[derosa8]

Does Alexander Hamilton have good ground to stand on when he makes the distinction between “necessary” and “absolutely necessary” in his argument for implied powers?

It seems to me that if we are to argue that “necessary” in the clause means “strictly necessary” then it would not grant the Federal government much of any power.

For example, one could then argue that the Federal Government does not have the power to hire people to organize and oversee tax collection because hiring people is not “strictly necessary.” They could argue, it is not “strictly necessary” because in theory the congressmen themselves could be in charge of going around, collecting, and counting the monies they collect.

Comments? Thoughts?

[cboyack]

Can you provide some citations for where he attempts to make that distinction? I’m assuming it’s in one of the Federalist papers, but I would be interested to go over it and see what (if anything) I can make of it.

[Brion McClanahan]

Hamilton made that distinction in his defense of the BUS in 1791. Here is a link to the text: http://avalon.law.yale.edu/18th_century/bank-ah.asp

As for the question in the OP, this is similar to the distinction between “delegated” in the 10th Amendment and “expressly delegated” as some wanted the language to read and as it read in the Articles of Confederation.

Necessary carries the same meaning as absolutely necessary, just as delegated carries the same meaning as expressly delegated. In regard to the latter, it was argued that way. During the ratifying debates, the so-called “Necessary and Proper Clause” was one of the primary targets of Patrick Henry and other opponents. They claimed it would lead to exactly what Hamilton proposed in 1791 and were assured that the clause could never be expanded or manipulated to include powers not delegated to the Congress by the States through the Constitution. In other words, Hamilton was making this up as he went along, and was betraying his own arguments in the months leading to ratification.

[derosa8]

Mr. McClanahan, thanks for the reply. I think your response holds weight regarding the BUS. However, I don’t think you have dealt with part of the problem of interpreting necessary as “absolutely necessary.”

I know this might seem ridiculous, but trust me that people will come up with very meticulous and often ridiculous arguments against liberty.

For example, multiple clauses in Article I Section 8 deal with punishing various crimes. Suppose one of those crimes is committed and the Federal Government wants to punish the perpetrator.

First, they decide to throw him in jail for 5 years. Are they allowed to erect a Federal Prison in which put him and others committing this crime? Well it’s not absolutely necessary. They could pick a state or local prison in which to put him. Yet is it absolutely necessary to put him in a state or local prison? Couldn’t they just keep him in a locked room in D.C. somewhere?

I guess I’m just struggling with the objection: Nothing is TRULY ABSOLUTELY NECESSARY, so if you want the Fed Govt to have any power at all, then we must allow some elasticity in how we interpret NECESSARY in the necessary and proper clause.

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