The legislative powers of Congress are few in number and specifically enumerated in Article I, Section 8 of the Constitution. The final enumeration, known as the Necessary and Proper clause, is unique. Unlike the other legislative powers, it does not describe an object to be pursued by Congress, like maintaining a navy for example; instead the clause concerns only the allowable means for the already enumerated powers. It reads
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 Officer thereof.
Despite its instrumental role in potentially limiting or enlarging legislative scope, the Necessary and Proper Clause received little debate at the Constitutional Convention. The Clause came into existence as a replacement for a much more sweeping approach that would have given Congress power to “legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” The Clause, in it its finalized form, then at least limits the powers of Congress more than the proposed alternative. It was not further considered at the Convention.
In 2003, Georgetown University Professor of Law Randy Barnett wrote The Original Meaning of the Necessary and Proper Clause for the University of Pennsylvania Journal of Constitutional Law (Vol. 6, October 2003). It is the third installment in series applying Barnett’s originalist view to certain clauses in the Constitution.
During the ratification debate, Anti-federalists noted the potential for abuse lurking in the Clause. In response, many Federalists declared that the Clause in no way expands Congress’ power. Although some Federalists might have hidden their true designs for the Clause, secret intentions are not binding under Barnett’s theory, which considers the original, public meaning.
The lack of clarity surrounding the Clause’s true meaning came to a head with the creation of the first national bank. Because Article I does not explicitly give Congress the power to charter or incorporate a bank, the pro-bank forces sought to derive such a power from the Necessary and Proper Clause. They argued that creating a bank is necessary and proper for executing enumerated powers like taxation, paying debts, providing for the general welfare and the common defense as well as borrowing money. Representative James Madison of Virginia countered that necessary does not mean convenient. Reading necessary and proper to allow such an attenuated connection would, argued Madison, pervert the limited nature of our new government and allow great expansions of power whenever expedient to the legislature. Madison’s arguments were largely echoed by Thomas Jefferson and Edmund Randolph in their attempt to persuade President Washington.
Alexander Hamilton, however, won the day. Hamilton argued and convinced Washington that the intended meaning of the word ‘necessary’ is not that forceful. Necessary instead means “needful, requisite, incidental, useful, or conducive to.” This meaning was apparently the ‘popular’ meaning of the age. Furthermore a truly literal interpretation of the Constitution would bring all government immediately to a halt. In Constitutional interpretation, there are always going to be cases that are too close to call. Therefore latitude must be given to Congress to decide these close calls.
Hamilton’s arguments also managed to convince the Chief Justice of the Supreme Court, John Marshall. In an 1805 opinion from United States v. Jones, Marshall decided “Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution.” Later and more famously in McCulloch v. Maryland, Marshall upheld the Constitutionality of the national bank under the Necessary and Proper Clause. Marshall distinguished the language “absolutely necessary” in Article I, Section 10 from “necessary” in Section 10. Because the Constitution acknowledges degrees of necessity, the Necessary and Proper Clause must have the more lenient meaning proposed by Hamilton.
History has clearly favored Hamilton’s position, though Madison’s is generally allowed some merit. English dictionaries from the time seem to favor Madison when they define necessity as “1. Needful; indispensably requisite. 2. Not free; fatal; impelled by fate. 3. Conclusive; decisive by inevitable consequence.” A third use of the word necessity in the Constitution also seems to favor the Madisonian approach. Article II, Section 3 “[h]e shall from time to time give to the Congress Information of the State of the Union and recommend to their Consideration such measures as he shall judge necessary and expedient.” Barnett notes how the Hamiltonian definition of necessity would be redundant and meaningless in the above sentence. In any case, the lack of debate about these clauses during the convention leaves this question to a certain extent unanswerable.
Barnett favors a middle path. Necessity means neither “indispensably necessary” nor just convenient. The first approach would render the union government a nullity; the second would destroy any meaningful limits on it. In determining which means are appropriate, Barnett recommends an intermediate scrutiny.
Because the Clause has enough force to limit the power of Congress, courts should determine its application and not Congress itself. That is to say, the Clause is justiciable. Unfortunately courts since Marshall have not taken this approach. The effect has been to grant almost unlimited powers to a government limited by design, even though John Marshall himself eventually argued that the Clause should be read as a blank check.
And what about proper? During the convention, the words necessary and proper were often used together as a unit. The word ‘proper’ does however have individual meaning. For a law to be proper it must first be necessary and have proper jurisdiction. This jurisdiction is threefold. It must conform with the Separation of Powers, Federalism, and Individual Rights. Thus a law could be necessary to carrying out an enumerated power but improper in the sense that it violates the people’s rights.
Thus if the Necessary and Proper Clause follows the Madisonian vision, courts are more than equipped to judge whether any act of Congress pursues an enumerated objective, the means do not violate individual rights, and Congress’ argument is not a pretext for nefarious purposes. Under the Hamiltonian view, Courts are ill-equipped to answer any of these questions. Therefore how one reads the Clause is of paramount importance for the structure of the federal government.
- Understanding the Ninth Amendment - July 6, 2015
- The Original Meaning of the Necessary and Proper Clause - January 1, 2015