THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE

by Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman. New York: Cambridge University Press, 2010.

This is a curious book and, yet, a successful book. While the chapters that make up the book are written by different authors or sets of authors, and identified as such, the introduction makes a plea that this work be treated as a book and not an edited collection of essays. This plea gave me pause, but the three lines of research that began independently of one another do more or less come together to form a book. And the claim of Gary Lawson, Geoffrey P. Miller, Robert C. Natelson, and Guy I. Seidman is that the principle of fiduciary responsibility found in administrative law, the private law of agency, and corporate law can help us make sense of the “necessary and proper clause.”

As it happens, this is also a timely book. The necessary and proper clause has once again become central to debates about Congressional power – particularly with regard to health care reform. Indeed, if it was thought that Congress could easily reach health care under a broad reading of its power to regulate interstate commerce, scholars have shown that many of the most expansive readings of Congress’s power under the commerce clause, such as WICKARD v. FILBURN and GONZALES v. RAICH, are in fact best understood as rooted in the necessary and proper clause. Just how this clause ought to be understood, then, has become a pressing constitutional question.

The necessary and proper clause is often thought to have obscure origins. Almost nothing gets said about it at the Constitutional Convention, though it was the subject of much discussion in the ratifying debates. Added by the Committee of Detail, its precise language has often been obscure. It has even been referred to, in a somewhat overwrought manner, as a “constitutional stupidity.” This head scratching is not without cause. And yet one does wonder if this is an overly academic exercise in head scratching. After all, Chief Justice John Marshall’s opinion in MCCULLOCH v. MARYLAND offered a fairly powerful – if commonsensical – understanding of the clause that drew in part on Alexander Hamilton’s interpretation of the clause in the debates over the first National Bank in 1791. As Marshall argued, “But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the Convention, as manifested in the whole clause. To waste time and argument in proving that, without it, Congress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun. As little can it be required to prove, that in the absence of this clause, Congress would have some choice of means. That it might employ those which, in its judgment, would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government, were in themselves constitutional.” (MCCULLOCH, at 419)

According to Marshall, the clause was thus neither expansive nor contractive of Congressional power. It was, rather, a clause that sought to clarify. Joseph Story echoed this point in his COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES when he insisted “the constitutional operation of the government would be precisely the same if the clause were obliterated” (432). 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. And yet the relationship between necessary and proper has often been unclear. “Daniel Webster, in his brief to the Supreme Court in MCCULLOCH v. MARYLAND, suggested the justices should simply give up trying to make sense of the relevant terms: ‘these words, necessary and proper, . . . are probably to be considered as synonymous’” (154). There is great value in this volume as it elucidates the distinction between these words, illustrating the historical roots of the language of necessary and proper to reveal a coherent logic behind the phrase.

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 (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” (51). This leads the authors to conclude that the American Constitution “was a carefully constructed instrument” (51). This being so, the authors turn in a more focused manner to the riddle of “necessary” and “proper.”

In this effort, Lawson and Seidman, writing together, and Robert Natelson, writing separately, turn to agency law and the principle of fiduciary trust. The historical examination of public agency law is original, interesting, and compelling. Lawson, Seidman, and Natelson demonstrate a clear connection between public agency law and how we might best understand the necessary and proper clause. The fiduciary ideal was prominent in eighteenth century Whig philosophy (and earlier) and insisted that government had a fiduciary obligation to properly manage what it had been entrusted with by the people. If this required an obligation for the government to remain within the authority granted, the authority also included incidental powers (57).

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” (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.

As James Wilson argued at the Pennsylvania ratifying convention, the clause referred to the enumerated powers and granted Congress inherent powers to carry into effect its enumerated powers, not to legislate in general. Thus Congress could do things that were necessary and proper to carrying out its enumerated powers. Wilson’s argument – and others mustered by Federalists against the Anti-Federalist’s attacks on the “sweeping clause” – squares with the notion of Congress as exercising a fiduciary grant of power from the people and therefore bound by its terms. In Federalist, No. 33 Hamilton insisted the necessary and proper clause was a rule of construction, not itself a grant of power. Hamilton’s explanation suggested that a choice of means must by both necessary and proper (p.100). Madison would reiterate this argument in Federalist, No. 44 and at the Virginia ratifying debates put it specifically in terms of agency. James Iredell, who would later by appointed to the Supreme Court, similarly echoed this understanding, as did a number of other defenders of the Constitution. In fact, this included Edmund Randolph who, at the convention, had expressed reservations about the clause. Yet at the Virginia ratifying debates he insisted that the clause spoke to power already granted (105).

Natelson thus mount an impressive historical case that the principles of agency law and fiduciary trust can help us better understand the necessary and proper clause. Lawson and Seidman push the implications of this understanding in arguing that agency law further suggests that Congress’ power under the clause is limited to “principles of reasonableness” (121). Of course, this has been a much vexed standard within American constitutional law. Yet Lawson and Seidman seek to give this standard solid grounding by turning from agency law to administrative law. Here again they make a compelling case that private agency law parallels the public law and its principle of reasonableness. The crux of the argument is again to illustrate that even while the necessary and proper clause gives inherent powers, Congress is not the sole judge of the limits of [*138] inherent powers. Indeed, much like agency law, the principle of reasonableness requires that Congress exercise its powers based on its original grant of power. Situated within the structure of the Constitution, this means that the other branches of government have a role to play in holding Congress within its limits even when it acts under the necessary and proper clause.

This is further drawn out by Geoffrey Miller’s turning to the corporate law background. If the Constitution is often thought of as a sort of contract, this is given detail in examining the Constitution as a corporate charter. Given the textual language of the clause, it might be seen to derive not just from agency principles in general, but from a specific application of those principles – that is, corporate charters (146). Miller’s independent line of research in the corporate law background of the necessary and proper clause comes to reinforce the logic of public agency law in understanding the necessary and proper clause. And the key, again, is that the clause does not convey independent authority, but confines it to the terms of the charter. And, perhaps most importantly, it does not leave the judgment wholly to Congress as to the exercise of its power, but allows another – the Supreme Court – to check Congress’s grant of power (159). 

Drawing on private law, the authors make a powerful case for its influence on our understanding of the public law of the Constitution. It is an impressive historical and logical case, which gets reinforced from different perspectives – the private law of agency, and in particular corporate law, as well as the common law and administrative law – that are seen to be manifest in interesting ways in our fundamental public law. While much of this work situates historical debates in a more familiar way, it is interesting to see the parallels that have so long gone unnoticed. And it is difficult not to conclude these various aspects of law had an influence on the drafting of the American Constitution and the necessary and proper clause. This alone should make THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE an important work of interest to constitutional scholars and legal historians. The book, however, is also a provocative challenge to the mid twentieth century understandings of the necessary and proper clause. This is certainly not the aim of the work, but in challenging the conventional wisdom it makes a valuable contribution to our understanding of the American Constitution. Yet here the authors reveal a possible split. Some are clearly wed to a form of originalism (Lawson, Natelson, and Seidman), while at least one of them seems ambivalent on this score (Miller). Still, whatever one's interpretive framework, this book will be of wide ranging interest.

ADDITIONAL REFERENCES:
Story, Joseph. 1987. COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES. Durham: Carolina Academic Press.