Art. I, sec. 8, par. the last. “To make all laws, which shall be necessary and be 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.”
It is apprehended, that this sweeping clause will afford pretext, for freeing congress from all constitutional restraints.
I will not here again insist on the pledge we enjoy, in the common interest, and sure attachment of the representatives and senate; setting aside the little probability of a majority in each branch lying under the same temptation. Consider the import of the words.
I take the construction of these words to be precisely the same, as if the clause had preceded further and said, “No act of congress shall be valid, unless it have relation to the foregoing powers, and be necessary and proper for carrying them into execution.” But say the objectors, “The congress, being itself to judge of the necessity and propriety, may pass any act, which it may deem expedient, for any other purpose.” This objection applies with equal force to each particular power, defined by the constitution; and, if there were a bill of rights, congress might be said to be the judge of that also. They may reflect however, that every judge in the union, whether of federal or state appointment, (and some persons would say every jury) will have a right to reject any act, handed to him as a law, which he may conceive repugnant to the constitution.
It may nevertheless strike you at first view, that a provision, so obviously apt to excite distrust, might have well [19] been omitted. So indeed it might, were there a possibility of providing every thing, necessary and proper, for carrying into effect the various powers, intended to be conferred. Without this general clause, it were easy to suppose cases, wherein a particular clause might be incompetent to its own purpose.
For want of some plain and obvious distinctions, there has been vented so much senseless clamour against standing armies, that they are become a political bugbear. A limited monarch, with the means of maintaining, at all times, an army devoted to his will, might soon trample on the natural and civil rights of his subjects. Could the present congress find means of augmenting the force, which it now maintains, which of you, on that account, would experience the slightest anxiety? Which of all the European powers is destitute of an army? Which of them if they were free, could be secure of remaining so without a standing force? I might go further, and demand, whether any of them have lost their liberties, by means of a standing army? The troops, continually kept up in Great Britain, are formidable to its neighbors, and yet no rational Englishman apprehends the destruction of his rights. It is true, that he knows, these troops cannot be maintained, without the consent of his representatives, annually obtained. But the necessity of an army he readily conceives; and the number he leaves to the discretion of parliament. Ought then an American to have greater fears of a president, than an Englishman has of his king? Or may he not trust his representatives and the senate, with as much confidence, as the Englishman reposes in the commons and lords?
Let the federal head be constituted as it may, there can be no perfect security, without both a land force, and naval armament. It is impossible to say how much will, at all times of peace, be sufficient. We have the same security against the abuse of this, as of any other authority. The expenses of an army might indeed raise fears of a different kind,—that we shall not be able to maintain force enough for the most proper occasion.
Suppose a limitation in time of peace. What then is to be done on the prospect of a war? Should you make the [20] distinction between profound peace and a threatened war, who is there, but congress, to determine on the exigency? If you make no distinction, then it will be expedient to declare war, at the instant in which the danger shall be conceived, in order that it may be lawful to prepare for only a just defence. In fine, I consider this grand objection, as a mere pretext for terrifying you, like children, with spectres and hobgoblins. It may be material here to remark, that although a well regulated militia has ever been considered as the true defence of a free republic, there are always honest purposes, which are not to be answered by a militia. If they were, the burthen of the militia would be so great, that a free people would, by no means, be willing to sustain it. If indeed it be possible in the nature of things, that congress shall, at any future period, alarm us by an improper augmentation of troops, could we not, in that case, depend on the militia, which is ourselves. In such a case it would be ridiculous to urge that the federal government, is invested with a power over the whole militia of the union. Even when congress shall exercise this power, on the most proper occasions, it is provided in the constitution, that each state shall officer and train its own militia.
The objections against the judiciary are probably more sincere. The article has been generally misconceived, or misrepresented; and after bestowing much attention, I am not certain that I fully comprehend it. I am, however, at length satisfied, that no rational construction can be given to this part of the proposed plan, either to warrant a rejection of the whole, or to place matters on a worse footing, than they are at present.
The judiciary power is to be vested in one supreme court, fixed at the seat of government, with the ease and convenience of the people, the congress may hereafter appoint inferior courts in each of the states. The jurisdiction of this supreme court is to be partly original, and partly appellate. With respect to the extent of either, there can be no possible doubt, as there is neither ambiguity nor uncertainty in the relative expressions. [21].