Agreed. Allowing perjury is not a swift idea. However, the problem is that Jefferson didn't think that Congress had the constitutional power to enact a "swift idea" unless it was also strictly necessary for the exercise of a specified power. In his view, Congress did not have the authority to pass laws "which are merely 'convenient' for effecting the enumerated powers."
Likewise, they can safely say as a matter of principle that in order to outlaw certain activities, it is not necessary to outlaw ancillary activities.
We can't even have an Inaugural Parade without prohibiting certain traffic. While it is not always strictly necessary to outlaw certain activities, it often is necessary to do so, by anyone's definition of "necessary." And quite often, outlawing ancillary activities makes it more "convenient" for the exercise of specific powers.
Do you really think that judges can become involved in separating the "necessary" from the merely "convenient" means of exercising specific powers without introducing into the equation their own personal notions of which laws consist of "swift ideas" and which do not? I suspect that that is all that you would get if you could find a way to force judges to enter that swamp.
It just isn't, and it clearly involves the creation of a new power altogether, not an adjunct to an existing power. That is what "necessary and proper" means.
There isn't any way for me to tell you that your desire for a more "activist" Supreme Court is constitutionally right or wrong. All that I have tried to do is to provide you with some of the reasons for which the Court has been reluctant to move in that direction.
Returning to the Voting Rights Act, the Congress made the factual determination that the suspension of literacy tests was "necessary" in order to enforce the Fifteenth Amendment. You have suggested an "alternative means" that Congress might have chosen to enforce the amendment (passing laws which might require a separate judicial proceeding for each alleged violation by each alleged victim). It is entirely possible that the means you would have selected might have eventually worked. The means that Congress selected did work. Except to the extent that one of two alternatives violates a specific prohibition in the Constitution, the judiciary is very unlikely to become involved in the choice between two alternative means. Courts view that as a legislative function which is none of their business. So, if you were inclined to want to convince the Supreme Court that the Voting Rights Act is unconstitutional, your best bet would be to find a specific constitutional prohibition in which to frame your argument.
Tenth Amendment?
Before we go any further, something needs to be cleared up. A judge who doesn't shy away from legal questions that are properly under his purview isn't an "activist" judge, he's simply a judge who's doing his job. Activist judges are judges who rule on the basis of their personal opinions, rather than their legal sense.
Do you really think that judges can become involved in separating the "necessary" from the merely "convenient" means of exercising specific powers without introducing into the equation their own personal notions of which laws consist of "swift ideas" and which do not?
There are some very common-sense ways of determining what "necessary and proper" is and is not. For one thing, any law that protects against violence or fraud that directly disrupts the administration of law would be valid, and perjury would certainly fall under that category. But I don't intend to speculate too much on how judges would rule. I'm sure there would be many in the present judiciary who don't know a solid principle from a PC conceit, just as there are many who don't seem to understand the meaning of the word "process". But all I know is how they should rule - that is, what I expect of them.
In order to outlaw certain activities, it is not necessary to outlaw ancillary activities.
We can't even have an Inaugural Parade without prohibiting certain traffic. While it is not always strictly necessary to outlaw certain activities, it often is necessary to do so, by anyone's definition of "necessary." And quite often, outlawing ancillary activities makes it more "convenient" for the exercise of specific powers.
Your response doesn't really answer my point. I was saying that in order to outlaw certain activites, there's no need to outlaw other activities. That's different from exercising other powers, such as those that involve performing a particular physical task (such as an inaugural ball). In those cases, it may be necessary to outlaw certain activities that obstruct that task. But that has nothing to do with enforcement of the 15th amendment.
Returning to the Voting Rights Act, the Congress made the factual determination that the suspension of literacy tests was "necessary" in order to enforce the Fifteenth Amendment. You have suggested an "alternative means" that Congress might have chosen to enforce the amendment (passing laws which might require a separate judicial proceeding for each alleged violation by each alleged victim). It is entirely possible that the means you would have selected might have eventually worked.
I don't know if you were intimating that "passing laws which require a separate judicial proceeding for each alleged violation by each alleged victim" is some kind of quaint, off-the-cuff idea, but I should remind you that that's the way our whole system of law works. Our laws against murder, theft, drunk driving, money laundering, etc., all work according to that very principle. "Necessary and proper laws", if that means anything, means laws that conform to the basic principles of law that our society is built on, not just grabbing whole new powers just because you don't want to deal with all that due process stuff.
The means that Congress selected did work.
So? Congress also has nearly unrestricted power to legislate for the District of Columbia. Suppose they want to outlaw SUV's in the district. Well, it would sure make it a lot easier if they could just outlaw SUV's anywhere within a 100-mile radius of the city, wouldn't it? But they're clearly stepping into new zones of power by doing that. Any judge with common sense could see that - regardless of how many studies and how much testimony they receive, moaning about how difficult it is to enforce compliance with all these out-of-towners coming in and out, blah, blah, blah.
Except to the extent that one of two alternatives violates a specific prohibition in the Constitution, the judiciary is very unlikely to become involved in the choice between two alternative means.
Which makes a total mockery of the principle of limited, delegated powers. In case you didn't know why the original Constitution didn't come with a bill of rights, it was because the convention was afraid of this very scenario - that any power that isn't expressly prohibited would be assumed to be valid.
Courts view that as a legislative function which is none of their business.
So Congress is to decide for themselves how their own powers are limited? Checks and balances, anyone?