LIBERTY UNIVERSITY
HELMS SCHOOL OF GOVERNMENT
Constitutional Interpretation of the Necessary and Proper Clause
Submitted to Dr. Timothy O’Brien,
in partial fulfillment of the requirements for the completion of
PLCY 703 – D01
Contemporary Challenges to Constitutional Order and the Role of the State
by
Robert H. Carey, Jr.
July 19, 2022
1
Summary
Tocqueville told listeners in Paris “Free peoples, above all, have always been great
proceduralists; they have drawn in good part from forms for the defense of their liberty, and one
has seen them oppose power more advantageously with the thousand little formalities procedure
furnishes than with the general rights guaranteed by the constitution…”.1 Given that, it is not the
written words of the U.S. Constitution alone which defend the liberties of the States and the
People, but the forms and procedures which will ultimately guarantee that liberty. The
Necessary and Proper Clause, ostensibly drafted to enable the Congress to execute its
enumerated powers, when freed from such shackles by a zealous and nationalist Supreme Court,
however, can also be used as the very tool to weaken those liberties of the States and the People,
and allow the federal government to grow vastly in size and power.
Original Intent of the Necessary and Proper Clause – the Constitutional Convention
The drafters and Federalist ratification supporters of the U.S. Constitution viewed the
Necessary and Proper Clause as the institutionalized procedure needed to maintain the States’
sovereignty supported by the Constitution’s division of powers. And a key element in
determining what that procedure is meant to be is to analyze the procedures and steps taken to
draft such language. Unfortunately, the proceedings of the Constitutional Convention provide
limited insight on the drafters’ deliberations on the Necessary and Proper Clause, first because
the “"the accounts of the 1787 Constitutional Convention are silent on the meaning of the
necessary and proper power”,2 and second, because where the Convention – and specifically the
1 Alexis de Tocqueville, “Speech Given to the Annual Public Meeting of the Academy of Moral and
Political Sciences on April 3, 1852,” in Alexis de Tocqueville and the Art of Democratic Statesmanship, trans. L.
Joseph Hebert, ed. Brian Danoff and L. Joseph Hebert, Jr. (Lanham, MD: Lexington Books), 24.
https://ebookcentral-proquest-com.ezproxy.liberty.edu/lib/liberty/detail.action?docID=1032004.
2 David E. Engdahl. “What's in a Name? The Constitutionality of Multiple "Supreme" Courts.” Indiana
Law Review 66, iss. 2 (1991): 457. https://www.repository.law.indiana.edu/ilj/vol66/iss2/3.
2
Convention’s Committee of Detail proceedings – do discuss the Necessary and Proper Clause, it
is in terms far more capacious than that originally introduced, but which was then further
circumscribed and limited in the Convention’s deliberative process. For example, Committee of
Detail member James Wilson’s proposed an amendment to further circumscribe the nearly
limitless legislative powers first proposed by fellow Committee member Edmund Randolph. But
even then, the text of the Necessary and Proper Clause we see today in Article 1, Section 8,
Clause 18 of the Constitution is in even more circumscribed than that debated by Wilson and
Randolph. Specifically, the Committee’s final report separated the term “the foregoing Powers”
from “all other powers vested, by this Constitution…”, but in Wilson’s original proposed text,
the words “the foregoing Powers, and” are stricken, and as Engdahl postulates, by Wilson
himself. Engdahl further suggests, “at its origin, the [Necessary and Proper] clause was
conceived less as auxiliary to the other legislative powers than as authorization for the legislature
to resolve all those matters of governmental organization which the Constitution itself might not
address, including judicial organization and work load allocation.”3 Additional amendments
were rejected regarding this clause, and then today’s version of the Necessary and Proper Clause
was adopted by the Convention without dissent. Engdahl concludes, “This parliamentary
episode confirms that the principal function of the "necessary and proper" clause then was
perceived by the members of the Convention to be the authorization of Congress to make
appropriate decisions, not dictated by the Constitution itself, for organizing the branches of the
government. In other words, at the outset its "horizontal effect" was conceived to be the
paramount effect of what ought never to have been called "the sweeping clause…".4 Natelson5
3 Ibid., 483.
4 Ibid., 484, note 134.
5 Robert G. Natelson, “The Framing and Adoption of the Necessary and Proper Clause.” in The Origins of
the Necessary and Proper Clause, ed. Gary Lawson et. al., (New York: Cambridge University Press, 2010), 93.
