The improvements of individuals,too,and of corporate bodies made under the authority of State laws,would thus be held at the mercy of the United States.When we see,then,that the means of regulating commerce among the States would necessarily imply these vast and forbidden powers,we should unhesitatingly reject them as unconstitutional.This single instance,given by way of example and illustration,presents a rule which,if strictly adhered to in all analogous cases,would go far to remove the difficulties,and to prevent the contests,which so often arise on this part of the Constitution.
These few simple rules are,in their nature,technical,and may at all times be easily applied,if Congress will observe good faith in the exercise of its powers.There is another of a more enlarged and liberal character,which the word "proper"suggests,and which,if applied with sound judgment,perfect integrity and impartial justice,will render all others comparatively unnecessary.It exacts of Congress an extended and fair view of the relations of all the States,and a strictly impartial regard to their respective rights and interests.Although the direct action of a granted power,by the means also granted in the Constitution,may be both unequal and unjust,those means would,nevertheless,be perfectly constitutional.Such injustice and inequality would be but the necessary consequence of that imperfection,which characterizes every human institution,and to which those who undertake to proscribe specific rules to themselves are bound to submit,But when,Congress are called on to prescribe new means of executing a granted power,none are "proper,"and therefore none are constitutional which operate unequally and unjustly among the States or the people.It in true that perfect and exact equality in this respect is not to be expected;but a near approach to it will always be made by a wise and fair legislation.
Great and obvious injustice and inequality may at all times be avoided.
No "means"which involve these consequences can possibly be considered "proper";either in a moral or in a constitutional sense.It requires no high intellectual faculty to apply this rule;simple integrity is all that is required.
I have not thought it necessary to follow the author through his extended examination of what he terms the incidental powers of Congress,arising under the clause of the Constitution we are examining.It would be indeed an endless task to do so;for I am unable to perceive that he proposes any limit to them at all.Indeed,he tells us in so many words,that "upon the whole,the result of the most careful examination of this clause is,that if it does not enlarge,it cannot be construed to restrain the powers of Congress,or impair the right of the legislature to use its best judgment in the selection of measures to carry into execution the constitutional powers of the national government."This is,indeed,a sweep of authority,boundless and unrestricted.The "best judgment"of Congress is the only limit proposed to its powers,whilst there is nothing to control that judgment,nor to correct its errors.Government is abandoned emphatically to its own discretion;for even if a corrective be supposed to exist with the people,that corrective can never be applied in behalf of an oppressed minority.Are the rules which I have proposed indeed nothing?Is no effect whatever to be given to this word "proper,"in this clause of the Constitution?
Can Judge Story possibly be right in supposing that the Constitution would be the same without it as with it;and that the only object of inserting it was "the desire to remove all possible doubt respecting the right to legislate on the vast mass of incidental powers which must be involved in the Constitution,if that instrument be not a splendid pageant,or a delusive phantom of sovereignty?"It was,indeed,the object of the framers of the Constitution "to remove all possible doubt"from this subject.They desired neither a splendid pageant nor a splendid government.They knew that without this restriction ours would be both;and as powerful as splendid.
They did not design that any power with which they thought proper to clothe it should be inoperative for want of means to carry it into execution;
but they never designed to give it the boundless field of its own mere will,for the selection of those means.Having specifically enumerated its powers,as far as was practicable,they never designed to involve themselves in the absurdity of removing,by a single clause,every restriction which they had previously imposed.They meant to assure their agent that,while none of the powers with which they had thought proper to clothe it should be nugatory,none of them should be executed by any means which were not both "necessary"and "proper."
