1. CHLOE SMITH
Interpretations of the
Necessary and Proper
Clause
POLS 350B: American Political Thought and
Contemporary Policy Applications
James Read
4/19/2013

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The necessary and proper clause, or elastic clause, is found in Article I, Section 8 of
the Constitution, Congress has the power "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 any Department or Officer
thereof". The first debate of what powers are enumerated by the necessary and proper
clause was brought up during the dialogue of the creation of a national bank. Those in the
forefront of the discussion were Alexander Hamilton and Thomas Jefferson. Hamilton
believed that the clause should be taken loosely and that a bank should be created, whereas
Thomas Jefferson believed that the clause should be looked at strictly and the bank should
not be created. Although Alexander Hamilton makes a compelling argument; I believe that
Thomas Jefferson’s interpretation of the elastic clause is more persuasive. I would
recommend that today’s questions on construction of power be settled using Thomas
Jefferson’s philosophy.
Alexander Hamilton’s opinion as to the constitutionality of the Bank of the United
States was that it was within the constitutional right of Congress to create a national bank.
In regards to sovereignty and the creation of laws Hamilton argued, “This general and
indisputable principle puts at once an end to the abstract question, whether the United
States have power to erect a corporation, that is to say, to give a legal or artificial capacity
to one or more persons, distinct from the natural,” (Hamilton, Yale). Although the power to
create a corporation is not specifically stated in the Constitution Hamilton considered the
case of creating a national bank to be necessary and proper. Specifically on the matter of
implied and expressed powers Hamilton stated, “It is conceded that implied powers are to
be considered equally with express ones,” (Hamilton, Yale). Hamilton clearly feels that

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expressed powers, like declaring war or levying taxes, are put on the same level as
unexpressed powers. He believed erecting a national bank to be an implied power given by
the elastic clause, just as today we have a minimum wage law even though it is not
mentioned anywhere in the Constitution.
Obviously, Hamilton took the idea of taking advantage of using implied powers quite
seriously. Hamilton argued for a bank that would be a partly public and partly private
entity. This particular design could bring about a lot of problems because by partially
privatizing the national bank those citizens who invested in the bank would have greater
pull in the government over regular citizens. If there was potential for a stake holder in the
bank to leave because his preferred politician was not elected or a bill was presented that
he opposed the need to keep the bank open could outweigh what the greater population
wanted. It can be seen with his view on implied powers in conjunction with his push for
the creation of the national bank that Hamilton had a terribly loose idea of the necessary
and proper clause. Hamilton considered necessary to be defined as ‘convenient’ and proper
meaning that it does not infringe on a different power mentioned in the Constitution.
Thomas Jefferson’s opinion the constitutionality of the national bank was that it was
not constitutional. Jefferson stated, “I consider the foundation of the Constitution as laid on
this ground: That ‘all powers not delegated to the United States, by the Constitution, nor
prohibited by it to the States are reserved to the states of to the people.’[Xth amendment.]
To take a single step beyond the boundaries thus specially drawn around the powers of
Congress, is to take possession of a boundless field of power, no longer susceptible of any
definition,” (Jefferson, Yale). This statement by Jefferson clearly displays that he wanted to

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protect the people from an overbearing government. A government that takes
unenumerated powers is no better than a tyrant. By setting up an interpretation of the 10th
amendment that truly does not give Congress any extra or undeserved powers the question
of ‘who has what power’ can be handled effectively without putting the rights of the
American people at risk. Jefferson continues, “The incorporation of a bank, and the powers
assumed by this bill, have not, in my opinion been delegated to the United States by the
Constitution,” (Jefferson, Yale). Again Jefferson is shielding the people from a government
that oversteps the line of power with powers not mentioned in Article one of the
Constitution. Again, with this statement it is clear that Jefferson much prefers a strict
reading of the elastic clause than Hamilton because Jefferson strongly feels that the
creation of this bank is not within the powers of Congress at all.
One important concern observed by Thomas Jefferson is the ‘slippery slope effect’
meaning that if the government, in this situation, were to give itself the power to create a
national bank then they will continually give themselves more and more powers that are
not necessary—making the government too powerful and potentially tyrannical. On this
Jefferson states, “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,” (Jefferson, Yale). It is clear that Jefferson felt a loose
interpretation would eventually hurt the United States because the potential for the
congressmen to become drunk with power and not act with their constituents interests in
mind.