https://web-s-ebscohost-com.ezproxy.liberty.edu/ehost/ebookviewer/ebook/bmxlYmtfXzMyNDAyNl9fQU41?
sid=53b9345f-7e14-4b83-83a3-1b585af60b81@redis&vid=0&format=EB&rid=1.
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and Barnett6 both share that assessment of the chronology, methodology, and impact of the
Committee’s and Convention’s adjudication of the clause on the Convention’s understanding of
the Necessary and Proper clause.
The treatment of the word “proper” is also important to understanding the Original Intent
of the Necessary and Proper Clause. As Natelson details, the word “proper” went through a
similar specific and detailed process of consideration as did the overall clause, with the
Committee of Detail specifically adding it to the initial Committee draft text of Article I of the
Constitution, and thereby clearly indicating they viewed that word “proper” as separate and
distinct from the word “necessary.” This comports with Samuel Johnson’s preeminent
dictionaries of the day, both the 1755 and the 1785 editions, which defines “proper” as, “1.
Peculiar; not belonging to more; not common" and "5. Fit; accommodated; adapted; suitable;
qualified.”7 In this case, a “proper” law is one that already “fits with” the specific, “peculiar”,
and “suitable” powers with which Congress is already vested. Not more. To complete this,
Natelson summarizes the overall original intent of the Necessary and Proper Clause during its
consideration at the Constitutional Convention
Except for the dissents of Mason and Gerry, the convention records strongly
corroborate the view of the Necessary and Proper Clause that one could deduce
from contemporaneous legal usage of similar provisions: 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.8
Original Intent of Necessary and Proper Clause – Ratification
6 Randy E. Barnett, “The Original Meaning of the Necessary and Proper Clause.” Working Paper No. 03-
11 (Boston: Boston University School of Law, 2003), 3. http://dx.doi.org/10.2139/ssrn.410542.
7 Samuel Johnson, A Dictionary of the English Language: in Which the Words Are Deduced From Their
Originals, Explained in Their Different Meanings and Authorized by the Names of the Writers in Whose Works They
Are Found, Vol 2 (London: A. Millar, 1766), 121.
https://archive.org/details/dictionaryofengl02johnuoft/page/n3/mode/2up.
8 Natelson, “Framing and Adoption,” 93.
4
While the Original Intent of the Constitution’s drafters is important, what gives
this Constitution its legal force is its ratification by the People, exercising their ratification
through the States’ ratification conventions.9. Therefore, the Original Intent of the Constitution
must rely upon the deliberations of the various State ratifying conventions, and only those
conventions. The Federalist Papers and Anti-Federalist Papers are of limited direct relevance
to any level of Constitutional interpretation because however articulate and persuasive they may
be, they do not represent what the ratifying conventions decided in their deliberations. The only
thing which can be referenced legitimately in discerning the ratifiers Original Understanding of
the Constitution they considered is to review the proceedings of their deliberations, and the
motions, amendments, and votes they may have taken. Strang argues for a very expansive
definition of Original Understanding where “The first step of originalist interpretation is…to
review a large body of documents contemporary with the constitutional text’s ratification, to…
ascertain from the word or phrase’s repeated usage in different contexts...”10
Natelson details the founders’ rules for legal interpretation, first describing “original
understanding” as reading the text “as it was understood by the ratifiers”, and, when that is not
possible, proceed to “original public meaning” which asks what a “reasonable man” who is a
ratifier would understand those words to be. But Natelson is clear “The intent of the delegates at
the drafting convention (“original intent”) has no direct legal force, but often provides evidence
of the understanding or meaning at the time of ratification.”11 Therefore, the comments of the
ratifiers at the ratifying conventions are most important. For example, likening the relationship
