Necessary and Proper Clause

Meaning of the Necessary and Proper Clause

The Necessary and Proper Clause simply clarifies Congress has the power to pass laws enabling the federal government to carry out incidental functions relating to the Enumerated Powers. Sounds a little convoluted, but it’s easiest to think of the Necessary and Proper Clause as being totally superfluous and unnecessary. The Necessary and Proper Clause does not augment or enlarge the legislative powers of Congress. In Federalist 33, Alexander Hamilton, hardly a proponent of limited government, assured the state of New York that, “it may be affirmed with perfect confidence that the constitutional operation of the [federal government] would be precisely the same, if [the Necessary and Proper Clause] were entirely obliterated.”

Necessary and Proper Clause

Necessary and Proper Clause

If the Necessary and Proper Clause were a sweeping, independent grant of federal power, then this one clause would render the Enumerated Powers meaningless and superfluous. There are seventeen specific powers listed immediately before the Necessary and Proper Clause. If the Necessary and Proper Clause was a “sweeping” or “elastic” grant of federal legislative power, then why bother listing the other powers immediately prior?

A basic tenant of contract law and interpreting legal documents is that a document must be interpreted in a logically consistent manner. One part of a legal document cannot be interpreted such that another part of the same document becomes illogical or inconsistent with the other. In Thomas Jefferson’s protest against Hamilton‘s proposed First Bank of the United States, Jefferson noted, “It is an established rule of construction, where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which will render all the others useless.” Accordingly, it makes no sense to interpret the Necessary and Proper Clause as a sweeping, general legislative power since that would create a logical inconsistency with the rest of the enumerated powers, rendering the enumerated powers redundant and totally unnecessary.

Examples – Intended Meaning of the Necessary and Proper Clause

As a simple example of Congress’ power under the Necessary and Proper Clause, Congress was not delegated a power to criminalize mail theft or the destruction of mailboxes. However, Congress was delegated the power to “establish Post Offices and Post Roads.” Thus, criminalizing mail theft or the destruction of mail boxes seems to be a legitimate and Constitutional exercise of power under the Necessary and Proper Clause since this law may be both necessary and proper to carry into execution Congress’ power to establish post offices and post roads to deliver mail throughout the country.

As another simple example, Article 1, Section 8 did not grant Congress explicit authority to purchase wood or steel. However, these materials, among many others, are necessary for constructing war ships. Congress was delegated the power, “To provide and maintain a navy.” As such, it seems both necessary and proper for Congress to have the authority to purchase these materials that are necessary for carrying into execution the Enumerated Power to provide and maintain a navy. For any number of other Enumerated Powers, Congress would need to purchase land and erect buildings. The Necessary and Proper Clause is really just meant to clearly grant this ancillary authority.

Improper Interpretation of the Necessary and Proper Clause

McCulloch v. Maryland and the Necessary and Proper Clause

Federal courts and school teachers generally refer to the Necessary and Proper Clause as the “Sweeping Clause,” or the “Elastic Clause.” The federal courts have interpreted the Necessary and Proper Clause as a largely independent grant of “implied” federal power granting Congress virtually unlimited legislative authority. It cannot be said that this is a modern misinterpretation, as with the Commerce Clause and various other significant parts of the Constitution. This misinterpretation dates back at least as far as Chief Justice John Marshall and the controversy over the rechartering of the Bank of the United States in the landmark case, McCulloch v. Maryland.

For a masterful and concise discussion of McCulloch v. Maryland, click here.

In short, Chief Justice Marshall’s opinion in McCulloch v. Maryland stated the Constitution was ratified by the American people in the aggregate, rather than by an agreement between the states (with the states representing the people of each state), and that the Constitution delegated certain Enumerated Powers, but also granted Implied Powers. As such, according to Marshall, creating a central bank was a legitimate and constitutional exercise of federal power.

