Necessary and Proper?

Tyranny is never too far away from a free people, and nearer is it to an oblivious people than a vigilant one. In the early days of American independence, from our transition from subjugated colonies into free and independent states, and again into a more perfect Union under the U.S. Constitution in 1787, the framers of our government intended to provide us with a feasible Republic. Per the preamble to the Constitution, our voluntary Union of States would be given the blessing of we, the American people, to “establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…” In this manner, our national Constitution acted as a key outline of Government, limited in scope and design, intended to better protect and guarantee the freedom of the United States, in the plural, and the American people who comprise them. It specifies the powers conferred to our Federal Government by the states that ratified it, as well as restrictions upon the powers of the latter per the free consent of their respective peoples. But this begs the question: does the Constitution assign our national government too much power, and if so, how do we protect our personal liberties?

McCulloch v. Maryland

It wasn’t long after the Constitution was ratified in 1789 that an ensuing power struggle between State and Federal authority began to boil over. In 1816, Congress authorized the creation of the Second National Bank to help control the issuance of unregulated state currency; several states challenged the authority of the Federal Government in doing so, and things came to a head in 1818 when the state of Maryland imposed its own taxes against the new National Bank. James W. McCulloch, a Federal Cashier at the Maryland branch of the bank, refused to pay the tax; what then ensued elevated to a Supreme Court case In 1819 which many might remember from their high school history class: McCulloch v. Maryland.

The decision of McCulloch vs Maryland is one of the first of many damning instances where our Federal Government, in a clear conflict of interest, ruled in its own favor over the authority of the states that ratified it. Chief Justice John Marshall ruled in favor of McCulloch, stating that Congress possesses an “implied power” under Article 1, Section 8, Clause 18 of the Constitution, also known as the “necessary and proper” clause, to create a Federal Bank, and that individual states did not have the proper authority to tax the Federal Government.

“[The Congress shall have Power…] To make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Article 1, Section 8, Clause 18 of the U.S. Constitution

Chief Justice Marshall’s decision was arguably a double-edged sword; on the one hand, it prevented the shortcomings of the Articles of Confederation from returning and creating a tax-circular whereby states tax the Federal Government and vice-versa, thus blurring the division of power and impeding a sound economy. Given the rationale that it reaffirmed the Supremacy Clause of Article 6 of the Constitution, it appears to have been a Constitutionally justifiable ruling. On the other hand, however, it set a potentially dangerous precedent whereby the Federal Government ruled to its own advantage over the sovereign authority of State governments. At first, this might not seem to contradict the authority of the Supreme Court as defined in Article 3, Section 2 Clause 1, of the Constitution, which states:

“The judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;-to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

Article 3, Section 2, Clause 1 of the U.S. Constitution

Although it may be argued that the phrase “to Controversies to which the United States shall be a Party” justifies this apparent conflict of interest, it nonetheless calls into question whether or not an interpretation of Article 3 in this instance infringes upon the inherent rights of the States and People per the Tenth Amendment, especially when one remembers that the decision being made here is a Federal ruling that further defines and increases the scope of Federal jurisdiction. How can a judgement that benefits the party which made it be impartial? In short, in can’t.

“The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, as we think, the unavoidable consequence of the supremacy which the constitution has declared.

We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void.”

Excerpt of the opinion of the Supreme Court as delivered by Chief Justice John Marshall, McCulloch v. Maryland

Madison’s Take

To better emphasize both the importance, and limitations, of our Federal Government’s “necessary and proper” authority in the context of original intent, we must first analyze Found Father James Madison’s Federalist No. 41, No. 42, No. 43, No. 44, and particularly Federalist No. 45. Federalist 41-43 deal with the powers conferred to the new Federal Government by the states, Federalist No. 44 deals with restrictions on the authority of the ratifying states with regards to power ceded to the National Government, and No. 45 addresses concerns detractors had regarding the extent to which the Federal Government would take power from the states.

In ratifying the Constitution, the various United States agreed to cede certain powers so that the shortcomings of the Articles of Confederation might be corrected, and interstate conflict could be averted so as to better preserve the inherent rights of the people of the States. Madison extrapolates on this notion here, in Federalist No. 45:

“To the People of the State of New York:

HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States. The adversaries to the plan of the convention, instead of considering in the first place what degree of power was absolutely necessary for the purposes of the federal government, have exhausted themselves in a secondary inquiry into the possible consequences of the proposed degree of power to the governments of the particular States. but if the Union, as has been shown, be essential to the security of the people of America against foreign dangers if it be essential to their security against contentions and wars among the different States; if it be essential to guard them against those violent and oppressive factions which embitter the blessings of liberty, and against those military establishments which must gradually poison its very fountain; if, in a word, the Union be essential to the happiness of the people of America, is it not preposterous, to urge as an objection to a government, without which the objects of the Union cannot be attained, that such a government may derogate from the importance of the governments of the individual States?”

James Madison, Federalist No. 45

Madison knew what we today take for granted: America requires a strong Union to preserve the liberties of its people from adversaries both foreign and domestic; without a sufficient central authority, one state may have ended up declaring war on another, and foreign powers may have been able to easily divide and conquer our Republic. The powers of government discusses herein by Madison, and later codified into law in the Constitution, reflect a necessary and proper function of government, and a balance between Federal and State power. But even though a Federal Government is necessary per this line of thinking, we must again question the decision of McCulloch v. Maryland, and consequently, the implications of a Federal Judiciary that’s able to rule in favor of expanding Federal power. Although the Judicial Branch is separate from the Legislative and Executive Branches, and in theory can’t rule on its own authority, it’s nonetheless a Federal entity ruling on matters concerning the scope of Federal power as weighed against the interests of another party altogether; this is the legal equivalent of a defendant judging the outcome of their own case in a court of law. A plaintiff in such a case wouldn’t have any hope of obtaining a fair and impartial trial, even if they were wronged. So even though such a Federal Government is necessary, it shouldn’t have the legal purview to judge its own cases, as such power can be too easily abused and turned into a tyranny.

Catch-22

The situation we find ourselves in in the aftermath of McCulloch v. Maryland, even to this very day, is a catch-22, if you will, and one that threatens our freedom in its entirety. It must be admitted that James Madison’s wisdom is sound: we need a functioning central government to keep the peace between States and to better guarantee our liberties aren’t stolen from us by a foreign or domestic adversary. But at the same time, the larger our central government gets, and the more jurisdiction it grants itself, the more likely we are to forfeit our rights and extinguish peace altogether to keep it satiated. Without a manner of balance and oversight, and without vigilant, well-educated citizens, how can we ever hope to tame the beast?

We cannot remain a free and independent people if any aspect of our Republic’s Government is granted supreme, uncontested authority, and the power to legislate solely to its own benefit; we cannot afford to allow the “necessary and proper” clause to be improperly applied by our government to expand its purview beyond the scope of our Constitution. This necessary vigilance is made more urgent when one considers the possibility that our government itself may become compromised by foreign adversaries and evil, despotic ideologies. What’s truly necessary and proper of us, as citizens of this nation, is to ensure that we don’t allow our elected representatives, or judges, to assume unconstitutional powers, and use them to deny us the free exercise of our natural rights. These always belong to we, the people.