Page:Nature and Character of our Federal Government.djvu/119

 For example, the power to provide a navy is not, in itself, the power to build a dry dock; but, as dry docks are necessary and proper means for providing a navy, congress shall have power to authorize the construction of them. But if *the word "expressly" had been used in the tenth amendment, it would have created a very rational and strong doubt of this. There would have been, at least, an apparent repugnance between the two provisions of the Constitution; not a real one, I admit, but still sufficiently probable to give rise to embarrassing doubts and disputes. Hence the necessity of omitting the word "expressly," in the tenth amendment. It left free from doubt and unaffected the power of congress to provide the necessary and proper means of executing the granted powers, while it denied to the federal government every power which was not granted. The same result was doubtless expected from this amendment of the Constitution, which was expected from the corresponding provision in the articles of confederation; and the difference in the terms employed is but the necessary consequence of the difference in other provisions of the two systems.

Strictly speaking, then, the Constitution allows no implication in favor of the federal government, in any case whatever. Every power which it can properly exert is a granted power. All these are enumerated in the Constitution, and nothing can be constitutionally done, beyond that enumeration, unless it be done as a means of executing some one of the enumerated powers. These means are granted, not implied; they are given as the necessary incidents of the power itself, or, more properly speaking, as component parts of it, because the power would be imperfect, nugatory and useless, without them. It is true, that in regard to these incidental powers, some discretion must, of necessity, be left with the government. But there is at the same time, a peculiar necessity that a strict construction should be applied to them; because that is the precise point at which the government is most apt to encroach. Without some strict, definite and fixed rules upon the subject, it would be left under no restraint, except what is imposed by its own wisdom, integrity and good faith. In proportion as a power is liable to be abused, should we increase and strengthen the checks upon it. And this brings us to the enquiry, what are these incidental