Necessary and Proper Clause Assurances in the Virginia State Ratifying Convention

Chief Justice Marshall’s decision in McCulloch v. Maryland was so blatantly inconsistent with the iron logic of the Constitution and Bill of Rights, and the reassurances provided to the Anti-Federalists in the state ratifying conventions, that Marshall’s decision plainly illustrates the partisan and political nature of the federal courts.

John Marshall was a delegate in the Virginia state ratifying convention in 1788. Marshall sat in silence as Governor Edmund Randolph and George Nicholas told the Anti-Federalists, and those skeptical of the Constitution, what they wanted to hear. Randolph and Nicholas articulated the Compact Theory of the Union to the delegates of the state ratifying convention and reiterated that Congress would only have those powers expressly delegated in the Constitution. In other words, Randolph and Nicholas asserted Virginia would be ratifying a partnership agreement with twelve other partners to create an agent with delegated, enumerated powers. In addition, Randolph and Nicholas asserted the federal government could only exercise those powers expressly delegated in Article 1, Section 8.

Why didn’t John Marshall speak up during the convention if Randolph and Nicholas were incorrect in their understanding of the Union and the scope of the Necessary and Proper Clause? Because Marshall knew Virginia would never ratify the Constitution under the nationalist terms Marshall wanted to impose. Instead, John Marshall sat silent and waited until he was Chief Justice of the Supreme Court to foist his views upon the Union. These views held by Marshall were wholly inconsistent with America’s history up to that time, and with the assurances made in the several state ratifying conventions.

Improper Interpretation – Necessary and Proper Clause Trumps Tenth Amendment?

John Marshall’s McCulloch v. Maryland opinion even cited the Tenth Amendment as an excuse for increasing Congress’ power under the Necessary and Proper Clause. Article 2 of the Articles of Confederation said, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” The Tenth Amendment to the Constitution says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Marshall cited the absence of the word, “expressly” in the Tenth Amendment as an implied grant of additional power and flexibility to the federal government. However, the Bill of Rights, and the Tenth Amendment in particular, simply made explicit what was already implicit in the logic of the Constitution. Namely, that the federal government could only exercise its delegated powers.

In the state ratifying conventions (particularly in Massachusetts, New York, Pennsylvania, South Carolina and Virginia), various Federalists used the words, “expressly delegated” to describe the scope of Congress’ Enumerated Powers. In addition, most state ratification documents included proposed language for State Sovereignty Amendments to be included as part of an eventual federal Bill of Rights. These proposed State Sovereignty Amendments generally included the words, “expressly delegated.” That the state sovereignty amendment (the eventual Tenth Amendment) Congress eventually proposed did not include the word “expressly” cannot be construed in favor of federal power with any semblance of intellectual integrity.

Background on John Marshall

John Marshall

John Marshall

John Marshall was a politician cloaked in a judge’s robe. John Marshall even used his most famous decision, Marbury v. Madison, 1803, as a pedestal for establishing the doctrine of Judicial Review in a case Marshall ultimately dismissed for lack of jurisdiction. Instead of just dismissing the case for lack of jurisdiction, Marshall espoused the doctrine of Judicial Review while badgering the newly elected Thomas Jefferson with the dicta of the decision. Moreover, John Marshall should have recused himself from the case because he was an interested party with a conflict of interest. John Marshall, while previously acting as Secretary of State, affixed the seal to William Marbury’s commission. This commission that Thomas Jefferson refused to deliver to William Marbury was at the heart of the dispute in Marbury v. Madison.

John Marshall was hardly acting as an impartial judge in Marbury v. Madison, and he was clearly not delivering the opinion of a disinterested, objective judge in McCulloch v. Maryland. Given his background, what credibility should be placed on either of these decisions? It should be clear to any reasonable, fair-minded person that John Marshall’s opinions in at least these two cases were purely political in nature. Marshall’s decision in McCulloch v. Maryland was particularly destructive because of the judicial precedent it set in misinterpreting and misconstruing the federal government’s authority under the Necessary and Proper Clause. John Marshall was an early adherent to eventual Supreme Court Justice William Brennan’s stated belief that, “with five votes you can do anything around here.”

United States Constitution – Necessary and Proper Clause

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.