To justify the huge growth of federal regulations over the last few decades, lawyers and judges frequently cite the Constitution’s Necessary and Proper Clause (I-8-18). But is that provision really broad enough to authorize what they claim it authorizes?
This little essay focuses on the meaning of the word “necessary.” Early legal documents—used by English lawyers, but written in Latin— offer some clues about what that word was intended to mean.
The Origins of the Necessary and Proper Clause, a book published in 2010 by Cambridge University Press, was authored by four scholars of differing political views—of whom I was one. The research summarized in the book found that the “necessary” portion of the Clause did not actually grant Congress additional authority. It merely assured the reader that the Constitution, unlike the Articles of Confederation, gave Congress powers “incidental” to those listed. Chief Justice Roberts apparently followed that research in the portion of his Obamacare decision in which he found that the Necessary and Proper Clause did not authorize the federal health care law.
During the Founding Era (and today also, in most contexts), an incidental power was one that met the following requirements:
* It was subsidiary to—less important than—a listed or “principal” power. Founding-Era lawyers said an incidental power had to be less “worthy” than the principal.
AND:
* It was either
(i) a customary way of exercising the listed power or
(ii) reasonably necessary to its exercise. Founding-Era lawyers summarized “reasonably necessity” by saying that an incidental power had to be one that, if absent, would subject exercise of the principal power to “great prejudice.”
Let’s consider an example: The Constitution grants Congress authority to regulate “Commerce . . . among the several States.” That is a principal power. This gives Congress authority over interstate trade among merchants together with a few associated activities, such as commercial finance, cargo insurance, international brokerage, and navigation.
But today, Congress also regulates manufacturing in detail, claiming that doing so is “incidental” to the regulation of interstate commerce. But that claim really doesn’t wash, because manufacturing is at least as important an economic activity (as “worthy” as) as interstate trade among merchants. So it cannot be subsidiary to commerce. (On the other hand, Congress may regulate some aspects of manufacturing that are subsidiary to and closely connected to commerce, such as the labeling of goods about to be sent across state lines.)
The meaning of “necessary” as embracing only subsidiary powers is strange to us today. But that’s the way Eighteenth Century legal documents used the term.
Why so? Well, “necessary and proper”-type provisions were based on earlier instruments composed when English lawyers wrote most legal documents in Latin. For instance, a 1724 book of legal forms contained this forerunner of the Necessary and Proper Clause:
“ad facienda exsequenda et expediendia omnia et singula et necessaria fuerint aut opportuna. . . . ”
(I’ve spelled out the phrase’s abbreviations.)
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Notice the words necessaria and opportuna, the neuter plural forms of necessarius (necessary) and opportunus(proper).
In Latin, an important meaning of necessarius is a person connected to you. It can refer to a close relative, associate, and in particular to a dependent or servant. The Founders had virtually all studied Latin as part of their basic education, and as constitutional historian Forrest McDonald points out, there are many echos of Latin usage in the Constitution.
So you can see how the term necessaria—“necessary”— could come to refer to a power subsidiary and connected to larger power.
Reality check for you;
Law Makers!
Someone please explain to me what a law maker is? Who is this authority and what about natural laws of the universe? Did we make these or are they a part of all life is a part of?
So who then is the law makers?
Congress?
The Senate?
Layers?
Presidents?
God?
Ask yourself this; what is a law? A rule to enforce some idea or concept, or to rule over.
Wow, this sure messes things up doesn’t it? I read an article this morning about usurpation and at the end he said “law makers” and I just about fell on the floor. I said to myself this is it, this is the real problem. We have created and decided “law makers” and there is no such thing other than what we made up period. The truth be told no life can rule another life and natural laws exists already so what is this made up crap anyway?
It is the permission, the creation, the decision to be RULED by those that volunteer to be ruler’s. So what is it we are doing to ourselves exactly, and why do we need to be ruled? Who is convincing us of this idea?
If Government is to be limited to have and create Liberty in your life, why would we give permission to congress to create laws to rule us? Think about that for a minute and really answer that question to yourself. Why are we so convinced this should be the case when in all evidence it can be shown to be usurpation?
