This expedient alone,
suffices to prevent the existence of that necessity which may justify
the assumption of a non-enumerated power, as a means for carrying into
effect an enumerated one. The thing may be done, and has been done, and
well done, without this assumption; therefore, it does not stand on that
degree of necessity which can honestly justify it.
It may be said, that a bank, whose bills would have a currency all over
the States, would be more convenient than one whose currency is limited
to a single State. So it would be still more convenient, that there
should be a bank whose bills should have a currency all over the world.
But it does not follow from this superior conveniency, that there exists
any where a power to establish such a bank, or that the world may not
go on very well without it. Can it be thought that the constitution
intended, that for a shade or two of convenience, more or less, Congress
should be authorized to break down the most ancient and fundamental
laws of the several States, such as those against mortmain, the laws of
alienage, the rules of descent, the acts of distribution, the laws
of escheat and forfeiture, and the laws of monopoly. Nothing but a
necessity invincible by any other means, can justify such a prostration
of laws, which constitute the pillars of our whole system of
jurisprudence. Will Congress be too strait-laced to carry the
constitution into honest effect, unless they may pass over the
foundation laws of the State governments, for the slightest convenience
to theirs?
The negative of the President is the shield provided by the
constitution, to protect against the invasions of the legislature, 1.
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