9 US Constitution, art. 7, cl. 1. https://www.archives.gov/founding-docs/constitution-transcript.
10 Lee J. Strang, Originalism's Promise: A Natural Law Account of the American Constitution,
(Cambridge: Cambridge University Press, 2019): sec. 2.3.3.2. https://doi.org/10.1017/9781108688093.002.
11 Gary Lawson, The Origins of the Necessary and Proper Clause (New York: Cambridge University
Press, 2010), 84. https://search.ebscohost.com/login.aspx?direct=true&db=nlebk&AN=324026&site=ehost-
live&scope=site.
5
of the proposed federal government as an “agent” of the People, much as an individual or
company would hire an agent under a contract, Henry Lee at the Virginia Ratifying convention
explores what the word “proper” may mean:
in the federal government, the rulers of the people were vested with certain
defined powers, and that what were not delegated to those rulers were retained by
the people…[I]f a man delegated certain powers to an agent, it would be an insult
upon common sense to suppose that the agent could legally transact any business
for his principal which was not contained in the commission whereby the powers
were delegated.”12
In other words, it would be improper. Such a distinct usage of the word “proper” is continued at
the Pennsylvania Ratifying convention when James Wilson talked of an Anti-Federalist’s
contention that “improper powers are ... blended in the Senate",13 or that a bill of rights would be
"not only unnecessary, but improper”,14 “not only unnecessary, but preposterous and
dangerous…”.15 Likewise, Samuel Spencer at the North Carolina ratifying convention intoned,
“[i]t might not be so necessary to have a bill of rights...but at any event, it would be proper to
have one.”16
Ratification, the Bill of Rights, and Originalist vs. Textualist Interpretation of the
Constitution
But just as they had in the Anti-Federalist Papers, many of the critics of the Necessary and
Proper Clause still thought it too expansive and wanted it curtailed even further. Robert Yates is
believed to have been the pen behind the pseudonymous author Brutus, who most publicly raised
12 Henry Lee, Debates in the Several State Conventions of the Adoption of the Federal Constitution, as
Recommended by the General Convention at Philadelphia, in 1787 [hereinafter Elliot’s Debates], Vol. III, ed.
Jonathan Elliot (Washington, DC: Library of Congress, 1836), 186. https://memory.loc.gov/cgi-bin/query/r?
ammem/hlaw:@field(DOCID+@lit(ed0031)).
13 James Wilson, Elliot’s Debates, Vol. II, 505. https://memory.loc.gov/cgi-bin/query/r?
ammem/hlaw:@field(DOCID+@lit(ed0021)).
14 Ibid., 453.
15 Ibid., 436.
16 Samuel Spencer, Elliot’s Debates, Vol. IV, 138. https://memory.loc.gov/cgi-bin/query/r?
ammem/hlaw:@field(DOCID+@lit(ed0044)).
