Editing Necessary and Proper Clause (section)

==National bank==
For several decades after the Constitution was ratified, interpretation of the Necessary and Proper Clause continued to be a powerful bone of contention between the [[Democratic-Republican Party]], the [[Federalist Party]], and several other political parties. The first practical example of that contention came in 1791, when Hamilton used the clause to defend the constitutionality of the new [[First Bank of the United States]], the first federal bank in the new nation's history. Concerned that monied aristocrats in the [[Northern United States|North]] would take advantage of the bank to exploit the [[Southern United States|South]], Madison argued that Congress lacked the constitutional authority to charter a bank. Hamilton countered that the bank was a reasonable means of carrying out powers related to taxation and the borrowing of funds and claimed that the clause applied to activities that were reasonably related to constitutional powers, not only those that were absolutely necessary to carry out said powers. To embarrass Madison, his contrary claims from the ''[[Federalist Papers]]'' were read aloud in Congress:<ref>{{cite book | title=Alexander Hamilton | url=https://archive.org/details/alexanderhamilto00cher | url-access=registration | author=Chernow, Ron | year=2004| publisher=National Geographic Books | isbn=9781594200090 }}</ref>

{{quote|No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included.}}

Eventually, Southern opposition to the bank and to Hamilton's plan to have the federal government assume the war debts of the states was mollified by the transfer of the nation's capital from its temporary seat in [[Philadelphia]] to Washington, DC, a more southerly permanent seat on the [[Potomac River|Potomac]], and the bill, along with the establishment of a [[United States Mint|national mint]], was passed by Congress and signed by President [[George Washington]].<ref>{{cite book|title=A Perfect Union|author-link=Catherine Allgor|author=Allgor, Catherine|year=2006|publisher=Macmillan}}</ref>

===''McCulloch v. Maryland''===
The clause, as justification for the creation of a national bank, was put to the test in 1819 during ''[[McCulloch v. Maryland]]''<ref name="McCulloch">{{cite web |url=http://supreme.justia.com/us/17/316/case.html | title=McCulloch v. Maryland 17 U. S. 316 (1819) | publisher=Justia}}</ref> in which [[Maryland]] had attempted to impede the operations of the [[Second Bank of the United States]] by imposing a prohibitive tax on out-of-state banks, the Second Bank of the United States being the only one. In the case, the Court ruled against Maryland in an opinion written by Chief Justice [[John Marshall]], Hamilton's longtime Federalist ally. Marshall stated that the Constitution did not explicitly give permission to create a federal bank, but it conferred upon Congress an implied power to do so under the Necessary and Proper Clause so that Congress could realize or fulfill its express taxing and spending powers. The case reaffirmed Hamilton's view that legislation reasonably related to express powers was constitutional. Marshall wrote:

{{quote|We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think 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.}}

''McCulloch v. Maryland''<ref name="McCulloch"/> held that federal laws could be necessary without being "absolutely necessary" and noted, "The clause is placed among the powers of Congress, not among the limitations on those powers." At the same time, the Court retained the power of [[judicial review]] established in ''[[Marbury v. Madison]]'' by declaring that it had the power to strike down laws that departed from those powers: "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted {{sic}} to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land."

As Marshall put it, the Necessary and Proper Clause "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted."<ref>''[[McCulloch v. Maryland]]'', [[Case citation|17 U.S. 316, 420]] (1819) quoted in ''[[Printz v. United States]]'', [[Case citation|521 U.S. 898]] (1997) (Stevens, J., dissenting, joined by Souter, Ginsburg & Breyer, JJ.).</ref><ref name=Levy>Levy, Richard.  ''[https://books.google.com/books?id=OEr3Ym3LWgcC&pg=PA104 The Power to Legislate]'', p. 104 (Greenwood Publishing Group 2006).</ref> Without that clause, there would have been a dispute about whether the express powers imply incidental powers, but the clause resolved that dispute by making those incidental powers be expressed, instead of implied.<ref name=Levy />