Nothing would be more radically subversive of our institutions than such a usurpation of jurisdiction. If it were consummated, we should be living under an oligarchy, not under a republic.
But we need be under no apprehension that it ever will be. The Supreme Court itself, speaking by the mouth of one of its most distinguished presiding officers, has expressly disclaimed the possession of any such authority.
In the well-known case of McCulloch against the State of Maryland, a Chief justice Marshal delivered by decision of the Supreme Court; and by that decision the following principles were established:
1. The construction of the words "necessary and proper," as employed by the framers of the Constitution in the above connection. The Chief Justice says:
The term "necessary" does not import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other.
2. As to the degree of the necessity which renders constitutional a law framed to carry a constitutional power into execution, the rule by this decision is;
If a certain means to carry into effect any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative direction, not of judicial cognizance.
3. But still more explicitly is the question answered, who is to be the judge of the appropriateness and necessity of the means to be employed, thus;
The Government which has a right to do an act, and has imposed upon it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means.
Thus, then, the matter stands: The powers to lay and collect taxes, to exercise authority over forts and arsenals of the United States, to suppress insurrection, and various others equally essential, are expressly given by the Constitution to Congress. It is the right and duty of Congress to carry these powers into effect. In case of obstruction or defeat of existing laws framed to that intent, it is the right and duty of Congress to select such means and pass such additional laws as may be necessary and proper to overcome such obstruction and enforce obedience to such laws. These means must not be prohibited by the Constitution; but whether they are the most prudent or the most effectual means, or in what degree they are necessarver which the Supreme Court has no jurisdiction. As Chief Justice Marshall has elsewhere in this decision expressed it, for the Supreme Court to undertake to inquire into the degree of their necessity "would be to pass the line which circumscribes the judicial department and to tread on legislative ground."
There must, ofruity or relevancy between the power to be enforced and the means proposed to enforce it. While Congress is to judge the degree of necessity or propriety of these means, they must not be such as to be devoid of obvious connection with the object to be attained.
In this case the objects to be attained are the enforcement of the laws, the suppression of the rebellion, the restoration and preservation of peace, and the maintenance of the national unity.
a February term, 1819; 4 Wheaton's Rep.,316. Unwilling here to multiply words, I pray reference to the decision itself.