Hamilton's "Loose Constructionist" View of the Government's Constitutional Powers

Alexander Hamilton to George Washington, 23 February 1791, labeled "Opinion as to the Constitutionality of the Bank of the United States" (in response to Jefferson's letter to Washington arguing that the proposed national bank is unconstitutional)

    Now it appears to the Secretary of the Treasury that this general principle is inherent in the very definition of government, and essential to every step of the progress to be made by that of the United States, namely: That 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 ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.

. . . it will be incumbent upon those who may incline to deny it, to prove a distinction, and to show that a rule which, in the general system of things, is essential to the preservation of the social order, is inapplicable to the United States.

    The circumstance that the powers of sovereignty are in this country divided between the National and State governments, does not afford the distinction required.  It does not follow from this, that each of the portion of powers delegated to the one or the other, is not sovereign with regard to its proper objects.   It will only follow from it, that each has sovereign power as to certain things, and not as to other things.  To deny that the government of the United States has sovereign power, as to its declared purposes and trusts, because its power does not extend to all cases . . . . would furnish the singular spectacle of a political society without sovereignty, or of a people governed without government.

[Hamilton accepts] the republican maxim, that all government is a delegation of power [by the people]. . . . [but admits that, in his view] implied powers [those not mentioned in the Constitution] are to be considered as delegated equally with the express ones [those specifically granted in the Constitution].

. . . it is objected, that none but necessary and proper means are to employed [the language of the catchall clause at the end of Article 1, Sect. 8, of the Constitution]; and the Secretary of State [Jefferson] maintains, that no means are to be considered as necessary but those without which the grant of power would be nugatory [non-existent or unusable]. . . .

    It is essential to the being of the national government, that so erroneous a conception of the meaning of the word necessary should be exploded.

    It is certain, that neither the grammatical nor popular sense of the term requires that construction.  According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to.   It is a common mode of expression to say, that it is necessary for a government or a person to do this or that thing, when nothing more is intended or understood, than that the interests of the government or person require, or will be promoted by, the doing of this or that thing.

. . . To understand the word as the Secretary of State does, would be to depart from its obvious and popular sense, and to give it a restrictive operation, an idea never before entertained.  It would be to give it the same force as if the word absolutely or indispensably had been prefixed to it.

    Such a construction would beget endless uncertainty and embarrassment. . . .