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must otherwise, as said above, have been understood as passing by the very exigency of the case. I go further. I say, that such a discretionary power as I claim for the National Government—a power to select the proper means for effecting its purposes—cannot, in the very nature of things, be restricted, or controlled, by any cautionary or advisory terms, whatever. It is a mere identical proposition, in import if not in terms, to affirm, that the powers of a Government, or any other agent, are commensurate with the objects prescribed to it, and the duties enjoined on it. Where, therefore, these objects are prescribed, and these duties enjoined, without any specification of the means to be employed in accomplishing them, a discretionary power in the choice of these means, results, of necessity—a power corresponding in duration and extent with these objects and duties. This power grows out of the necessary relations between the agent and his duties; and cannot be changed while these relations subsist. It springs from the primary and fundamental laws of that moral code, which binds alike individuals and communities. Allow, therefore, the terms of this clause to be as restrictive as you please; grant all you claim for them, and more than all; they cannot affect this case in the least. No terms, which the ingenuity of man can devise; can affect it, while the prescribed purposes of the Government remain unchanged, short of a specific renumeration of the means which may properly be employed to effect these purposes. Produce such an enumeration, and all will admit, that the Government is bound . by it. But without this, its discretionary powers remain unchanged. You cannot narrow them. Limit and define as you may, you cannot make that practicable which God and nature have made impracticable. You cannot vest your Government with discretionary powers, and then control and check the exercise by the operation of terms, which, in any practical application to the subject, will be found wide enough to cover the whole debateable ground. Let us look a little at the practical import of this word ‘necessary,’ for on this rests the whole force of the phrase. Any measure, ‘necessary” for the accomplishment of an object, must, of course, be a proper One. Does it then mean that, without which the end could not be obtained? This is the strict import of the word; but, I presume, not the one on which you would insist. For it is quite obvious, that, in very many cases, there may be no means, or set of means, that would answer this definition; no means, for which some substitute might not have been found. There are few measures of Government, which may not be effected—more or less perfectly and beneficially—by various methods. Does it limit the Legislature to the use of such means only as have a “natural and direct’ relation to the object to be effected? Be it so. But how is it to be determined whether any particular measure is of this character? A measure may appear very direct and natural’ to one man, which another would deem altogether indirect and wnnatural. Who is to decide? Does it then, in the last place, imply those means only which involve the least and lowest exertion of power, by which the end can possibly be obtained; even though they should be the most expensive, the most tardy, and the clumsiest of all? But how is even this sense to be as9
certained? A. will think one degree of power requisite, in any given case ; B. another; and so on to the end of the alphabet. How then, is the question to be decided? Are we to enter, in every case, on a course of tentative legislation, in order to find the lowest possible exercise of power required—regulating the impulse and momentum by some new political floodgate, till the golden minimum, the power absolutely necessary, be attained 2 Thus let us view the subject in whatever light we may, we perceive the hopelessness of the attempt to find in this clause the limiting and controlling efficacy, which you assign to it. Begin the argument at whatever point, we must come to the same result at last. One would imagine, from the zeal and confidence with which this clause is perpetually put forward by those on your side of the question, that you regarded it as of great practical consequence; as calculated, according to the interpreration given it, materially to affect the legislation of the country; as a sort of political rail-road, in short, by which the whole motion of the Government was to be kept steady and true to its destined bias. Never was a more palpable mistake. The construction you give to this clause is incapable of any practical application whatever. It may furnish a convenient topic of argument for those who occupy the ranks of opposition; but into the business of any administration, it can never be carried. It is, in fact, a consequence, not a cause, of your system of interpretation; and has been put forward because it has seemed to present a plausible objection to the doctrine of discretionary powers, which the friends of the national government have maintained from the first. We have seen that it is only plausible.
Among the general phrases of the Constitution, we find one empowering the Government to “provide for the common defence, and general welfare.” Unlike the phrase we have been considering, this Anust be regarded by all, as conveying great and most important powers. The two words, “general welfare,” are, indeed, a compendious expression of the whole purpose and design of all governments. To promote the general welfare, then, is to discharge the whole duty devolved on the Government; and it is enough to denominate any measure a wise and good one, to show that it is subservient and conducive to this purpose. This is the sum and substance of the whole Constitution. All its parts and provisions are to be regarded as subsidiary to this; and as pointing out so many ways and methods by which this great end is to be attained; or so many specific objects to be accomplished, in order to its promotion.
