The clause has long been hotly debated. Madison, responding to Yates in Federalist 44, sought to tie the clause to the other powers in a luke-warm argument that made the clause sound like the least worst alternative the Framers faced. The Supreme Court weighed in with McCulloch v. Maryland in Any such law had to comply with both the letter and the spirit of the Constitution.
It was not enough that Congress could somehow connect a law to the form of one of its other powers. Pretextual uses of the necessary and proper, or any other clause, would be unconstitutional.
Thomas points out that the Comstock majority makes no attempt to show that the law itself directly carries into effect any enumerated power of Congress. At best, it does so through an attenuated chain, exactly as Jefferson criticized in his letter to Livingston.
The necessary and proper clause is not an isolated provision. It is part of the delicate balance of national and state powers the Framers established in the American version of federalism. Then-professor Woodrow Wilson and similarly-inclined academics charged that central tenet of Progressivism a century ago. How little has changed in the progressive world-view.
That is not the only way to interpret the clause. Instead, one might look at the clause as a single, undifferentiated provision and try to discern the range of laws that the Clause, viewed holistically and purposively, tries to authorize. If the Necessary and Proper Clause has a relatively broad scope, as the second vision and two centuries of case law has largely maintained, it provides constitutional authorization for much of the existing federal machinery.
If it has a narrower scope, as the first vision and a small but vocal group of Justices and scholars maintains, a great many federal laws that have been taken for granted for a long time might be called into question. The correct interpretation of the Necessary and Proper Clause might — just might — be the single most important question of American constitutional law. The Necessary and Proper Clause would have been familiar to Founding-era people from their everyday lives.
Then, as today, people often designated agents to act on their behalves in various circumstances, ranging from selling goods overseas to managing farms to serving as guardians for minor children. The legal documents creating those agency relationships would expressly identify the main, or principal , powers to be exercised by the agents.
Questions would naturally arise about whether the agents could exercise implied, or incidental , powers in carrying out their tasks. For example, could agents selling goods overseas agree to a sale on credit or could they only accept cash?
Could someone charged with managing a farm lease it to a third party or even sell the farm outright if an attractive offer came along? A legal document could try to specify some of those incidental powers, but to anticipate every circumstance would be both hopeless and expensive. It was drafted by a Committee of Detail consisting of four practicing lawyers familiar with writing agency documents and a businessman familiar with applying them.
Several important conclusions follow from the agency-law origins and character of the Necessary and Proper Clause. First, the initial question for a law enacted under the Clause is not whether the law is necessary, proper, or for carrying into execution other federal powers.
The initial question is always whether the law represents exercise of a truly incidental power or instead tries to exercise a principal power that would need to be specifically enumerated. In private law contexts, such questions were often informed by customs. By the late eighteenth century, for example, the power to manage a farm presumptively included as an incident the power to lease the farm, but it did not presumptively include the power to sell the farm.
If you wanted to let an agent sell the farm, you needed to spell that out as a principal power in the document. As is true with almost any plausible constitutional principle, applying the distinction between principal and incidental constitutional powers is not always easy. It is a close question as a matter of original meaning, for example, whether Congress can incorporate a national bank as an incident to its enumerated financial powers. But some questions are easy.
Pocket Constitution. The Federalist Papers. The Politically Incorrect Guide to the Constitution. The Ideological Origins of the American Revolution. Logical Foundations of Constitutional Liberty.
Maryland, 17 U. Marigold, 50 U. Barnow, U. Waddell, U. Mosley, U. See also Rakes v. May 17, Kebodeaux , U. Lee Optical Co. Bank of the United States, 22 U. See also Pittman v. Follows ex rel. Union Trust Co. Duncan, U. Kansas City Title Co. Greenman, U. Fenno, 75 U. See also Legal Tender Cases Knox v. Lee , 79 U.
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