The Necessary And Proper Clause

DEBATING THE NECESSARY AND PROPER CLAUSE

Samples debates from the book The Origins Of The Necessary And Proper Clause

“Why, then, have the clause? It made clear that Congress would have the power to carry out the ends entrusted to it. But this did not mean Congress could do anything it chose to do. If the necessary and proper clause has often been referred to as the “elastic clause,” or the “sweeping clause” because it recognized incidental powers, this did not necessarily entail casting off all limits to its scope.”

“THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE begins with a sweeping survey of British statutes from the eighteenth century that granted power to illustrate, essentially, that they had little influence on American practice. Gary Lawson and Guy Seidman conclude that American practice is an “ocean apart” from British practice. The larger point of this preliminary and thorough analysis is to demonstrate “a care in drafting” statutes and constitutions in America that did not clearly exist across the ocean (p.47). This also reveals that “language mattered” and those who first interpreted the necessary and proper clause – Thomas Jefferson, Alexander Hamilton, James Madison, and John Marshall – all acted “on that assumption” (p.51). This leads the authors to conclude that the American Constitution “was a carefully constructed instrument” (p.51). This being so, the authors turn in a more focused manner to the riddle of “necessary” and “proper.””

“Turning to the drafting of the Constitution, Natelson argues that members of the Convention had not only been exposed to the ideal of fiduciary trust, but tended to think of government in terms of agency. This may be particularly so of the Committee of Detail as all but one of its members were lawyers. The crucial aspect of this analysis is that “proper” was not simply thrown in as a reiteration of “necessary.” As Natelson argues, “The word ‘necessary’ was inserted into the proposed Constitution to communicate that Congress would enjoy incidental powers. The separate insertion of the word ‘proper’ strongly suggests it had a meaning separate from necessary, and almost certainly a restrictive one” (p.93). And, in this case, proper was a reference to Congress’ fiduciary responsibilities. Thus even if it had implied powers, it needed to exercise them in a manner consistent with its delegation of powers – that is, in a “proper” fashion.”

The Origin Of The Necessary And Proper Clause
http://www.lpbr.net/2011/03/origins-of-necessary-and-proper-clause.html

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