The Necessary and Proper Clause: Historical Background

Article I, Section 8, Clause 18:

[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.

Under the Articles of Confederation, the federal government's powers were limited to those “expressly delegated to the United States.” 1 Whether to maintain this limitation, or to provide broader or implied powers to the national government was a matter of debate at the Constitutional Convention. Under the South Carolina Plan of government presented by Charles Pinckney, the states would have retained all powers “not expressly delegated.” 2 Similarly, the New Jersey Plan would have slightly expanded federal power by amending the Articles of Confederation to add new enumerated federal powers.3 At the other extreme, Alexander Hamilton's plan would have empowered the national legislature to pass “all laws whatsoever,” subject only to the veto of the executive.4

The Virginia Plan of government, which ultimately became the blueprint for the Constitution, took a different approach. As presented to the Convention by Edmund Randolph, Resolution VI of the Virginia Plan would have granted Congress power to “legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” 5 Several delegates, including Pinckney and John Rutledge, objected to the vagueness of the word “incompetent,” 6 but a motion to replace this general statement with a specific enumeration of powers failed by an equally divided vote.7 On July 17, 1787, the Convention approved Resolution VI following an amendment by Gunning Bedford, resolving that Congress should have power to legislate “in all cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.” 8

On July 26, 1787, the Convention referred the amended Resolution VI (along with the other resolutions approved by the Convention) to the Committee of Detail, which developed the first draft of the Constitution.9 Ultimately, the Committee replaced Resolution VI's general statement of national legislative power with a list of enumerated powers (essentially those in the Articles of Confederation, plus a number of additional powers), followed by the Necessary and Proper Clause.10 Because the Committee of Detail did not keep any record of its deliberations, it is a matter of speculation why it made this change.11

Although there is no record of the Committee's motivations, it is possible to trace the drafting history of the Necessary and Proper Clause based on Committee's papers. In his markup of Randolph's draft Constitution, Rutledge added, at the end of the list of enumerated powers, that Congress shall have a “right to make all Laws necessary to carry the foregoing Powers into Execut[ion].” 12 In a subsequent draft, James Wilson expanded Rutledge's language to grant Congress power “to make all Laws that shall be necessary and proper for carrying into (full and complete) 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.” 13

On August 6, 1787, the Committee of Detail reported its draft Constitution to the Convention, which contained the Necessary and Proper Clause in its final form.14 The Convention unanimously approved Necessary and Proper Clause on August 20, 1787.15 There was no further substantial debate on the Clause during the Convention itself, although the three members of the Convention who declined to sign the Constitution—Randolph, George Mason, and Elbridge Gerry—all cited the breadth of the Necessary and Proper Clause among their objections to the document.16

Following the signing of the Constitution on September 17, 1787,17 the Constitution was submitted to the states for ratification pursuant to Article VII.18 During the ratification debates, opponents of the Constitution, such as Patrick Henry, strongly criticized the Necessary and Proper Clause.19 Antifederalists argued that the Clause would empower Congress to enact any law that it deemed to be necessary and proper, amounting to an open-ended, general grant of power for Congress to legislate on virtually any subject.20

Federalist proponents of ratification maintained that the Necessary and Proper Clause had a more limited meaning. In The Federalist No. 33, Alexander Hamilton maintained that the Clause was merely “declaratory” : the “unavoidable implication” of “constituting a [f]ederal [g]overnment, and vesting it with certain specified powers.” 21 The worst that could be said of the Clause, in Hamilton's view, is that it was “chargeable with tautology or redundancy.” 22 In The Federalist No. 44, James Madison agreed that even if the Constitution had been “silent” on this point, “there can be no doubt that all the particular powers, requisite as means of executing the general powers would, have resulted to the government . . . . No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authori[z]ed.” 23 If, as the Antifederalists feared, Congress should “misconstrue” the Clause and “exercise powers not warranted by its true meaning,” then “the executive and [the] judiciary” would act to stop the usurpation.24

Following the ratification of the Constitution, debate over the meaning of the Necessary and Proper Clause resumed almost immediately when the First Congress moved to create a national bank.25 Opposing the bank, Madison and Thomas Jefferson maintained that the Necessary and Proper Clause only empowered Congress to use “necessary” means, not means that were merely “convenien[t]” or “conducive” to the exercise of an enumerated power (such as the power to tax or borrow money).26 Alexander Hamilton, supporting the constitutionality of the bank, argued that “necessary” in this context means no more than “needful, requisite, incidental, useful, or conducive to,” and that Jefferson had misconstrued “necessary” as if “the word absolutely, or indispensably, had been prefixed to it.” 27 President Washington, apparently persuaded by Hamilton's view, signed into law the bill chartering the First Bank of the United States in 1791.28

Footnotes

1

Articles of Confederation of 1781, art. II ( “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” ). For more information on the history, origins, and original meaning of the Necessary and Proper Clause, see generally Gary Lawson et al., The Origins of the Necessary and Proper Clause 35–119 (2010); John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045, 1086–1106 (2014); Kurt T. Lash, “Resolution VI” : The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8, 87 Notre Dame L. Rev. 2123, 2134–41 (2012); Robert G. Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243, 267–73 (2004); Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 188–220 (2003); Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267, 297–326 (1993).

2

2 The Records of the Federal Convention of 1787, at 135 (Max Farrand ed., 1911) [hereinafter Farrand's Records]. Pinckney's plan was presented to the Convention on May 29, 1787, but it was neither debated nor voted on. See 1 Farrand's Records, supra note 2, at 16.