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this alarm in his Anti-Federalist Paper Brutus I, where he admitted, “some small degree of
power is still left to the states, but a little attention to the powers vested in the general
government, will convince every candid man, that if it is capable of being executed, all that is
reserved for the individual states must very soon be annihilated.” Still, Brutus was unflinching
in his perspective on the nature of Man when in positions of power:
Besides, it is a truth confirmed by the unerring experience of ages, that every man,
and every body of men, invested with power, are ever disposed to increase it, and
to acquire a superiority over every thing that stands in their way. This disposition,
which is implanted in human nature, will operate in the federal legislature to
lessen and ultimately to subvert the state authority, and having such advantages,
will most certainly succeed, if the federal government succeeds at all.17
It would still be three years before the Bill of Rights Amendments were adopted by
Congress and the States, but the qualifications many of the States placed upon their ratification
decisions, while not binding on the new federal government or the other States, was apparently
part of a “gentlemen’s agreement” between Federalist and Anti-Federalist advocates, most
significantly by James Madison, George Mason of Virginia, and the Massachusetts ratifying
convention delegates with a Federalist promise to bring such a Bill of Rights to the floor of
Congress as soon as possible in exchange for the States to ratify the Constitution.18 For example,
the Pennsylvania Ratifying Convention final ratification resolution agreed to ratification but still
laid a “grand object of obtaining very considerable amendments and alterations, which we
consider essential to preserve the peace and harmony of the Union…That it is necessary to
obtain a speedy revision of said Constitution, by a general convention” and then petitioning the
Commonwealth of Pennsylvania’s legislature to make application for such a convention as
17 [Robert Yates?], “Brutus, no. 1,” in The Founders’ Constitution, Vol. I, (Chicago: University of Chicago
Press, 1981 (Orig. 1787)): ch. 8, doc. 13. https://press-pubs.uchicago.edu/founders/documents/v1ch8s13.html.
18 National Constitution Center, “Eight Basic Fact About the Bill of Rights,” in Interactive Constitution
(Philadelphia: National Constitution Center, December 15, 2019). https://constitutioncenter.org/interactive-
constitution/blog/everything-you-ever-wanted-to-know-about-the-bill-of-rights-2.
7
provided in Article V of the proposed Constitution.19 Likewise, Massachusetts went through a
similar process to “assent to and ratify the said Constitution…”.20 And apparently to make good
on that gentlemen’s agreement James Madison, as a new Representative in the federal
government’s House of Representatives, drafted an original 12 amendments which were reduced
through Congress’ adjudicative processes to the ten the U.S. Constitution has today,
Interpretation of the Necessary and Proper Clause – McCulloch v. Maryland
In Holmes v. Jennison, Supreme Court Chief Justice Taney wrote the ruling opinion, in
which the Court laid out even more Tocquevillian procedures for Constitutional interpretation:
In expounding the Constitution of the United States, every word must have its due
force and appropriate meaning, for it is evident from the whole instrument that no
word was unnecessarily used or needlessly added… Every word appears to have
been weighed with the utmost deliberation, and its force and effect to have been
fully understood. No word in the instrument, therefore, can be rejected as
superfluous or unmeaning…21
Unfortunately, Chief Justice Taney could not time travel back to 1819 and advise then Chief
Justice Marshall on such principles of Constitutional interpretation and construction.
For the Supreme Court under Chief Justice John Marshall was no friend of Originalism, even
though the wording of its decisions would argue otherwise. Even when Chief Justice Marshall
appears to opine in support of such Originalist principles of interpretation and construction, he
does not appear to believe it, instead ruling on what he thought expedient then, not on what an
Original Understanding of the Necessary and Proper Clause would produce.
While the Marshall Court initially just dipped its toes into the interpretive issues of
Congressional powers through its early cases, by the time McCulloch v. Maryland was on its
19 Blair M’Clenahan, Chairman, “Proceedings of the Meeting at Harrisburg, in Pennsylvania,” in Elliot’s
Debates, Vol II, 543, 545f. https://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(ed0028)).
20 Ibid., 177.
21 Holmes v. Jennison, 39 US 540 (1840): 570-571. https://supreme.justia.com/cases/federal/us/39/540/.
8
docket, it decided to dive in headfirst. The Marshall Court, in a unanimous decision regarding
the Constitutionality of a national bank, interpreted the word “necessary” to mean “needful,”
“requisite,” “essential,” or “conducive to,” setting an exceptionally low bar for Congress to meet.
