To justify the huge growth of federal regulations over the last few decades, lawyers and judges frequently cite the Constitutionโs 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 โnecessary.โ Early legal documentsโused by English lawyers, but written in Latinโ 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 viewsโof whom I was one. The research summarized in the book found that the โnecessaryโ 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 โincidentalโ 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), anย incidentalย power was one that met the following requirements:
*ย ย ย It was subsidiary toโless important thanโa listed or โprincipalโ power. Founding-Era lawyers said an incidental power had to be less โworthyโ than the principal.
AND:
*ย ย ย It was either
(i) aย customaryย way of exercising the listed power or
(ii)ย reasonably necessaryย to its exercise.ย Founding-Era lawyers summarized โreasonably necessityโ by saying that an incidental power had to be one that, if absent, would subject exercise of the principal power to โgreat prejudice.โ
Letโs consider an example: The Constitution grants Congress authority to regulate โCommerce . . . among the several States.โย That is a principal power.ย 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 โincidentalโ to the regulation of interstate commerce. But that claim really doesnโt wash, because manufacturing is at least as important an economic activity (as โworthyโ 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 โnecessaryโ as embracing only subsidiary powers is strange to us today. But thatโs the way Eighteenth Century legal documents used the term.
Why so? Well, โnecessary and properโ-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:
โad facienda exsequenda et expediendia omnia et singula et necessaria fuerint aut opportuna. . . . โ
(Iโve spelled out the phraseโs abbreviations.)
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Notice the wordsย necessariaย andย opportuna, the neuter plural forms ofย necessariusย (necessary) andย opportunus(proper).
In Latin, an important meaning ofย necessariusย 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 termย necessariaโโnecessaryโโ could come to refer to a power subsidiary and connected to larger power.
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