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815. This power would have resulted by necessary implication, from the act of establishing a National Government and vesting it with certain powers; as without the necessary and proper means of executing those Powers, the ends proposed by them could never be attained.
816. The plain import of the clause is, that Congress shall have all the incidental and instrumental powers necessary and proper to carry into execution their express powers; and it seems to have been inserted in the Constitution from abundant caution, as it neither enlarges nor restricts any power specifically granted, nor grants any new power ; but is merely a declaration to remove all uncertainty as to whether the means of carrying the powers previously granted into execution, were included in the grant. .
817. Whenever a question arises concerning the constitutionality of a particular power of Congress, the first inquiry is, whether the power be expressed in the Constitution; if it be, all doubt as to its existence, must be at once removed; but if it be not con. tained in terms, in the Constitution, the inquiry then is, whether it be properly an incident to an express power, and necessary to its execution.
818. The question then arises as to the true interpretation of the terms “necessary and proper," —i. e. whether the word “necessary," is used in its closest and most intense meaning, so as to exclude all means except such as are absolutely and indispensably necessary, and without which the grant would be nugatory; or whether these terms allow to Congress a choice of the most convenient and appropriate means, amongst those which are calculated to effect the end.
819. The latter construction has been adopted by all the departments of the National Government, in reference to the Bank of the United States; which was accordingly considered to be constitutionally created under this power, as a known and usual instrument by which several of the specifically enumerated Powers of Congress are exercised.
820. Every Power vested in a Government, is in its nature sovereign, and gives a right to employ all the means fairly applicable to attaining the end of the Power, and not specially excepted from the grant of sovereignty, nor contrary to the essential ends of political society.
821. Although the Government of the United States is one of limited and specified Powers, yet it is sovereign with respect to its proper objects and declared purposes and trusts; and as it is incident to sovereign Power to erect Corporations, it is compe. tent for the Government of the United States to create one in relation to the objects entrusted to its management.
822. The Power of creating a Corporation, though incident to sovereignty, is not a substantive and independent power, but merely an instrument or means by which other objects are accomplished; as a Corporation is never created or used for its own sake, but always for the purpose of effecting some end beyond its mere existence.
823. The implied Powers of Congress are as completely delegated as those which are specifically enumerated, and the power of erecting a Corporation may as well be implied as any other instrument or means of carrying into execution any of the express powers; as the exercise of such a power has a natural relation to the constitutional ends of the Government, in reference to its currency and fiscal operations.
824.- The word “necessary” admits of degrees of comparison, and is often used in various senses; and in giving it a construction, the subject, the context, and the intention, are all to be regarded. A thing may be necessary, very necessary, or absolutely and indispensably necessary; or the word may mean no more than needful, requisite, or conducive to; in which sense it is held to have been used in this clause of the Constitution.
825. To have declared that the best means to carry into effect any specified power, should not be used, but those only without which the power would be nugatory, would have deprived Congress of the capacity to avail itself of experience, or to exercise its reason, and accommodate its legislation to circumstances.
826. If the end be legitimate, and within the scope of the Constitution, all means which are appropriate and plainly adapted to the end, are lawful ; and the Judicial department cannot inquire into the degree of their necessity, without infringing upon the jurisdiction of the Legislature.
827. The next provision for giving effect to the Powers of the General Government, is, II. The declaration that the “ Constitution, and
the Laws of the United States, which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the land ; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding."
828. The propriety of this clause arises from the nature of the Constitution, in establishing a National Government with certain limited powers; as such a Government could not exist or operate effectually on individuals, unless it were supreme in the exercise of those powers. -
829. In all cases where the powers remaining in the States, are so exercised as to come in conflict with those vested in the National Government, it is a vital principle of perpetual operation, that the power which is not supreme must yield to that which is. .
830. In a complex system, like that created by the relation between the Federal and State Governments, measures adopted respectively by the Union and by the States, to execute the acknowledged pow. ers of each, must often be of the same description, and sometimes interfere in their operation.
831. The Ştateš may enact Laws, the validity of which may depend on their not interfering with, or being contrary to, an Act of Congress passed in pur
suance of its constitutional powers; and in all such j cases the inquiry is, whether the State Law has, in
its application, come into collision with the Act of Congress.
832. If an actual collision be found to have taken place between a State Law and an Act of Congress, it is immaterial whether the former were passed by the State Legislature, in virtue of a concurrent power with Congress, or in virtue of a distinct and independent power, relating to a different subject; as in either case, the State Law, and the rights and privi. leges claimed under it, must yield to rights and privileges derived from the Act of Congress.. 833. Although the Government of the Union, in
the exercise of its express powers, may use means which may also be employed by a State in the exer... cise of its acknowledged powers; yet this implies no claim, on the part of the United States, of a direct: power, identical with the authority exercised by the State. ..
: 834. So also, if a State, in passing Laws on subjects acknowledged to be within its control, adopts a measure of the same character with one which Congress may adopt in the execution of any of its enume- ,' rated powers, the State in that case, does not derive its authority from the residuum which it retains of the particular power granted to Congress; but from some other power which remains in the State, and which may be executed by the same means which are used for the execution of the distinct power vested in the Union.
835. The same measures, or measures scarcely distinguishable from each other, may flow from dis.., tinct powers iò the General and State Governments;. but this does not establish the identity of the powers:.
and although the means used in their execution by - each Government respectively, may sometimes apo proach so nearly as to be confounded with each other, .' yet under other circumstances, they may appear :sufficiently distinct to establish the individuality of the powers to which they are subservient. .
836. Questions respecting the extent of the powers : actually granted, and their identity with those retain
ed by the States, are perpetually arising in a judicial form; and in discussing them, the conflicting authorities of the General and State Governments must be brought into view, and the supremacy settled by that power in the Government which was created for the purpose of expounding the Constitution, as well as the Laws.