The "Necessary and Proper" Clause Could Become an Engine for Oppression

16 June 1788

MR. GEORGE MASON. Mr. Chairman—Gentlemen say there is no new power given by this clause. Is there any thing in this constitution which secures to the states the powers which are said to be retained? Will powers remain to the states which are not expressly guarded and reserved? I will suppose a case. Gentlemen may call it an impossible case, and suppose that congress will act with wisdom and integrity. Among the enumerated powers, congress are to lay and collect taxes, duties, imposts, and excises; and to pay the debts, and provide for the general welfare and common defence; and by that clause (so often called the sweeping clause) they are to make all laws necessary to execute those laws. Now suppose oppressions should arise under this government, and any writer should dare to stand forth and expose to the community at large, the abuses of those powers. Could not congress, under the idea of providing for the general welfare, and under their own construction, say, that this was destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not, in order to provide against this, lay a dangerous restriction on the press? Might they not even bring the trial of this restriction within the ten miles square, when there is no prohibition against it? Might they not thus destroy the trial by jury? Would they not extend their implication? It appears to me that they may and will. And will the support of our rights depend on the bounty of men whose interest it may be to oppress us? That congress should have power to provide for the general welfare of the union, I grant. But I wish a clause in the constitution with respect to all powers which are not granted, that they are retained by the states. Otherwise the power of providing for the general welfare may be perverted to its destruction.

Many gentlemen whom I respect, take different sides of this question. We wish this amendment to be introduced to remove our apprehensions. There was a clause in the confederation reserving to the states respectively, every power, jurisdiction, and right, not expressly delegated to the United States. This clause has never been complained of, but approved of by all. Why not then have a similar clause in this constitution, in which it is the more indispensably necessary than in the confederation, because of the great augmentation of power vested in the former? In my humble apprehension, unless there be some such clear and finite expression, this clause now under consideration will go to any thing our rulers may think proper. Unless there be some express declaration, that every thing not given up is retained, it will be carried to any power congress may please.

[Henry then moved that the clerk read "from the eighth to the thirteenth" articles of the Virginia Declaration of Rights, after which Nicholas observed that the "necessary and proper" clause actually gave Congress no new powers but only the means of implementing the enumerated powers for paying public debts and providing for the national defense. Randolph was not overly pleased with the clause, but its acceptance was preferable to the alternative—anarchy. . , .]

MR. GEORGE MASON, still thought that there ought to be some express declaration in the constitution, asserting that rights not given to the general government, were retained by the states. He apprehended that unless this was done, many valuable and important rights would be concluded to be given up by implication. All governments were drawn from the people, though many were perverted to their oppression. The government of Virginia, he remarked, was drawn from the people; yet there were certain great and important rights, which the people by their bill of rights declared to be paramount to the power of the legislature. He asked, why should it not be so in this constitution? Was it because we were more substantially represented in it, than in the state government? If in the state government, where the people were substantially and fully represented, it was necessary that the great rights of human nature should be secure from the encroachments of the legislature; he asked, if it was not more necessary in this government, where they were but inadequately represented? He declared, that artful sophistry and evasions could not satisfy him. He could see no clear distinction between rights relinquished by a positive grant, and lost by implication. Unless there were a bill of rights, implication might swallow up all our rights.

Source: (Rutland, The Papers of George Mason, Vol. III., p.1083-1085. (1970)).