject is likely to be a point of contention in the future. All of the foregoing, however, assumes that the right way to interpret the Necessary and Proper Clause is to pick apart its individual words and give each key term an independent meaning. That is not the only way to interpret the clause. Instead, one might look at the clause as a single, undifferentiated provision and try to discern the range of laws that the Clause, viewed holistically and purposively, tries to authorize. One such vision (reflected in one of our separate statements) sees the Clause as a codification of principles of agency law that allow agents to exercise certain defined powers that are “incidental” to the main objects of the documents that empower the agents. Another such vision (reflected in the other of our separate statements) views the Clause as carrying forward ideas from a resolution adopted by the Constitutional Convention that would allow Congress to legislate “in all cases for the general interests of the Union . . . and in those to which the states are separately incompetent.” If the Necessary and Proper Clause has a relatively broad scope, as the second vision and two centuries of case law has largely maintained, it provides constitutional authorization for much of the existing federal machinery. If it has a narrower scope, as the first vision and a small but vocal group of Justices and scholars maintains, a great many federal laws that have been taken for granted for a long time might be called into question. The correct interpretation of the Necessary and Proper Clause might – just might – be the single most important question of American constitutional law.
Although Thomas Jefferson was in France serving as United States minister when the Federal Constitution was written in 1787, he was able to influence the development of the federal government through his correspondence. Later his actions as the first secretary of state, vice president, leader of the first political opposition party, and third president of the United States were crucial in shaping the look of the nation's capital and defining the powers of the Constitution and the nature of the emerging republic. Jefferson played a major role in the planning, design, and construction of a national capitol and the federal district. In the various public offices he held, Jefferson sought to establish a federal government of limited powers. In the 1800 presidential election, Jefferson and Aaron Burr deadlocked, creating a constitutional crisis. However, once Jefferson received sufficient votes in the electoral college, he and the defeated incumbent, John Adams, established the principle that power would be passed peacefully from losers to victors in presidential elections. Jefferson called his election triumph “the second American Revolution.” While president, Jefferson's principles were tested in many ways. For example, in order to purchase the Louisiana Territory from France he was willing to expand his narrow interpretation of the Constitution. But Jefferson stood firm in ending the importation of slaves and maintaining his view of the separation of church and state. In the end, Jefferson completed two full and eventful terms as president. He also paved the way for James Madison and James Monroe, his political protégés, to succeed him in the presidency.
Writing to William Smith (1755–1816), John Adams' secretary and future son-in-law, Thomas Jefferson seemed to welcome Shays' Rebellion in Massachusetts: “god forbid we should ever be twenty years without such a rebellion . . . the tree of Liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it's natural manure.” Jefferson was confident that rather than repression, the “remedy is to set them right as to facts, pardon & pacify them.” Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#105
Eighteenth-century political philosophers concerned themselves with the balance between the restrictions needed to make a government function and the individual liberties guaranteed by that government. Jefferson's efforts to protect individual rights including freedom of the press were persistent, pivotal, and not always successful. Jefferson was a staunch advocate of freedom of the press, asserting in a January 28, 1786, letter to James Currie (1745–1807), a Virginia physician and frequent correspondent during Jefferson's residence in France: “our liberty depends on the freedom of the press, and that cannot be limited without being lost.” Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#115
Thomas Jefferson's December 20, 1787, letter to James Madison contains objections to key parts of the new Federal Constitution. Primarily, Jefferson noted the absence of a bill of rights and the failure to provide for rotation in office or term limits, particularly for the chief executive. During the writing and ratification of the constitution, in an effort to influence the formation of the new governmental structure, Jefferson wrote many similar letters to friends and political acquaintances in America. Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#106
Thomas Jefferson called the collected essays written by Alexander Hamilton (1755–1804), James Madison, and John Jay (1745–1829), the “best commentary on the principles of government which ever was written.” Jefferson, like many other contemporary Americans, tried to determine which essays had been written by each of the three authors. On this inside cover sheet Jefferson credited Madison with authorship of more than a dozen essays. The question of who wrote each of the essays has never been definitively answered. Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#127
On July 4, 1776, in addition to approving the Declaration of Independence, Congress chose Thomas Jefferson, John Adams, and Benjamin Franklin to design a great seal for the new country. Franklin proposed the phrase “Rebellion to tyrants is obedience to God,” a sentiment Jefferson heartily embraced and included in the design for the Virginia seal and sometimes stamped it on the wax seals of his own letters. Although Congress rejected the elaborate seal, it retained the words “E Pluribus Unum,” which became the country's motto. Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#100
Federal Hall in New York was the site of the meeting of the First Federal Congress in 1789. As secretary of state, Jefferson dealt with Congress here for less than one year before the Federal Government relocated to Philadelphia in 1790, as part of the agreement to create a permanent federal capital district. Jefferson was instrumental in building the national capital district both in his role as secretary of state, and, later, as president. Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#130
Thomas Jefferson's February 15, 1791, opinion on the constitutionality of a national bank is considered one of the stellar statements on the limited powers and strict construction of the Federal Constitution. Alexander Hamilton, a proponent of the broadest interpretation of the constitution based on the implied powers of the Federal Constitution, was the leading advocate for the national bank. Jefferson and Hamilton quickly became outspoken leaders of two opposing interpretations of national government. Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#129 Back to top National Partisan Politics
James Callender's (1758–1803) History of the United States for 1796 was the original public venue for reports of financial dealings by Secretary of the Treasury Alexander Hamilton as well as his 1792 adulterous affair with Maria Reynolds (b. 1768), the wife of James Reynolds, a United States Treasury employee. Jefferson's political lieutenant, clerk of the U.S. House of Representatives, and later first Librarian of Congress John James Beckley was the immediate source of the confidential documents used by Callender to discredit Hamilton. Callender was one of the political pamphleteers supported by Jeffersonians to attack their Federalist opponents. Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#119
President Jefferson's support for freedom of the press was sorely tested in 1802 when James Callender publicly charged that Jefferson “keeps and for many years has kept, as his concubine, one of his slaves. Her name is Sally.” The Richmond Recorder, first printed Callender's account of Jefferson's intimate relationship with his wife's half sister, Sally Hemings, but controversy has surrounded the accusation and the relationship to the present day. Callender, whose vitriolic attacks on Federalist opponents of Jefferson in the 1790s had been secretly funded by Jefferson and Republican allies, turned against Jefferson when the president failed to give him a patronage position.