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Another important point that Jefferson bring up inregards to interpretation of the
“necessary and proper” clause is that, “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,” (Jefferson, Yale). It is clear here that Jefferson
does not define necessary as ‘convenient’ like Hamilton but rather as ‘essential’ meaning, in
this case, that the country would not survive without the creation of a bank—obviously
Jefferson did not see this bank as essential or vital to the infrastructure of the United States.
Jefferson felt that being too flexible with the term ‘necessary’ could give too much power to
Congress—which is obviously something he wanted to avoid.
Additionally, Jefferson points out a flaw in the point made by Hamilton that
Congress cannot create a corporation, “A proposition was made to them [delegates at the
Constitutional Convention] 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 on the subject, adverse to the
reception of the Constitution,” (Jefferson, Yale). Not only does this point illustrate that the
creation of a national bank went against the original plans of the delegates of the
Constitutional Convention but also that this could potentially give some voters more power
than other. This issue of power would arise from wealthy voters investing their money in
the national bank and then pushing for their personal agendas because the bank requires
their money to function.

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After looking at all of these points brought up by Hamilton and Jefferson I find
Jefferson’s argument to be more persuasive. Although Hamilton makes a good case for a
loose interpretation of the ‘necessary and proper clause’, the framers could never foresee
all of the potential questions of power that would arise from it. This particular issue is
what makes the elastic clause so important, but how the term ‘necessary’ is interpreted is
very important. I found Jefferson’s argument, which ultimately defined necessary, to be far
more convincing than Hamilton’s because Jefferson was able to display that the Framers
were opposed to Congress creating corporations and the national bank would be
considered a corporations. Hamilton’s idea of loose interpretation is of course appealing
because it offers so much more power to Congress. But, it is crucial to remember that a
tantalizing issue for the founding fathers was how to move away from a the Articles of
Confederation and create a government that could actually govern without giving too much
power to said government—so no matter how appealing the creation of power is it must be
avoided if not necessary. Jefferson’s strict definition of necessary is far more persuasive
because it leaves fewer possibilities open for people to take advantage of implied powers.
Jefferson’s argument also appears to align with the ideals of the framers more so than
Hamilton because of a bank being a corporation and the framers not being in favor of the
power to incorporate. Although the creation of a bank would have been nice and helpful, as
Jefferson stated it was not necessary but rather a convenient power.
If needed, I would recommend Jefferson’s philosophy on the necessary and proper
clause over Hamilton’s. Obviously, after over 200 years with a national bank and not being
able to imagine what the United States would be like without “The Fed”, Hamilton’s
philosophy of loose interpretation has not hurt the United States but I still do think that a

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strict interpretation would be better for the United States of issues of construction arose. I
feel this way because Americans today have little faith in the government and because it is
better to be safe rather than sorry and a strict interpretation keeps the government in
check for those who question it or worry about its power.
Today the average American has little faith in the government. Despite that most
Americans have the opportunity to vote and choose who they have running the country few
believe in those elected officials. A survey done by National Election Studies found that
69.4% of Americans felt that they could only trust their government some of the time or
never. (Microcase, NES 321). For this reason I believe that strict interpretation of the
necessary and proper clause would be more appropriate because the less power the central
government is giving to itself on implied power the less reason these faithless citizens
would have for questioning the motives of government. A government that turns down
power appears to have the interest of its citizens at heart where as a government that
creates more power for itself appears to have only the interest of power at heart.
Additionally, I feel that the government should keep itself in a position of safety. It
would be better to interpret the Constitution strictly and then need to reassess a situation
afterwards and delegate more power than to go overboard. This issue of power is
constantly seen within the presidency, few people are ever comfortable with the idea of
giving one branch of government too much discretionary power. Therefore I, like Jefferson,
am leery of a slippery slope from allowing too many “implied” powers being created and
giving the central government an unnecessary amount of power.

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To conclude, Hamilton raises excellent points as to why the bank should be created
and how the necessary and proper clause should be interpreted, but, I feel that Jefferson
was more persuasive. I feel this way because of Jefferson’s definition of necessary, his
referral to the Constitutional Convention, and the impact of the slippery slope. As I find
Jefferson more persuasive I also feel that his philosophy should be looked at for questions
of federal power today because a strict and limited government is safer than a government
that has too much power.

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Bibliography
Alexander Hamilton, “Opinion on the Constitutionality of a Bank” (1791).
http://avalon.law.yale.edu/18th_century/bank-ah.asp
“The Constitution of the United States” (1788).
"MicroCase Software Download." MicroCase Software Download. N.p., n.d. Web. 13 Apr.
2013.
Thomas Jefferson, “Opinion on the Constitutionality of a Bank” (1791).
http://avalon.law.yale.edu/18th_century/bank-tj.asp