by Rob Natelson
Probably no part of the Constitution has been so misunderstood as the Necessary and Proper Clause, which is located at Article I, Section 8, Clause 18. The Necessary and Proper Clause has been called both an “elastic clause†and a “sweeping clause,†and many have claimed it grants vast power to Congress. For example, a recent Supreme Court case, United States v. Comstock, stated that the “Necessary and Proper Clause grants Congress broad authority to enact federal legislation.â€
In fact, most federal regulations today are justified by the Necessary and Proper Clause. They are said to be within Congress’s Interstate Commerce Power— but within not the core Commerce Clause (“The Congress shall have Power . . . To regulate Commerce . . . among the several Statesâ€). Rather, they are said to be supported by the accompanying authority to “make all Laws which shall be necessary and proper for carrying into Execution†the power to regulate commerce.
Now, here’s the irony of the situation: Far from granting “broad authority†to Congress, the truth is that Necessary and Proper Clause grants no power at all. It is placed at the end of Article I, Section 8 as an explanation—that is, a “recital.â€Â A recital is a passage in a legal document that has no substantive legal effect, but serves to inform the reader of assumptions or facts behind the document. Another example of a recital in the Constitution is the Preamble.
In recent years, several constitutional scholars have investigated the true meaning of the Clause, and have worked to correct the record. The process began with an article written by Professor Gary L. Lawson and Patricia B. Granger: The Proper Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267 (1994). It focused on the meaning of “proper.â€Â A decade later, I delved into the historical record. I found that wording of this kind was extremely common in eighteenth-century documents granting power from one person to another. I also found the courts had issued cases interpreting this language, and that the Founders had adopted the courts’ interpretation. See articles hereand here.
Finally, Professors Lawson and I teamed up with two other noted scholars, Geoff Miller, and Guy Seidman, and wrote a book on the subject. (We all have differing political views, by the way.) The book is called The Origins of the Necessary and Proper Clause, and it was published last year by Cambridge University Press.
Here’s what we found:
*   The Clause is a mere recital. It informs the reader how to interpret congressional authority. It does not grant any power.
*   The term “necessary†tells the reader that congressional authority is interpreted according to the intent behind the document, rather than very strictly (as the Articles of Confederation required).
*   The Clause does this by telling the reader that the legal “doctrine of incidental powers†applies to the Constitution. This means that Congress can regulate certain activities outside the strict reading of its powers, but ONLY IF this ancillary regulation is (1) subordinate to an express power, and (2) a customary or necessary way of carrying out the express power. For example, in regulating commerce, Congress can require accurate labels on goods to be shipped in interstate commerce. But Congress cannot regulate the entire manufacturing process.
*   The word “proper†means that a law must comply with Congress’s fiduciary (public trust) responsibilities. A law is not “properâ€â€”and is therefore unconstitutional— if it invidiously discriminates among people, violates individual rights, is utterly irrational, or exceeds congressional authority.
*   Contrary to prevailing legal mythology, Chief Justice Marshall’s famous case of McCulloch v. Maryland (1819) did not stretch the Clause, but applied it properly and with due regard for its limitations.
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Recently, Dave Kopel, the Independence Institute Research Director, filed an amicus curiae brief in the most important anti-Obamacare lawsuit. He did so on behalf of Professors Lawson, Seidman, and me. The goal? To correct the record and inform the courts what the Necessary and Proper Clause REALLY means.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/
George Nichols, in the Virginia Ratifying Convention of 1788 stated:
"The committee will perceive that the Constitution had enumerated all the powers which the general government should have, but did not say how they were to be exercised. It therefore, in this clause, tells how they shall be exercised. Does this give any new power? I say not. Suppose it had been inserted, at the end of every power, that they should have power to make laws to carry that power into execution; would that have increased their powers? If, therefore, it could not have increased their powers, if placed at the end of each power, it cannot increase them at the end of all. This clause only enables them to carry into execution the powers given to them, but gives them no additional power."
Yo Congress and the federal judiciary… a 10 year old could understand this so what is your excuse?
Exactly right.
Hamilton and the Federalists basically wanted to transplant British mercantilism to America, but their original plan was voted down. According to some historians, the Necessary and Proper Clause, the Commerce Clause, and the General Welfare Clause were ambiguities planted in the Constitution by Hamilton and the Federalists to be able to eventually get what they wanted – a strong centralized government that was in cahoots with the banks and businessmen. Through several of his interpretations, Federalist Chief Justice John Marshall took every opportunity to force the Hamiltonian view of government on the country. We are now stuck with this interpretation. There is so much precedent for it, that it will probably never be overturned, except by another revolution of one kind or another.
