agents' judgment, allowing all that freedom in using one means or another to attain the desired end which is needed to ensure success.[1] This, which would in any case be the common-sense view, is fortified by the language of the Constitution, which authorizes Congress "to make 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 or office thereof." The sovereignty of the National government, therefore, "though limited to specified objects, is plenary as to those objects"[2] and supreme in its sphere. Congress, which cannot go one step beyond the circle of action which the Constitution has traced for it, may within that circle choose any means which it deems apt for executing its powers, and is in its choice of means subject to no review by the courts in their function of interpreters, because the people have made their representatives the sole and absolute judges of the mode in which the granted powers shall be employed. This doctrine of implied powers, and the interpretation of the words "necessary and proper," were for many years a theme of bitter and incessant controversy among American lawyers and publicists.[3] The
- ↑ For instance, Congress having power to declare war, has power to prosecute it by all means necessary for success, and to acquire territory either by conquest or treaty. Having power to borrow money, Congress may, if it thinks fit, issue treasury notes, and may make them legal tender.
- ↑ See Gibbons v. Ogden, 9 Wheat, p. 1 sqq., judgment of Marshall, C.-J.
- ↑ "The powers of the government are limited, and its limits are not to be transcended. But 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 consistent with the letter and spirit of the Constitution, are constitutional." — Marshall, C.-J., in M'Culloch v. Maryland (4 Wheat. 316). This is really a working-out of one of the points of Hamilton's famous argument in favour of the constitutionality of a United States bank: "Every power vested in a government is in its nature sovereign, and includes by force of the term a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution." — Works (Lodge's ed.), vol. iii. p. 181. Judge Hare sums up the matter by saying, "Congress are sovereign as regards the objects and within the limits of the Constitution. It may use all proper and suitable means for carrying the powers conferred by the Constitu-