Congress and the senate are here to represent our needs to sustain in our communities. This means support and not to be ruled, regulated and stomped on. This is a clear picture of separation between what we see today and our vision for tomorrow. This means we need no one to create any other law than the natural laws that exist from nature, (Life) itself, This means we do not need attorneys, judges or any others upholding all these rules they all created. This will include city Governments, Sates Governments and all Federal and Global Governments.
Think about the implications of this decision and then look at the concept of Liberty? Can you visualize it? How can you constantly create Liberty if you are unable to visualize it?
I am beginning to think or discover Independence really means without Law makers in our lives and I know there are thousands of you out there screaming we must have laws and my question for you is, who is making that choice to be usurped?
Who are the deciding in LIFE?
I enjoyed reading The origins of the necessary and proper clause, especially Dr. Natelson’s contribution. Brutus clearly showed the irony of the NP clause in 1787 with, “A power that has such latitude, which reaches every person in the community in every conceivable circumstance … which has no bounds set to it, but the discretion of those who exercise it, I say, such power must [NECESSARILY], from its very nature, swallow up all the power of the state governments.”. This type of power grab not only generated an arduous and bloody American revolution, but also the country’s horrendous civil war. As for today’s informed citizens and their respective states, are they to repeat this fight for freedom and independence?
President Andrew Jackson said: “Congress has no right under the Constitution to take money from the people unless it is equipped to execute some one of the specific powers entrusted to the government…and in such a case it is unquestionably the duty of the government to reduce them, for no circumstances can justify it in assuming a power not given to it by the Constitution nor taking away the money of the people when it is not needed for the legitimate wants of the government.”
What people forget, or never bothered to learn is that the oath required of all whoserve within the federal government is their accountability to us, “We the People”.
From what used to be on the FBI website when it still served under the US Constitution instead of aiding and abetting its enemies from within as a now treasonous agency. Please note the many times that they refer to “the people” as the last resort against ta corrupt government.
‘The meanings of the words in the Oath: “I”- an individual, person, citizen, one member of the whole, officer;
“do” - perform, accomplish, act, carry out, complete, achieve, execute;
“solemnly”- somberly, gravely, seriously, earnestly, sincerely, firmly, fervently, with thought and ceremony; “swear (or affirm)” – vow, pledge, promise, guarantee;
“that I will” – a positive phrase confirming present and future action, momentum, determination, resolve, responsibility, willpower, and intention;
“support” – uphold, bear, carry, sustain, maintain;
“and defend” – protect, guard, preserve, secure, shield, look after;
“the Constitution of the United States.”
Significantly the Oath is to support and defend the Constitution and not an individual leader, ruler, office, or entity. This is because the Constitution is based on lasting principles of sound government that provide balance, stability, and consistency through time. A government based on individuals – who are inconsistent, fallible, corruptible, and often prone to error – too easily leads to tyranny on the one extreme or anarchy on the other.
The Preamble sets forth the goals or purposes of the Constitution. The opening and closing words of the Preamble, “We the people of the United States … do ordain and establish this Constitution for the United States of America”, describe a government ordained and established by the consent of the people.
America is a constitutional republic where elected representatives swear to uphold the Constitution as they serve at the will and by the consent of the people. This was something so rare that some historians maintain it has been accomplished only three times during all of human history: Old Testament Israel, the Golden Age of Greece, and the era of emergence of the United States of America.”
The structure of the Constitution emphasizes the principle of separation of powers. Article I established the legislative branch with the power to make laws; Article II, the executive branch with the authority to enforce the laws; and Article III, the judicial branch with jurisdiction over legal disputes. “It is important to note that the Constitution in no way granted the federal courts the power of judicial review, or an ultimate interpretive power over the constitutional issues”. That was inserted later.
Another aspect of the separation of powers is the principle of federalism. Federalism is a legal and political system where the national or federal government shares power with the state governments while each maintains some degree of sovereignty.
The Constitution helps to delineate the roles of the federal government by spelling out its limited powers, which are outlined in the first three Articles. Section 10 of Article I also places specific, limited restrictions on the states; however, these restrictions actually serve to emphasize the powers reserved exclusively to the federal government (e.g., the power to make treaties with other nations). Article IV delineates a few fundamental requirements incumbent upon state governments, as well as guaranteeing to each state a republican form of government. Other than the limited guidance given to the states, the Constitution does not direct the states on the establishment and functions of state governments. The idea is that there are certain limited activities the federal government is best situated to handle; there are other activities that are best left to the states; and still others best dealt with by counties, cities, families, and individuals.
