Necessary and Proper Clause - History

Necessary and Proper Clause - History



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Necessary and proper clause - clause 18 of Article I, Section 8 of the US Constitution. This clause establishes the "implied powers," by which Congress has authority to pass legislation in areas not specifically listed in the Constitution.

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Elastic Clause

The Elastic Clause, also known as the “Necessary and Proper Clause,” is perhaps the most important clause in the U.S. Constitution, though it is also the most controversial. The Clause gives Congress the authority to use powers not explicitly named in the Constitution, if they are necessary in order to perform its responsibilities as outlined in the Constitution. In other words, Congress may do whatever is “necessary and proper” to do its job. To explore this concept, consider the following Elastic Clause definition.


What are Enumerated Powers

The U.S. Constitution specifically lays out the powers granted to Congress. While many people look to the powers specifically listed in Article 1, Section 8 of the Constitution, Congress is granted other powers in various sections of the document, subject to the limitations in the Bill of Rights. The term “enumerated” means to mention certain things one by one, or to specify certain things individually in a list. The powers specifically listed in Section 8 of Article 1 are referred to as “Enumerated Powers.”

The enumerated powers dictate how the branches of the federal government, including Congress can and should operate. There are some Congressional powers not specifically listed in the Constitution, but which are seen as obviously necessary to exercise the powers granted. These are referred to as “implied powers.”

As an example, some of the enumerated powers in the U.S. Constitution give Congress the power to:

  • Lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence [this spelling used in original document] and general Welfare of the United States but all Duties, Imposts and Excises shall be uniform throughout the United States
  • Establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States
  • Provide for the Punishment of counterfeiting the Securities and current Coin of the United States
  • Establish Post Offices and post Roads and
  • Create Tribunals inferior to the Supreme Court [tribunals refer to courts].

Necessary and Proper and Treasonous: All in a Day’s Work

Few days over the course of the summer of 1787 were as historically relevant as August 20. Time was dragging on and the weather was not helping. The delegates that had convened in the State House in Philadelphia in May were weary of the oppressive heat and the ideas for polishing off the draft presented on August 6 by the Committee of Detail were coming fast and furious. August was a busy month for the framers, particularly, Monday, August 20.

On that date, Charles Pinckney of South Carolina was particularly active after a restful Sabbath. Mr. Pinckney, along with the &ldquogentleman revolutionary&rdquo Gouverneur Morris, introduced a sketch of a proto-presidential cabinet Pinckney proposed (again) a slate of provisions which would later inform the Bill of Rights passed by the first Congress the report presented by the Committee of Detail on August 6 was debated, including one of the most contentious provisions, the &ldquonecessary and proper clause&rdquo and finally, the Constitutional definition of treason was hammered out by the delegates.

Charles Pinckney was twenty-nine years old at the time of the Convention. Despite his youth, he had already served for over a decade as a representative from South Carolina to the Continental and Confederation Congresses. His election to these bodies was little wonder as William Pierce described Pinckney as "intimately acquainted with every species of polite learning, [ and with] a spirit of application and industry beyond most Men."

Pinckney applied this spirit of application to the study of law and built a successful practice in his home state of South Carolina. Although one of the youngest and most ambitious delegates, Mr. Pinckney&rsquos unflinching pro-slavery stance vexed many of his fellow delegates, including many from the South, who favored the abolition of the noxious institution.

Apart from his divisive attitude advocating the perpetuation of the slave trade (which had existed in his world for so many generations he, unfortunately, would have been unlikely to have reflected sufficiently on its morality), Pinckney earned the respect of many of his colleagues for his quest to include a bill of rights written into the federal Constitution. Since his arrival on May 25, Pinckney offered several variations of a bill of rights for the consideration of the convention.

On August 20, he offered a new a list of fundamental rights he deemed worthy of explicit protection in the Constitution. Among those provisions proposed by Pinckney which eventually were included in the first ten amendments to the Constitution were the right to a writ of habeas corpus, as well as the freedom of the press. Without debate, Pinckney&rsquos proposal was referred to the Committee of Detail for consideration.