With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators. – Letter to James Robertson (1831-04-20) James Madison
Here we are again – we alway return to the Federal government usurping powers and cancelling States rights and the rights of the People.
Robert Yates, AntiFederalist Paper #17 – Federalist Power Will Ultimately Subvert State Authority
On March 2, 2011, in Robert Yates, by admin
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This [new] government is to possess absolute and uncontrollable powers, legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of section eighth, article first, it is declared, that the Congress shall have power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof. ”
And by the sixth article, it is declared, “that this Constitution, and the laws of the United States, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or law of any State to the contrary notwithstanding. ”
It appears from these articles, that there is no need of any intervention of the State governments, between the Congress and the people, to execute any one power vested in the general government, and that the Constitution and laws of every State are nullified and declared void, so far as they are or shall be inconsistent with this Constitution, or the laws made in pursuance of it, or with treaties made under the authority of the United States. The government, then, so far as it extends, is a complete one, and not a confederation.
Anyone who has read the federalist papers knows that this clause in not "elastic" nor is it "sweeping".
Rather it is refered to in the federalist as "redundant". Thus, no additional powers are granted thereby.
Why do people want to make things more complicated than they need to be? Madison stressed that the law should be written so that the common man could read and understand it. I'm going to make this "simple." Using Madison's rule, lets read clause 18 of Article 1 Sec. 8: "To make all Laws which shall be necessary and proper for carrying into Execution the FOREGOING Powers, and all other Powers vested by THIS Constitution in the Government of the United States, or in any Department or Officer thereof." Note: I've capitalized the word "foregoing"? Why? This is KEY to understanding that clause 18 is the "closing statement" referring to clauses 2-17 ONLY…. in other words the "foregoing powers". "Foregoing" meaning the before mentioned powers, previously stated, or those listed before the last clause. Just look it up in a dictionary. I used the American Heritage dictionary. Clause 1 is the "general or opening statement" regarding powers 2-17. Clause 18 is the "closing statement" regarding the previous mentioned powers. It's a reading comprehension problem that modern people have. But remember, Madison drafted the Constitution so that it would be easy to follow and understand. In addition, the other word used is "THIS", referring to the other powers mentioned in the Constitution—nothing more and nothing less. Yes, it IS that simple!
But even when it is understood as you suggest, it remains as expansive as it can be. Start thinking about what "necessary and proper" actually means and where the limit actually is.
Actually, no it doesn't. "Necessary and proper" is referring to the FOREGOING powers. The People granted Congress ONLY those powers listed in 2-17. So EVERYTHING in clause 18 is referring to clauses or powers 2-17. Remember, the Preamble begins with "WE THE PEOPLE…." We give government it's authority, not the other way around.
Only a "serpent's tongue" would twist the meaning of words to his/her advantage. Our government plays upon the ignorance of the people. If we let them get away with it, then we get what we deserve. But if we are educated enough to know we're being "snowed", we won't let them get away with it. If we don't hold government accountable, no one will. So, again, knowing that Madison made it "simple", and "The People" give Congress it's authority in Article 1 Sec. 8, 2-17 , government cannot possibly lawfully expand it powers beyond this.
OK. Let's take establishing Post Offices. Does the clause allow them to make a law that says, "All parcels up to 10 pounds to be delivered by other than the parcel's owner shall be delivered only by using the United States Postal Service?"
Read the clause. It does not mean absolutely, positively "can't live without it." It means reasonably adapted to serve the purpose.
As per Natelson, it means "(1) subordinate to an express power, and (2) a customary or necessary way of carrying out the express power."
Is it subordinate to the power? I'd say that all laws that require people to deal with a branch of government are subordinate. Take the driver's license office. "Thou shalt pay a fee to get your license" is subordinate to the regulation of the issuance of driver's licenses. Is it customary? Well, I wouldn't see too many people surprised to hear that government is the only game in town with regard to all sorts of things – building roads, militaries, etc. So, sure, it's customary to offer certain services only through government for a fee.
Now that you have a better feel for its elasticity, what laws might be necessary and proper to save the Postal Service from demise? After all, it is customary to take all kinds of drastic measures to save something that is dying.
That's the way this clause was written. That's the way it is interpreted. Even Natelson's interpretation squares with this analysis. It's because there is no interpretation that will make it any more restrictive without itself, being absurd.
I understand your point here. The Post Office was "necessary" back then. Afterall, it was the only way to get a letter delivered from one to another efficiently at that time. And the "post roads" were necessary to carry the mail safely and efficiently. Letters are a form of communication. The Founders could not have possibly imagined UPS, Federal Express, or the internet and email. Mail was as "modern" as they got back then. Therefore, logic would assume, the Post Office, no longer being an efficient way of communication, is no longer "necessary and proper".