What, then, is the meaning of these expressions, ‘common defence’ and ‘general welfare?” What ought to be regarded as their true definition—the full and entire scope of their import? To give a satisfactory answer to this question; one that should embrace all the particular ideas included in the terms, were a difficult undertaking. I certainly shall not attempt it—I shall only offer a few remarks tending to show, that the duties imposed by these terms on the Government, necessarily draw after them the grant of discretionary powers. The former of these expressions, like all others in the Constitution, is subordinate to the latter, and of narrower import. The ordinary measures to be adopted in providing for the defence of a country, such as raising money, levying forces, and building and equipping fleets, are enumerated; and there the enumeration stops. Yet who will say, that this enumeration includes all things that may be done, or all things that must be done, for the defence of a country? I speak not of the multitude of particular powers necessarily implied in each article above enumerated; I speak of powers and objects that, though they have, perhaps, a natural connerion with these, cannot fairly be regarded as included in any one of them. I find here no power for constructing fortifications, for example. Yet this is as clearly a substantive power, to say the least, as that to construct a ‘military road;’ and can no more pass by implication than that. It has to encounter, too, so far as the nature of the case is concerned, the same objections and difficulties on the score of interfering jurisdictions. If, therefore, this cannot be considered as incidental to the power to declare war, and defended on that ground, no more can that. To what then can it be referred? Clearly to no other than the general power to provide for the ‘common defence.” In a practical view, these difficulties are nothiug in either case. But as you have relied much on the argument drawn from this consideration in the one case, I know not how you can escape from it in the other. But no one questions the power of the Government, to build and man fortifications. I find no power, either, for establishing national armouries, or military schools. Yet it will be found no easy task to show, that a power to establish either of these, is not quite as much a substantive power, and as difficult to be brought under either of those enumerated, as the power to construct a military road, or canal—Nay, that it is not as clearly at least, a substantive power, as several of those actually enumerated. You argue from the enumeration in the Constitution, of several subordinate powers, that might fairly have been considered as implied in some more general provision, that it was the intention of the framers to render their specification as complete as possible; so that nothing should be left to implication, or, in other words, to discretion, but such particular acts as the terms of the respective specifications must necessarily include. This reasoning, certainly, will not hold. On this principle, it will be impossible to explain, why specific provision was not made for each of the cases mentioned above. Impossible, I mean, for one who admits their constitutionality; which few, I suppose, will think of questioning. For it is worthy of special attention, that the power to construct fortifications, though not in the number of express provisions, and though it manifestly is not necessarily included in any one of these, is yet distinctly, though indirectly, recognised in another part of the Constitution. Of its constitutionality, therefore, no doubt can be entertained. Yet, surely the power did not pass by this indirect recognition. How then did it pass? Will it be said, that it is a necessary incident to the power to declare war? I conceive not. You, at least, are precluded from taking this ground. It can no otherwise be regarded as incidental to this power, than as it is a convenient—or, if you will, an important— means of waging war successfully. But this consideration, though it would satisfy my principles, will by no means satisfy yours. For it will bring consequences in its train fatal to your whole system. Cases may readily be supposed, in which the construction of a military road, I do not mean in time of actual war, but in time of peace, and as a measure of precaution—would be as important to the public security and defence, as the erection of a fort; a measure, in fact, which it would be the extreme of imprudence and folly, not to adopt. Yet, you say, it could not be done, because no specific provision is made for it in the Constitution; and it is a substantive power, and “cannot pass by imlication.” On what principle it is shown to be a substantive power, am at a loss to conjecture. Be this as it may, it is assuredly no more a substantive power than the other. It is not easy, for me, at least, to determine the principle, on which the list of specified powers, in the Constitution was drawn up. Some *re inserted, which, so far as I can see, might very safely have been left to be inferred; and others omitted, which, on the score of importance, would seem to have had at least an equal claim to the distinction. A power to make laws for the government of the land and naval forces, would seem to be a very natural incident to that of raising and maintaining them. It is quite impossible, that a question could ever have been raised on the subject. Yet it is formally laid down among the special powers; while the right to