Correcting the Record on Necessary and Proper

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.”

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 States”).  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.”  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.”  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 “proper”—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/