So why would we want to revive something that is inefficient and a waste of money. The Founders were also "frugal" afterall. In any regard, "the people" need to vote on it. If the people decide the Post Office is no longer "necessary and proper", then it goes away. Therefore, also, the government no longer needs to keep up "post roads". It's a waste of money. That is if we use "common sense", or "uncommon sense" as my husband puts it.;-)
But we're no longer dealing with a government who uses common sense or even regards "common law" at all.
Licenses or permits in any form are "unconstitutional". Anything that restricts one's "natural rights" is unconstitutional. The problem is we have a blatant abuse of government powers today. We have senators and representatives that even admit now that the Constitution is no longer relevant. How do we beat that? That must first be addressed. Furthermore, we have judges who are complying with all things unconstitutional and making arbitrary judgments without even consulting the Constitution.
Madison, Jay, Hamilton, and the others had "common sense". They believed the laws should be written simply so that the common man could read and understand them. Why? Because they were getting out of a rather abusive British monarchy. They knew how government would abuse power. They took as best of precautions as they could to prevent that from happening here. But of course, as usual, the people became complacent and ignored the abuses of gov't.
If ONLY we had to worry about regulation from the Post Office…a Constitutional (but bankrupt) entity! Now we have to worry about what light bulb we use and what kind of milk we can drink.
The "Necessary and Proper" clause along with the "Commerce" clause have been constantly abused by not only the congress but by the courts as well. Also, the "Supremacy" clause of Article VI, para 2 is another that is grossly misinterpreted. Federal law is only supreme when it comes to exercising the powers "enumerated" in the Constitution. Our problem is not how "we the people" read the Constitution, it's how the congress and progressive judges as affirmed by the supremes that has gotten us into trouble. A sanctioned revolution as outlined in the Declaration of Independence appears to be our only recourse, because a legal approach to the problem is not a solution as Stare Decisis appears to be the principle doctrine of our rulers.
Hamilton and the Federalists basically wanted to transplant British mercantilism to America, but their original plan was voted down. According to some historians, the Necessary and Proper Clause, the Commerce Clause, and the General Welfare Clause were ambiguities planted in the Constitution by Hamilton and the Federalists to be able to eventually get what they wanted – a strong centralized government that was in cahoots with the banks and businessmen. Through several of his interpretations, Federalist Chief Justice John Marshall took every opportunity to force the Hamiltonian view of government on the country. We are now stuck with this interpretation. There is so much precedent for it, that it will probably never be overturned.
Now, we're getting somewhere. The Constitution was a well-intended document, but it is easy to see how flawed its language actually is. The founders were some smart people, but they were not capable of writing a document using language that was not susceptible to competing views – even reasonable competing views. The ratifiers were not a homogeneous body of men with unison in thought. So, it is error to say, "The founders believed…." They had disagreements and debates on all sorts of matters. Ratification was simply an act of expediency of the day.
It was predicted by so many of them that we would reach this point. I mean, after all, how can you read the Constitution and not predict this?
My take is the Constitution is no "great" or "inviolate" blueprint. It is a document that tries to express an idea, but which does not accurately do so. To their defense, though, I can't think of word choices that would have made its trade-off concepts (the natural competition between 2 sovereignties) all that much more clear.
The Founder foresaw this and that is why they warned us against USURPATION. Jefferson, Washington and others warned about the courts joining either of the other branches to usurp as the biggest risk facing the nation and the survival of the Republic. That is why each of them said the right to bear arms was of the utmost importance as the last resort against an usurped corrupt Federal government.
Hamilton and the Federalists basically wanted to transplant British mercantilism to America, but their original plan was voted down. According to some historians, the Necessary and Proper Clause, the Commerce Clause, and the General Welfare Clause were ambiguities planted in the Constitution by Hamilton and the Federalists to be able to eventually get what they wanted – a strong centralized government that was in cahoots with the banks and businessmen. Through several of his interpretations, Federalist Chief Justice John Marshall took every opportunity to force the Hamiltonian view of government on the country. We are now stuck with this interpretation. There is so much precedent for it, that it will probably never be overturned, except by another revolution of one kind or another.
Rob,
The nation owes you a debt of gratitude for your works on explaining the Constitutional Republic, you ORIGINAL CONSTITUTION occupies a permanent position on my work desk and it's pages showing extensive use? I am still doing battle with where in the Constitution any type of re-distribution is allowed surly not the 16th or the 5th amendment?