The Richmond Recorder, September 1, 1802. Courtesy of the Virginia State Library, Richmond (117a) Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#117a
Thomas Jefferson seldom wrote articles or essays for the press, but he did urge his supporters such as James Madison, James Monroe (1758–1831), John Beckley (1757–1807), and David Rittenhouse (1732–1796) to publicly counter the Federalists. In this July 7, 1793, letter, Jefferson urges Madison to attack the ideas of Alexander Hamilton: “for god's sake, my dear Sir, take up your pen, select the most striking heresies, and cut him to peices [sic] in the face of the public.” Both Republicans and Federalists engaged in critical attacks on their opponents. Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#116 The Second American Revolution
Jefferson viewed the presidential election of 1800, which won him the presidency, as a second American Revolution. Jefferson believed in “the true principles of the revolution of 1800. for that was as real a revolution in the principles of our government as that of 76. was in it's form; not effected indeed by the sword, as that, but by the rational and peaceable instrument of reform, the suffrage of the people. The nation declared it's will by dismissing functionaries of one principle, and electing those of another in the two branches, executive and legislative, submitted to their election.” Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#137
Thomas Jefferson was inaugurated third president of the United States on March 4, 1801, after being elected by the House of Representatives on February 17, 1801, on the thirty-sixth ballot in one of the nation's closest and most divisive presidential contests. In this first inaugural address President Jefferson reached out to heal the political wounds by appealing to non-partisan political unification. This draft shows the careful preparation, including the insertion of a paragraph, with key phrases, such as “we are all republicans: we are all federalists,” that are still used in political arenas. Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#138
In his “Sixth Annual Message to Congress” on December 2, 1806, President Jefferson, at the earliest moment allowed by the Constitution, called on Congress to abolish the importation of slaves from outside the United States. The United States Constitution had forbidden Congress to abolish “the Migration or Importation of such Persons as any of the States now existing shall think proper to admit” prior to 1808. Congress readily complied with the president's request and the importation of slaves was prohibited as of January 1, 1808. Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#112
Thomas Jefferson believed strongly in religious freedom and the separation of church and state. While President, Jefferson was accused of being a non-believer and an atheist. Jefferson attended church services in the Capitol and on several occasions expressed his beliefs including this letter explaining his constitutional view. “I consider the government of the US. as interdicted by the constitution from intermedling with religious institutions, their doctrines, discipline, or exercises. this results not only from the provision that no law shall be made respecting the establishment, or free exercise of religion, but from that also which reserves to the states the powers not delegated to the US.” Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#113
In this critical cartoon, Thomas Jefferson as the cock or rooster, courts a hen, portrayed as Sally Hemings. Contemporary political opponents of Jefferson sought to destroy his presidency and his new political party with charges of Jefferson's promiscuous behavior and his ownership of slaves. The cock was also a symbol of revolutionary France, which Jefferson was known to admire and which, his critics believed, Jefferson unduly favored.
James Akin. “A Philosophic Cock,” Newburyport, Massachusetts, c. 1804. Hand-colored aquatint. Courtesy of the American Antiquarian Society, Worcester, Massachusetts (140) Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#140
The conservative Federalist Party still had hopes of regaining the presidency when this anti-Jefferson political cartoon appeared in The Echo, a book critical of Jefferson, published by New Englanders. The creators of the cartoon attempted to link fears of excesses of “republican” mobs, Irishmen, blacks, and Democratic Clubs, such as Tammany Hall. Their effort failed. James Madison, Jefferson's closest political protege was elected the fourth president of the United States.
William Leney after a drawing by Elkanah Tisdale in [Richard Alsop and Theodore Dwight] The Echo, with Other Poems. New York: Porcupine Press by Pasquin Petronius, 1807. Copyprint of engraving. Rare Book and Special Collections Division (142) Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#142
The north wing of the Capitol housed the Congress, the Supreme Court, and Library of Congress when the federal government moved to Washington, D.C. in the fall of 1800. At that time, the north wing, designed to house the United States Senate, was the only finished part of the Capitol. Beyond the Capitol is a view westward towards the President's House and Georgetown. Bookmark this item: //www.loc.gov/exhibits/jefferson/jefffed.html#145 Back to top |
What specific constitutional principle was Alexander Hamilton referring to in this quotation
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