Under this system of government, the founding fathers realized that conflicts between state and federal jurisdiction would arise. Accordingly, in Article VI of the Constitution, they designated the Constitution itself and other federal laws as “the supreme Law of the Land.” This clause (known as the supremacy clause) serves as a “conflict-of-laws rule specifying that certain national acts take priority over any state acts that conflict with national law.
The federal government was intended to be a government of limited powers, there were many who feared the inevitable expansion of those powers, particularly in light of the supremacy clause. Without the promise of a Bill of Rights limiting the power of the federal government, the Constitution never would have been ratified.
The founding fathers built a system of checks and balances into the Constitution, whereby the executive, legislative, and judiciary would check and balance each other and state governments would balance the federal while it, in turn, would maintain a check on the states. The people would check and balance all of it.’ (con’t)
(con’t)
The Oath is a requirement to get into office, and since it is binding for life, a requirement that must be met to LEGALLY stay in office. Yet we are not holding them accountable. Isn’t it time to start arrests and prosecutions?
The US Constitution is the Supreme Law of this land that ALL laws, bills, etc must be in pursuance of to be legal. It REQUIRES an Oath from all who serve within the federal government or as heads of state, etc. Basically the three branches of our government, the military, all law enforcement, the heads of the States, all federal employees are REQUIRED to take a solemn Oath to support and defend the Constitution and NOT an individual leader, ruler, office, or entity. Once given, the Oath is binding for life, unless renounced, refused, and abjured. It does not cease upon the occasions of leaving office or of discharge.
The first law statute of the United States of America, enacted in the first session of the First Congress on 1 June 1789, was Statute 1, Chapter 1: an act to regulate the time and manner of administering certain oaths, which established the oath required by civil and military officials to support the Constitution.
The wording of the Presidential Oath was established in the Constitution in Article II, Section 1, Clause 10.
The requirement for all Federal and State Civil officers to give their solemn and binding Oath is established in Article VI, Section 1, Clause 4.
They are BOUND by their Oath to support the Constitution, and should they abrogate their Oath by their acts or inaction, are subject to charges of impeachment and censure (political recourse).
Solemn: “Legally binding, Common legal phrase indicating that an agreement has been consciously made, and certain actions are now either required or prohibited”, “The other requirement for an agreement or contract to be considered legally binding is consideration – both parties must knowingly understand what they are agreeing to”.
Bound: “Being under legal or moral obligation; To constitute the boundary or limit of; To set a limit to; confine”.
Require, Requirement, Required: “to claim or ask for by right and authority; Mandated under a law or by an authoritative entity. That which is required; a thing demanded or obligatory; something demanded or imposed as an obligation.”
Those are our civil ways to get accountability – prosecute.
@KansasBright
Answer this KansasBright; how is a corporation bound by the Constitution? If the oath is to the corporation and not to the people because the Peoples republic does not exist what does the Constitution support now?
You are your own authority to decide right? Is there really any more? Or is it given up by agreement and choice?
Next; is our Federal Government a Corporation or a Government by the people for the people in reality?
We can certainly scream the constitution 24/7 and what difference will it make to a group not bound by such? Saying it is and knowing it is makes an enormous difference.
Again, the Constitution when properly applied is Limits to those who took a public oath which is different than a corporate oath, also known as Liberty in this country isn’t it?
Why is everyone focusing on the words “necessary and proper” when they should be focusing on the word FOREGOING which is before the word “Powers” in that phrase in Article 1, Sec. 8. What does “foregoing” mean? “Said, written, or encountered just before; previous: Refer to the foregoing figures.” In other words only things related to the powers listed BEFORE or ABOVE this phrase. Congress only has the powers listed in Article 1, Sec. 8. Therefore, “necessary and proper” only refers to these powers—nothing more and nothing less. To interpret it any other way is a demonstration in an inability to read properly.The phrase reads as follows: “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.”
@KimberlyBoldt
So why did they not write it in that manner, is it an English manner, and interpretation issue or and intentional confusion.
It is simple to state something means something and all are interpreting it incorrectly like no abuse of the English language was ever possible, in fact is very possible and the lack of communications in this country is the direct result of poor communications period.