legislate for the protection of the domestic industry, the agriculture and manufactures, of the whole republic, is neither affirmed nor denied—one or the other of which it would seem very desirable it should have been—but left to be established, if established at all, by inference, and implication. One thing however, is manifest from a view of the whole ground; and that is, that the framers of the Constitution could never have supposed, that their enumeration of subordinate powers had exhausted the general expression. They must have been well aware, that other particulars, more or less important, were left to inference and implication, to be exercised when the public interest should require, according to the dictates of a sound discretion. This is all I am concerned to prove on this point; and of this the single case of the power to construct fortifications is proof undeniable. But the true question after all, as I have more than once intimated, is, not what the convention intended, but what they actually effected. Does their enumeration of particulars in point of fact, include the whole? Does their list of specific powers to be exercised in relation to this object, comprise every thing proper to be done—every power proper to be exercised, in providing for the ‘common defence? We have seen that it does not. We ought then to infer, that it was not their object to enumerate all; or rather, we ought to infer, and must infer, that any particular power, provided it be fairly and obviously conducive to the great end proposed, is not therefore unconstitutional, because it is not expressly enumerated. And this inference is too strong and clear to be set aside even by the fact, should it be adduced, that any specific power was proposed in the Convention, and not adopted. You regard such a fact as conclusive. But it cannot be so. A proposition was brought up in the Convention, more than once, if I mistake not, that Congress "should have power ‘to appoint a Treasurer by ballot;’ another, that they should have power to establish a ‘a National University;’ another, that
there should be a Secretary for domestic affairs, or the home department, whose duty it should be to promote “JManufactures and Internal Improvements, &c.; and another, that Congress should have ‘power to provide such Dock-Yards and irsenals, and erect such Fortifications, as may be necessary.” Not one of these propositions was adopted. According to your doctrines, therefore, they ought to be regarded as alike unconstitutional. Yet strange to tell, though they stand on exactly the same footing, you apply your principles of reasoning to all but the last, and admit that to be correct. The admission—which you cannot avoid making—is fatal to your argument. The phrase, “general welfare,” as already remarked, is of more extensive import than the preceding, and, in its constitutional bearing, still more difficult of definition. Properly speaking, every thing is for the “general welfare,” which works a benefit even to the humblest individual, provided this benefit be not balanced by a greater, or at least an equal measure of evil to some one else. And were the General Government the only one entrusted with the charge of the public weal, every individual case, so far as it was a proper subject of legislation, would come fairly within its competency. But such is not the fact ; and in relation to the powers and duties of the General Government, it is not so easy to fix their import. I doubt whether it is practicable to do this with entire precision. The movements of the general and local Governments in some cases, are, or may be, along the same track. Their respective acts of legislation may embrace subjects of the same class. In practice, if there be ordinary discretion and good temper, on both sides, little difficulty will be likely to ensue. But it is not easy before hand, to mark out the course, and define the objects of each. You have attempted, in your nineteenth number, an elaborate definition of these terms; or rather, of the terms “national interests,” which you seem to assume as equivalent. I have read this with the utmost care; but I am still doubtful whether I have caught your meaning. If you would point out to me where your argument begins, and where it ends; which are premises, and which conclusions—for to my mind ‘ each seems either’—I might enter on the examination with more confidence. If I understand you correctly, you assume the very thing to be proved, viz: That nothing is, or can be, a national object, i. e. an object on which Congress has a right to legislate, which is not specified as such, in the Constitution. If this be so, there is an end of the whole debate. But surely it is any thing but a correct process in logic, to take as the basis of a definition, the very question at issue; and then employ this definition to prove, that nothing which is not embraced by its terms, belongs to the subject. The question is, what Congress may lawfully do in the discharge of its high obligation to promote the ‘general welfare.’ ‘They may legislate,' you say, “on all subjects of national interest, and on no other.” Agreed; but what are subjects of * national interest?” “Those which are specially committed to their care by the Constitution.” This brings us back to the precise point at which our inquiry began. I can make nothing more or less of it, than reasoning in a circle. The question remains just where it was. Your argument does not touch it. You say, in effect, “that no subject can be national in its character,