Thomas Jefferson on “implied powers” of the Congress

Constitutional Convention

Thomas Jefferson gave his opinion on the Constitutionality of a national bank on February 15, 1791. In that testament, he not only provided a brilliant legal argument against the institution of a national bank; he also explained the intent of the Constitution’s two most controversial phrases. Today’s political analysts exchange differing opinions on the “general welfare” and “necessary and proper” clauses, but Jefferson’s explanations of them are more than a matter of opinion; they reveal the true intent of the American republic’s framers. Here is Jefferson’s historic opinion (verbatim, even the italics were added by Jefferson–not me–for emphasis):

1. To lay taxes to provide for the general welfare of the United States, that is to say, “to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.

To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.

It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. It is known that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution. A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was, that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution.

2. The second general phrase is, “to make all laws necessary and proper for carrying into execution the enumerated powers.” But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase. It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are “necessary,” not those which are merely “convenient” for effecting the enumerated powers.

Jefferson makes it clear that much of what the Congress does today is not allowed by the Constitution.

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10 Responses

  1. Nicely done.

    I think it was also Jefferson who said: “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents.” Or words to that effect.

    Oh wait, that was Madison. Never mind.

    But still.

  2. [...] is unconstitutional (see part 2 of Jefferson’s argument and replace “bank” with “auto [...]

  3. [...] is unconstitutional (see part 2 of Jefferson’s argument and replace “bank” with “auto loan,” then become [...]

  4. [...] of Article I, Section 8, to broaden the powers of the United States vis-a-vis the States, but that argument is easily dismissed. To lay taxes to provide for the general welfare of the United States, that is to say, “to lay [...]

  5. Wondering if you know the source of the painting on this blog (looks like George Washington holding a document at the Continental Congress)

  6. [...] Jefferson laid down the anti-penumbra argument rather precisely in [...]

  7. Words mean nothing to socialists unless they serve their agenda.

    • Words mean nothing to Republicans unless they serve their agenda.

      • That’s what I wrote. Do I have to specify Social Democrats AND Republican Socialists every time?
        “Socialists” is all-encompassing.
        Even Ron Paul (and, I think, Rand Paul) assures everyone that he is not opposed to the Socialist “Security” Scheme; that he wants to stabilize it so that it will endure.
        Well, as long as the federal government can find any assets to seize, the SS debit cards will work. The oldsters will make sure of that. No congressman dares say a thing that causes the slightest feeling that (s)he is not totally committed to the SS scheme, or the oldsters will swarm the polls and vote him/her OUT. IF they don’t meet him/her at the airport with a custom “necktie” first!

  8. [...] Jefferson addressed by ably and will merely post in here with a link to the blog where I found. You can also read Jefferson quotes on this topic on a Ron Paul [...]

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