George Washington to New Hampshire, 29 December 1777 (Detail, GLC03706) Interpreting the Constitution: McCullough v. Maryland and the "Elastic Clause." by Kenneth Honig Bayside High School McCulough v. Maryland, 17 U.S. 316 (1819) http://www.ashbrook.org/library/ 19/supremecourt/mccullough.html When the Maryland legislature passed a statute that would allow the state to tax the Second Bank of the United States, it gave the Supreme Court the opportunity to rule on the constitutionality of the right of Congress to establish a national bank under the "necessary and proper" clause of Article I of the United States Constitution. ..The first question in the cause is--has Congress power to incorporate a bank?.. ..Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described.. ..To its enumeration of powers [granted to Congress underArticle I] is added that of making 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 thereof. .. [The terms of the necessary and proper clause].. purport to enlarge, not to diminish, the powers vested in the Government. It purports to be an additional power, not a restriction on those already granted. No reason has been or can be assigned for thus concealing an intention to narrow the discretion of the National Legislature under words which purport to enlarge it. The framers of the Constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had they been capable of using language which would convey to the eye one idea and, after deep reflection, impress on the mind another, they would rather have disguised the grant of power than its limitation. If, then, their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these. "In carrying into execution the foregoing powers, and all others," &c., "no laws shall be passed but such as are necessary and proper." Had the intention been to make this clause restrictive, it would unquestionably have been so in form, as well as in effect. The result of the most careful and attentive consideration bestowed upon this clause is that, if it does not enlarge, it cannot be construed to restrain, the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the Constitutional powers of the Government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution if that instrument be not a splendid bauble. We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.. ____ 1. Explain the purposes and functions of a national bank? 2. Why would the United States government want to establish a national bank? 3. Why do you think the framers of the Constitution did not include in the enumerated powers of Congress the right to create a national bank? 4. How does the "necessary and proper" clause aid the function of the Federal government? 5. Should the "necessary and proper" clause be restricted to functions of government that are absolutely necessary? Explain why or why not? 6. How would you define the term "necessary and proper?" If you had the opportunity to draft a constitution would you include the necessary and proper clause, amend it, or omit it? Defend and justify your answer.