Apart from the brief list of privileges that he believed ought to be protected, Pinckney teamed with Pennsylvania&rsquos Gouverneur Morris and set out a sketch for a Council of State to act as advisers to the President and &ldquoto assist the President in conducting the public affairs&hellip.&rdquoPinckney and Morris recommended the Council of State be staffed by seven ministers. First, the Chief Justice of the Supreme Court would serve as the President of the Council in the absence of the President and he would &ldquofrom time to time recommend such alterations of and additions to the laws of the U. S. as may in his opinion, be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union.&rdquo

The second member of the Council would be a Secretary of Domestic Affairs. This was a sort of Secretary of the Interior, charged with a variety of duties such as &ldquoattend[ing] to matters of general police, the State of Agriculture and manufactures, the opening of roads and navigations&hellip.&rdquo

Third, the Secretary of Commerce and Finance, a man appointed by the President to &ldquosuperintend all matters relating to the public finances, to prepare & report plans of revenue and for the regulation of expenditures, and also to recommend such things as may in his Judgment promote the commercial interests of the U. S.&rdquo

Next was the Secretary of Foreign Affairs, the forerunner of the modern Secretary of State. The person nominated to fill this position would &ldquocorrespond with all foreign Ministers, prepare plans of Treaties, & consider such as may be transmitted from abroad and generally to attend to the interests of the U. S. in their connections with foreign powers.&rdquo

A Secretary of War was suggested by Pinckney and Morris, as well. Older readers will recognize this as the title of the office now (after a consolidation of two offices in 1947) designated as the Secretary of Defense. As originally conceived, the Secretary of War would &ldquosuperintend every thing relating to the war Department, such as the raising and equipping of troops, the care of military stores, public fortifications, arsenals & the like &mdash also in time of war to prepare & recommend plans of offence and Defence.&rdquo

Those were the most important offices to be filled in the President&rsquos cabinet as drawn up by the Pinckney/Morris plan. Over time, the organization so conceived would grow into a powerful coterie of near-celebrity policymakers with extraordinary, and certainly unexpected, influence.

Next, the attention of the attendees turned to the clause of the Committee of Detail&rsquos report that granted the new Congress power to &ldquomake all laws that 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.&rdquo

This provision, called the &ldquosweeping clause&rdquo by George Mason and others worried about the pernicious prospects of the acts that could be committed under its auspices.

When put to the vote, the &ldquonecessary and proper clause&rdquo passed unanimously and became the final clause of Article I, Section 8. The inclusion of such a seemingly tautologous clause was not in the original draft submitted to the Committee of Detail by Virginia Governor Edmund Randolph. Instead, John Rutledge of South Carolina inserted a similar sentence giving to Congress &ldquoa right to make all laws necessary to carry powers into execution.&rdquo While credit (or blame) for the eventual promulgation of the clause that has caused so much trouble could be given to Rutledge, comments were heard from other representatives earlier in the summer suggesting the same idea only in other words.

As stated above, remarkably the inclusion of the clause in the final draft offered to the Convention for a vote was approved without dissent. Given the words of Alexander Hamilton, James Madison, and others after the Convention and in the midst of the contentious state ratifying conventions, the reason for the unhindered passage of the proposed article was the notion shared by most of the delegates in Philadelphia that the clause did not expand the powers of Congress in any appreciable sense.

In The Federalist Papers, written pseudonymously by Hamilton, Madison, and John Jay and published in various newspapers, support for the theory of general agreement on the innocuous import of the phrase is found in the following response to the furor written by Hamilton:

The National Legislature to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect&hellip. It is expressly to execute these powers, that the sweeping clause&hellipauthorizes the National Legislature to pass all necessary and proper laws.

No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized wherever a general power to do a thing is given, every particular power necessary for doing is included&hellip.

Clearly, the Founders (especially those present at the Constitutional Convention in Philadelphia) did not consider the &ldquonecessary and proper&rdquo clause to be an increase in the already enumerated powers of Congress rather it was merely the somewhat redundant guarantee of the supplemental support for building the national government. Unfortunately, in this as in few other cases, the Founding Fathers missed the mark as the &ldquonecessary and proper&rdquo clause has become the inch-wide gap of ambiguity through which has passed a mile-wide column of congressional tyranny.

