Federalist No. 33

Summary

Hamilton answers the two clauses Anti-Federalists considered most dangerous: necessary and proper, and supremacy. He argues that both are declaratory rather than expansive, and that a federal act outside the Constitution’s granted powers is not supreme law at all but a usurpation with no legal force.

Key Passage

But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.

What It Says

The necessary and proper clause grants no new power, only the means of executing granted ones. The supremacy clause elevates only laws made in pursuance of the Constitution.

What It Protects Against

The reading of both clauses as an unlimited grant. Hamilton’s answer is the qualifying language itself, which he treats as the operative limit.

Problem Addressed

Anti-Federalists called necessary and proper the sweeping clause and argued it, combined with supremacy, left the enumeration of powers meaningless.