Opinion of Thomas, J.
ilton posed the question who would “judge . . . the necessity and propriety of the laws to be passed for executing the powers of the Union” and responded that “[t]he propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded.” The Federalist No. 33, pp. 203–204. For example, a law that “exceeded [Congress'] jurisdiction” and invaded the authority of the States would not meet that standard. Id., at 204. Similarly, an “impartial citizen” wrote in a Virginia newspaper that, even if the governmental powers could not “be executed without the aid of a law, granting commercial monopolies, inflicting unusual punishments, creating new crimes, or commanding any unconstitutional act,” thus making the law necessary to the execution of a power, “such a law would be manifestly not proper,” and not “warranted by this clause, without absolutely departing from the usual acceptation of words.” An Impartial Citizen V, Petersburg, Va., Gazette, Feb. 28, 1788, in 8 Documentary History of the Ratification of the Constitution 428, 431 (J. Kaminski & G. Saladino eds. 1988) (emphasis deleted).
Early interpretations of the Clause following ratification largely confirm that view. Lawson & Granger, supra, at 298–308. During debate on the Bank of the United States in the First Congress, for example, Representative Ames declared that the correct construction of the Necessary and Proper Clause “promotes the good of the society, and the ends for which the Government was adopted, without impairing the rights of any man, or the powers of any State.” 2 Annals of Cong. 1906 (1791). During the Second Congress, Representative Niles railed against a bill that would have authorized federal mail carriers to transport passengers for hire in order to reduce the cost of the mails. He said that such a law would not be “proper” to the power to establish post offices and post roads because some States had “an exclusive right of carrying passengers for hire” and an interpretation of the word “proper” that would allow the bill