What happened to basic english and basic understanding? Oh ya prior educated set on a prominent view of themselves as superior for their word play could be considered intellectual. In fact law is the perfect example of poor english or corrupt english.
So why focus on words and focus on ideas, decisions , acts and the results of these? Since acts came first and the description of these acts second and the abuse of this after these two what makes for a proper understanding of any document?
There are 3 very basic principals and they are very simple and can all have a common understanding by what they produce when utilized, these are Life, Liberty and the Pursuit of Happiness. If we look at what these mean by activity we can get our understanding by such a use and do not have to interpret a thing and they are certainly not impressive as to please the Oh so intellectual, in fact it pisses most of them off because it is too simple.
The Constitution itself is filled with intellectual displays of word play, have you ever answered the real question of why? Why do so many see it so differently, why is there no common understand of this document? There is only authoritarian views of what they think it means and this does not show it means the concept.
Why do people focus on words as carrying any authority what so ever? Since choice is all we have what other authority is there?
This is in no way was meant in disrespect and is in fact in all honesty.
@WilliamSchooler @KimberlyBoldt That was the way English was spoken and written in that time.
Think of the changes in the way we speak it today compared to 10 years ago, 15 years ago, etc. some of the changes have been deliberately cultivated: like “Air Support” to make “bombing the cities, etc” sound less warlike.
Right now there are two very different ‘definitions’ of the term “Freedom” going on politically.
One means that you are free to make a life for yourself: decide if you will date, marry, have children, what job you will take, how far you will go in education, etc.
The other, the socialist view – what Obama (DNC) and Romney (RNC & GOP) both support – means that you are free from the troublesome burden of making decisions for yourself. Instead they will decide what you will eat and when, what type of education you will receive and in what major, what type of job you will work at; if you will be allowed to date, marry, have chidren; you will not own anything, they will provide the place you live, transport you to the job you are assigned, etc. Of course only select people will be those who make those decisions for you.
Two Very different views on Freedom.
@KansasBright@KimberlyBoldt
I totally agree with the two versions and I also understand that most will not take the time to see where some concept originated and that assumption becomes the authority over what we can show that was originally explained.
Many folks use words as though they hold the force of the universe, this is false, it is simply a description of some cause or effect that can be verified. Making it up and perverting is what act? An assuming act?
Freedom came from the act of free will, to simply decide without interference, this was a discovery of free will or individual choice as opposed to Rule which was clearly learned early on.
People call it Liberty and it is only in a sense but the act of liberty is to limit or or stop those imposing authority over you, to be free from or the act of stoping those imposing.
Today we are all so trained from the nonsense versus origination of concepts, I think we should stop pretending to ourselves and show the verification by the activities that support them.
But then I prefer clarity over assumption which is a choice also.
@WilliamSchooler @KimberlyBoldt Madison especially set out to write the Constitution so that the even the common man could read and understand it. Because in his mind, what’s the point of having laws if the people cannot read and understand them.In The Federalist No. 45, Madison specifically wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”The problem is their concepts were simple, and we today want to make things more complicated than they need to be. In fact, their ideas were so simple, we find it difficult to wrap our minds around these concepts.The federal government was formed for 3 main purposes: national defense, foreign relations, and trade and commerce. It serves no other purpose. Congress, the President, and Supreme Court are now stepping way beyond the boundaries of the Constitution today and they know it. We are not going to change their thinking until we change OUR thinking.
@KimberlyBoldt
I have read it, as for simple terms I am unable to entirely agree. I agree with what you say “The power delegated” but today we are trained to assume versus understand. And you are right that is what it was formed to do before it became a Corporate entity devoted only to serve itself. Which has altered our constitution and created illegal laws. These were all done by our decision to allow such an atrocity, its not our thinking we only need to change, it is our choices because this is how all things are caused.
Common understanding can be defined as something all can experience if they attempt the concept. To read and understand will not always bring understanding. The concept “practice makes perfect” is the act of repeated lessons, learning and growth until entirely successful in a consistent manner.
Liberty, the use of the constitution then is a constant creation until consistent results are verifiable, are they? Since our constitution is our’s to limit them, we have failed at this understanding , no?
Your own words; Why is everyone focusing on the words “necessary and proper” when they should be focusing on the word FOREGOING
How is this confusion possible with its simplicity? Maybe it was not as simple as some pretend.