After a long day&rsquos labor, the convention postponed the debates on the power of Congress to tax and to regulate commerce, and moved on to the consideration of treason: what it meant, how it was to be proved, and how it should be punished.

Rather than re-invent the wheel, the Framers looked to the English Treason Statute of 1351 passed in the twenty-fifth year of the reign of Edward III. That law codified and curtailed the common law offence of treason.

Edward III&rsquos treason law bifurcated the crime of treason into high treason and petty treason &mdash high treason being defined as disloyalty to the Sovereign, and petty treason being defined as disloyalty to a subject. As the government of the United States was to be a federal republic, no such distinction was necessary.

The debate on this matter was animated and many amendments were moved, seconded, and put to a vote. The clause was dissected, debated, and defined. Some delegates esteemed the matter too important for a single day&rsquos deliberation and moved that the question by tabled. This motion failed and the carving and crafting carried on.

Finally, the article we know as Article III, Section 3 was passed. It should be noted, however, that there was one of the recommended changes that seems especially prescient given the controversy over nullification and states&rsquo rights that has developed in the wake of ObamaCare and the enactment of S.B. 1070 in Arizona.

Luther Martin of Maryland proposed the following amendment to the treason article: &ldquoProvided that no act or acts done by one or more of the States against the United States, under the authority of one or more of the said States shall be deemed treason or punished as such&hellip.&rdquo

As the foregoing illustrates, it is educational to review the record of the Constitutional Convention if for no other reason that to harness its power to illuminate the edges of the contested issues that still incite such controversy.


NECESSARY AND PROPER CLAUSE

The enumeration of powers in Article I, section 8, gives Congress the power to do such specific things as "regulate commerce … among the several States" and "raise and support Armies." At the end of the list is the 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." The antifederalists called this the "elastic clause" or the "sweeping power." They predicted it would centralize all governmental power in the national government. james madison denied this charge in the federalist #23. He observed that the clause spoke of power to execute only those powers that were specified elsewhere in the document, and that the power vested by the clause would have been implicit in the grant of other powers even without the clause. (See implied powers.) The clause, therefore, did not conflict with the principle of enumerated national powers, Madison argued. Events have vindicated Anti-Federalist fears.

thomas jefferson and alexander hamilton took opposing positions on the meaning of the word "necessary" in the clause during their debate in 1791 on the constitutionality of the first bank of the united states act. Hamilton argued that the nation needed a broad construction of congressional powers so that the government could employ a wide variety of means useful to the discharge of its responsibilities. Jefferson countered that a broad construction would enable Congress to encroach upon the reserved powers of the states whenever its measures might serve as means to ends within its enumerated powers. To safeguard states ' rights, such encroachments should be permitted only when "absolutely necessary," said Jefferson—only, that is, when failure to encroach would nullify the grant of federal power. Hamilton's view prevailed first with President george washington in 1791 and later in the Supreme Court, when john marshall's opinion in mcculloch v. maryland upheld the second national bank in 1819.

Marshall construed national powers in terms of a few authorized national ends. Most important, he understood the commerce power and related powers as authorizing the pursuit of national prosperity and the various military and diplomatic powers as authorizing the pursuit of national security. This ends-oriented conception of national powers was the view of The Federalist #41, which also gave greatest emphasis to the goals of national prosperity and security. When Marshall held in McCulloch that Congress could pursue its authorized ends without regard for the reserved powers of the states, he was saying, in effect, that Congress could do what it wanted to relative to state powers so long as it gave the right reasons. Marshall suggested a hierarchy of constitutional values, with state powers subordinated to Congress's version of national prosperity and security. The opinion thus brought virtually all state powers within Congress's potential control, because, with changing conditions, Congress might consider any social practice (education, for example) as an instrument of the nation's prosperity and security.

But to suggest that Congress can act for the right reasons is not to say that Congress can disregard states' rights at will. Marshall's theory of the necessary and proper clause was still consistent with the idea of enumerated powers because it presupposed a limited number of nationally authorized ends. Marshall thus stated that the judiciary would be prepared to invalidate pretextual uses of national power to reach ends reserved to the states. In the twentieth century, the Supreme Court refused to give effect to Marshall's commitment to invalidate pretextual uses of congressional power, thus fulfilling the Anti-Federalist prediction of what the clause eventually would be.