3

2 Id. at 242–43.

4

Id. at 291.

5

1 Id. at 21.

6

Id. at 53; 2 id. at 17.

7

See 2 id. at 17 (motion by John Rutledge for a “specification of . . . powers” failed 5-5). The Convention also rejected an alternative formulation of Resolution VI that would have empowered Congress to legislate “in all cases [which may concern the common interest of the Union].” Id. at 25–26 (brackets in original).

8

Id. at 26–27 (Bedford amendment); id. at 131–32 (final form as referred to the Committee of Detail).

9

Id. at 128.

10

Compare Articles of Confederation of 1781, art. IX with 2 Farrand's Records, supra note 2, at 181–82 (August 6, 1787 draft of the Constitution); see also Mikhail, supra note 1, at 1104-05 (highlighting the enumerated powers derived from the Articles of Confederation, versus those added by the Committee of Detail).

11

One view is that the Committee of Detail effectively rejected Resolution VI by adopting an enumeration of powers and the Necessary and Proper Clause. See Carter v. Carter Coal Co., 298 U.S. 238, 292 (1936) ( “The convention, however, declined to confer upon Congress power in such general terms [as Resolution VI].” ); Barnett, supra note 1, at 185 (characterizing the enumeration of powers as a “reject[ion]” of Resolution VI). Other scholars see the enumeration and the Necessary and Proper Clause as the Committee of Detail's attempt to “enact” Resolution VI. See Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 11 (2010). Another view is that Resolution VI was merely a “placeholder” provision: the Committee of Detail's enumeration served to identify the specific areas where the states were separately incompetent or where the general interests of the Union required federal authority. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 177–78 (1997); accord Clinton Rossiter, 1787: The Grand Convention 208–09 (1966) (describing the Committee of Detail's enumeration of powers as a “conver[sion]” of “the general resolution of law-making authority” approved by the Convention into a specific list of powers).

12

2 Farrand's Records, supra note 2, at 144. At the same time, Rutledge suggested that the Committee “Insert the II Article,” apparently referencing the Articles of Confederation's statement that all powers not “expressly delegated” are retained by the states. Id.

13

Id. at 168. The language in parentheses is crossed out in the original document. Id. at 163 n.17.

14

2 Farrand's Records, supra note 2, at 182. There are only stylistic differences (e.g., differences in capitalization) between the August 6, 1787 version and the version in the ratified Constitution. Compare id. with U.S. Const. art. I, § 8, cl. 18.

15

2 Farrand's Records, supra note 2, at 345.

16

Id. at 563 (Randolph); id. at 633 (Gerry); id. at 640 (Mason).

17

Id. at 648-49.

18

See infra ArtVII.1 Ratification Clause.

19

See 3 The Debates in Several State Conventions on the Adoption of the Federal Constitution 436–37 (Jonathan Elliot ed., 1891) (statement of Patrick Henry) (arguing that the “sweeping clause” would give Congress “unlimited power” ).

20

See, e.g., The Antifederalist No. 32 (Brutus V), in The Antifederalist Papers 82–86 (Morton Borden ed., 1965) (arguing that it is “utterly impossible to fully define” Congress's powers under the Necessary and Proper Clause, which would give Congress power to “pass any law which they may think proper” ); The Antifederalist No. 46 (An Old Whig II) in The Antifederalist Papers, supra note 20, at 131–32 (arguing that the Necessary and Proper Clause granted Congress “undefined, unbounded and immense power” ). These objections largely traced the views of George Mason, a dissenter at the Constitution Convention, who argued that the Necessary and Proper Clause would empower Congress to “extend their powers as far as they shall think proper.” 2 Farrand's Records, supra note 2, at 640.

21

The Federalist No. 33, at 204 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

22

Id. at 205.

23

The Federalist No. 44, at 304 (James Madison) (Clinton Rossiter ed., 1961).

24

Id. at 305.

25

The practice of the First Congress has been treated by the Supreme Court as probative of the original meaning of constitutional provisions. See, e.g., Marsh v. Chambers, 463 U.S. 783, 787–90 (1983) ( “An act 'passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, . . . is contemporaneous and weighty evidence of its true meaning.'” (ellipses in original) (quoting Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888), overruled in part by Milwaukee Cty. v. M.E. White Co., 296 U.S. 268 (1935))).

26

2 Annals of Cong. 1946–50 (1791) (speech of James Madison); Thomas Jefferson, Opinion on the Constitutionality of the Bill to Establish the Bank of the United States (Feb. 15, 1791), reprinted in Legislative and Documentary History of the Bank of the United States 93–94 (M. St. Clair Clarke & D.A. Hall eds., 1832) [hereinafter History of the Bank]; see also Edmund Randolph, Opinion on the Constitutionality of the Bill to Establish the Bank of the United States (Feb. 12, 1791), reprinted in History of the Bank, supra note 26, at 86–91.

27

Alexander Hamilton, Opinion of the Bill to Establish the Bank of the United States (Feb. 23, 1791), reprinted in History of the Bank, supra note 26, at 95–96 (emphasis omitted).

28

History of the Bank, supra note 26, at 85–86. The First Bank of the United States remained in operation during Jefferson's presidency, despite his earlier opposition. See id. at 115. However, The First Bank of the United States ceased operations after a vote in Congress to renew its charter failed by a single vote in 1811. Id. at 446. In 1816, President Madison, again despite his earlier view, signed into law a bill chartering the Second Bank of the United States. Id. at 713.