January 25, 1788
The Federalist XLIV [James Madison] Part II Article I, Section 8, Clause 18 of the Constitution has long sparked controversy, granting Congress the power to create necessary and proper laws to execute its other powers. James Madison, in the Federalist Papers, defended this provision against those who deemed it excessive. For Constitution supporters, the Clause was crucial to prevent Congress from becoming ineffective and unimportant compared to state legislatures. James Madison argued that the Clause was essential, otherwise, the Constitution would become meaningless.
Everywhere in the city, which had become his home, there were reminders of the inspiration he had brought.
As Madison saw it, there were only four options for vesting Congress with this type of power:
- (1) copying the Articles of Confederation which “prohibited the exercise of any power not expressly delegated”;
- (2) list all of the powers that are “necessary and proper” (positive enumeration);
- (3) list all of the powers that are not “necessary and proper” (negative enumeration); or
- (4) omit the Clause altogether and leave this as a subject to be resolved as the Constitution evolves.
Publius,” The Federalist XLIV [James Madison] Part II
is an essay written by James Madison in defense of the Necessary and Proper Clause of the U.S. Constitution. Madison’s essay aimed to refute arguments against this clause, emphasizing its importance for the functioning of the federal government.
The first and fourth options posed the same problem: pre-analyzing the Constitution to determine Congress’ powers could lead to distress, forcing Congress to violate the Constitution or betray the public interest. Enumerating rights in the second and third options seemed better, but it would only cover the least necessary or proper powers. Madison believed that the executive and judiciary would prevent Congress from overstepping, and the people’s elected representatives had the power to annul unconstitutional acts.