The Court first upheld pretextual uses of power as means to eliminating state bank notes in veazie bank v. fenno (1869) and margarine colored to resemble butter in McRay v. United States (1904). These acts were aimed at what Congress considered the nation's economic health. They were therefore valid under Marshall's theory of the commerce power. But, in the meanwhile, the Court had moved away from Marshall's conception to a limited view of the nation's commerce as those things that crossed state lines. Pretexts were necessary unless the Court chose to abandon this artificial view instead of correcting the mistake which necessitated pretexts, the Court established precedents for them. Later the Court upheld enactments that obviously were not aimed at the national goals implicit in Congress's enumerated powers. The Court thus upheld the taxing power as a weapon against drug abuse in united states v. doremus (1919) and the commerce power as a means of combating gambling, illicit sex, and other practices usually said to be reserved to the state police power, asin hoke v. united states (1913). These decisions turned Marshall's theory of the necessary and proper clause on its head. Where Marshall had upheld incursions into state powers as means to nationally authorized ends, the Court was now upholding national powers as means to state ends. As a result the national police power can today be used to reach an indefinite variety of purposes, and the necessary and proper clause authorizes almost anything that might be useful for addressing what Congress views as a national problem.

Limits on national power do remain in the bill of rights, in other sources of individual rights such as the civil war amendments, and in principles derived from the Constitution's institutional arrangements. Because the states do constitute a part of those arrangements, the Court still says it will protect various state rights to participate in federal government action, such as the right to equal representation in the Senate. But such states' rights limitations on national power are of little contemporary significance. For the most part, the necessary and proper clause has been construed in a way that has destroyed the notion that the enumeration of powers limits the national government.


James Madison and the Necessary and Proper Clause

“Necessary and proper” ranks among the most abused clauses in the Constitution. It has been dubbed the “elastic clause” because of the perception that it allows the scope of federal power to expand. The federal government began abusing this clause within years of ratification. In 1800, James Madison countered these early abuses, forcefully arguing that it’s not elastic at all and doesn’t give the government any additional powers.

The necessary and proper clause simply states that Congress has the 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.”

During the ratification debates, anti-federalist warned that the central government would abuse the clause to expand power, but supporters of the Constitution swore it would not. Even Alexander Hamilton argued that necessary and proper didn’t add to the government’s power. In Federalist #33, Hamilton addressed both the necessary and proper clause and the also oft-abused supremacy clause.

“It may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.”

It didn’t take long for proponents of centralized federal power to turn to the necessary and proper clause to justify unconstitutional actions. In 1798, Congress passed the Alien and Sedition Acts. Two of the acts relating to aliens gave the executive branch broad authority to deport non-citizens living in the U.S. without due process. Opponents argued the Alien Acts violated the Fifth Amendment and unconstitutionally vested judicial powers in the hands of the president. The Sedition Act essentially outlawed criticism of the president and Congress. It was a clear violation of the First Amendment.

Among their many arguments, supporters of the Alien and Sedition Acts pointed to the necessary and proper clause to justify this usurpation of power. James Madison took them to task in his Report of 1800.

The Report was a lengthy defense of the Virginia Resolutions of 1798. Madison drafted these resolutions in response to the Alien and Sedition Acts. They asserted states “have the right, and are in duty bound to interpose” when the federal government engages in a deliberate, palpable, and dangerous exercise of undelegated powers. They also laid out a case condemning the acts as unconstitutional. In the Report of 1800, Madison addressed every justification used by supporters of the Alien and Sedition Acts in exacting detail, including their appeal to the necessary and proper clause. Madison echoed what Hamilton had written years earlier, arguing that the clause does nothing to expand the powers of the general government,

“The plain import of this clause is, that Congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.”

Madison went on to offer a simple 2-step process to determine the constitutionality of any federal action.

“Whenever, therefore a question arises concerning the constitutionality of a particular power the first question is, whether the power be expressed in the constitution. If it be, the question is decided.