We already fought one civil war over the constitution. What is coming next?
Lincoln was the first major usurper – he had no power to prevent the States from seceding? He started the first of many unconstitutional wars IMO. He destroyed States rights and powers passed amendments by appointing his own legislators and Governors in the Southern States? Is a power siezed by war and effected by usurpation a lawful power and the amendments created under that condition bind the people without representation?
This country has never fought a civil war. 1861-1865 was a war for Independence. It was a war of aggression. The 11 years that followed were occupied years in which the Constitution was laid aside. A civil war is; a war fought between two or more opposing factions for control of a central government. I will say again, we have never fought a civil war in this country.
When a Doctor talks about REGULAR there is no doubt as to the meaning?
There are some Tenthers that will disagree that the only purpose of the word, "regulate," was to set uniform standards as regards weight and such. I have seen the argument that the term meant to allow Congress to set such rules as are necessary to maintain open trade. The idea was to prevent boycotts, directly (as in a boycott itself) or indirectly (as through excess taxation or duties).
When you look at it from this angle of "open trade," we have a much more expansive view. All the sudden, we have a potential for some difficult issues.
What if, for example, one state wants to promote its domestic fluorescent light manufacturers and so, enacts a law stating, "In connection with the sale to an individual or business consumer in this state of any incandescent light bulb, there shall be a tax added to the sales price equal to the sum of 50% of the sales price?"
Notice this rule says nothing as regards the fact that the taxed bulbs must come from outside the state? It is, on its face, purely neutral on that issue. Is Congress empowered to prohibit this new state sales tax? Buried in the analysis (when you start looking at the interstate commerce issue) is a tough question….. "What exactly IS interstate commerce? When does it begin? When does it end?
If a manufacturer in one state sells a product to a distributor in another state, clearly, we have interstate commerce. But now that the distributor in the other state is going to sell to grocery stores located within that same state, you would say, "There, we have intrastate commerce."
So, let's see what happens to our sales tax scenario. If the sales tax occurs at the grocery store (consumer level), this will affect demand in the state. The reduction in demand will lead to the in-state distributor needing less to supply and thus, placing fewer orders with the out-of-state manufacturer.
Thus, an act of regulating intrastate commerce by a state can most definitely have an affect of regulating intrastate commerce – although the effect is indirect, it is nonetheless an effect and is all that is needed to allow a state to close off certain trade from other states.
Not so easy, is it?
How do we fix these problems?
Oops. I meant "interstate" in the second line of the third-to-last sentence.
We humans like to construct straw men to knock down and use as a proof of the statement. Words like people and societies change drastically over time and then force us to apply the normal behavior and word meaning as of the time it was recorded. IMO.
So, to answer your question we need to find the actual definitions of the words in the time of the Founder and we need to determine the actual normal type of business/commerce/export/import/excise/duties and other facts of the describe clause. Then we can go to the Federalist and Anti-Federalist paper, minutes of the Ratification convention. As an example of the fallacy of using current definitions will become apparent by reading just a few example below. Apply these definitions to the days news and see what sense you can make of it?
CONDESCENDING—Condescending had none of the negative implications it has today. Aristocrats
who showed a proper degree of courtesy to their social inferiors were said to be condescending.
CONVENT—Convent could mean not only a nunnery, but a monastery as well.
CONVERSATION—Any social interaction. Criminal conversation was adultery.
CORDIAL—A drink of hard liquor, often taken for what was supposed to be medicinal purposes.
CORN—As is still the case in Britain, corn meant any grain, including wheat and barley.
CORRESPONDENCE—Not only an interchange of letters, but any sort of relationship.
Any one has any thoughts, about the U. S. House using Rule XXVII and enacing Laws, in the year 2000; where only 5 Rep. and then 5 senators voted to enact a law, violated the "Quorum clause"…and landed, all of us in this soup, called Economic Disaster.
The U. S. Congress, in 1988; using it's Rule XXVII, suspended the rules, enacted a statute 28 USC 2073 subdivision (c)(1); statutorily empowering, "committees affiliated with U. S. Courts"; to "convene secret meetings" for making rules " which, in turn affect rights of all the people, in Civil and Criminal Trials. in U. S. Courts" and authorised the "committees, answerable to U. S. Courts" to redact the "record of reasoning for holding such SECRET meetings"…if anyone asked for the "record" of such meeting.
President reagan, signed it into Law, 11-19-1988; to impose unbelievable burden, on all the people.
This is how…the U. S. Congress…violated Article I, section 1; delegated it's "power to make rules" to the U. S. Courts…since 1911….and travesty set in.
Has anyone…any thoughts about it ?