If the a delegated power exists authorizing the federal action, that settles the issue. Nobody argues that the federal government can run the Post Office. Article 1 Sec. 8 explicitly authorizes this. But if we find no delegated power, Madison prescribes a second step.

“If it [the power] be not expressed the next enquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not Congress cannot exercise it.”

In other words, if the federal action is absolutely necessary to carry out a power clearly spelled out in the Constitution, and it is a proper, or customary, way of doing so, then, as Madison put it, “it may be exercised by Congress. If it be not Congress cannot exercise it.

Legal documents delegating power to an agent often contain a necessary and proper clause. It has a precise, specific legal definition that was well-understood in the founding era. in simplest terms, a necessary and proper clause authorizes an agent to exercise powers not explicitly spelled out in the legal document, but necessary to execute the specific authority given to him. It serves as a kind of shorthand and eliminates the need to list every incidental power the agent can exercise.

Imagine I enter into a contract with somebody to manage my grocery store. If I stipulates that she has all of the powers “necessary and proper” to running a grocery, I don’t have to to specify that she has the authority to pay a guy to clean the floors, or to hire a mechanic to fix a freezer when it goes down, or to pay the Coca Cola vendor, Those powers are proper and customary to running a grocery store. But necessary and proper powers wouldn’t give my new manager the authority to give away all of the food items in my store and turn it into a pornography shop. That would not be necessary, nor would it be proper.

Judges and elected officials have expanded the meaning of necessary and proper far beyond its meaning. They have effectively turned it into the anything and everything clause. Madison clearly argues this was not the intent.


Necessary and Proper Clause

Hugh Williamson, delegate from North Carolina

The New York Public Library. www.nypl.org

Necessary and Proper Clause

" … I flatter myself greatly if we have not sustained it [the business of the Convention] with a Principle & firmness that will entitle us to what we will never ask for, the thanks of the public. It will be sufficient for us if we have the satisfaction of believing that we have contributed to the happiness of Millions."

- Hugh Williamson to Governor Caswell of North Carolina

Charles Pinckney (SC) submitted a number of propositions for the Committee of Detail. Gouverneur Morris (PA), seconded by Mr. Pinckney submitted a proposal for a Council of States, composed of the Chief Justice, and the Secretaries of Domestic Affairs, Commerce and Finance, Foreign Affairs, War, Marine [Navy] and a Secretary of the Council of State.

The power to call forth the militia was postponed pending determination of the power to regulate it.

"And to make all laws 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." . " was taken up.

The very broad grant of power to the Federal Government was approved without opposition.

Article VII, Section 2, dealing with Treason was then taken up. Debate concerned how broad the definition should be and, whether or not treason against the individual states should be included. The debates showed a thorough knowledge of British statute law on the subject. The section was substantially amended and agreed to.

Ellsworth (CT) then moved to require a census within 3 years of adoption instead of six years. It was approved. Gerry (MA) moved that, until the census was taken, direct taxes should be apportioned as was the number of representatives. Langdon (NY) and Carroll (MD) opposed.


1. Raiders of the lost clause: excavating the buried foundations of the Necessary and Proper Clause
2. Discretionary grants in eighteenth-century English legislation
3. An ocean away: eighteenth-century drafting in England and America
4. The legal origins of the Necessary and Proper Clause
5. The framing and adoption of the Necessary and Proper Clause
6. Necessity, propriety, and reasonableness
7. The corporate law background of the Necessary and Proper Clause.

Gary Lawson, Boston University School of Law
Gary Lawson is a Professor of Law and the Abraham and Lillian Benton Scholar at Boston University School of Law. Professor Lawson has authored (with Guy Seidman) The Constitution of Empire: Territorial Expansion and American Legal History, five editions of a casebook on Federal Administrative Law, and more than sixty articles in law reviews and other journals.

Geoffrey P. Miller, New York University School of Law
Geoffrey P. Miller is the Stuyvesant P. Comfort Professor of Law at New York University Law School. Miller is the Director of NYU Law School's Center for the Study of Central Banks and Financial Institutions and is a founder of the Society for Empirical Legal Studies.

Robert G. Natelson, University of Montana School of Law
Robert G. Natelson is Professor of Law at the University of Montana. He is an expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitution's meaning.

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