In fact, the Marshall Court decision gives Congress free writ of passage over the limitations of
enumerated powers, instead declaring the Necessary and Proper clause allows Congress to
“employ those [means] 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.”22
In that light, therefore, the Court decided the Necessary and Proper clause “cannot be construed
to restrain, the powers of Congress, or to impair the right of the legislature to exercise its best
judgment in the selection of measures to carry into execution the Constitutional powers of the
Government.”23 So too it decided to effectively make the Tenth Amendment moot, allowing
Congress to assume any incidental powers it so thinks useful and convenient because the Court
found when Congress wants to exercise “the particular power which may become the subject of
contest a [which] has been delegated to the one Government, or prohibited to the other, to
depend on a fair construction of the whole instrument” in the pursuit of which the powers would
be exercised, and because of that, the Tenth Amendment “does not profess to enumerate the
means by which the powers it confers may be executed.”24
Modern Interpretation of the Necessary and Proper Clause – The Patient Protection and
Affordable Care Act and the Individual Mandate
22 McCulloch v. Maryland, 17 U.S. 4 Wheat. 316 316 (1819): 419.
https://supreme.justia.com/cases/federal/us/17/316/.
23 Ibid., 420.
24 Ibid., 408.
9
Now empowered with the Marshall Court’s stripping away the prior limitations of
delegated and enumerated powers, the federal government proceeded over the next two centuries
to grow its powers to the vast administrative state it is today. And the greatest exercise of those
economic powers to date was to nationalize (almost all) the U.S. health care through the Patient
Protection and Affordable Care Act of 2012 (“ObamaCare”). In that Act, it was the individual
mandate” for every American to buy health insurance that most directly challenged even the
modern capacious interpretation of the Necessary and Proper clause. Many of the States (as well
as many individual employers, such as Liberty University), exercised their sovereign authority to
challenge what they believed to be an unconstitutional exercise of powers by the federal
government and sued in federal court, eventually appearing before the Supreme Court in the
National Federation of Independent Business v. Sebelius case.25.
Surprisingly, and in what some political pundits characterized as Chief Justice Roberts’
attempt to keep the court as non-partisan and relevant to modern society as possible,26 the Chief
Justice cast the deciding swing vote with the liberal Justices to declare the individual health
insurance mandate constitutional. In that Court decision which Chief Justice Roberts penned,
and which unusually had concurring opinions from the liberal Justices that read more like
dissenting opinions, he simultaneously rejected the Government’s argument the insurance
mandate was authorized under Congress’ reasonable exercise of the Commerce and Necessary
and Proper clauses, but allowed for the mandate, taking what he would have viewed as an
unconstitutional health insurance mandate penalty into a constitutionally authorized tax.27 In a
little discussed part of the opinion, in what may well impact judicial interpretation of the
25 National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), hereinafter NFIB v.
Sebelius.
26 Joseph P Williams, “In Saving Obamacare, John Roberts Has Reframed His Legacy,” US News & World
Report, June 25, 2015. https://www.usnews.com/news/articles/2015/06/25/john-roberts-saves-obamacare-reframes-
his-supreme-court-legacy.
27 NFIB v. Sebelius.
10
Necessary and Proper clause by bringing focus to the oft forgotten “proper” part of that clause,
the Court did opine that “Even if the individual mandate is “necessary” to the Act’s insurance
reforms, such an expansion of federal power is not a “proper” means for making those reforms
effective.”28
But in the second Roberts opinion (as the concurring Justices joined some of his opinion,
but not others) takes the reader through the tortured semantic track of taking what Congress
specifically said was a “penalty with respect to such failures” to maintain minimum essential
health insurance coverage, and instead considering it a tax payment which would fall under
Congress’ enumerated taxation powers.29 And the rationale for such an allowance is equally
tortured, because as for this method of Constitutional interpretation, “The question is not whether
that is the most natural interpretation of the mandate, but only whether it is a “fairly possible”
one” and from there continuing the constructionist gymnastics to declare “every reasonable
construction must be resorted to, in order to save a statute from unconstitutionality.”30 For Chief
Justice Roberts, it is now the responsibility of the Court to find a way to make otherwise
unconstitutional actions by Congress somehow Constitutional, even if readers of such opinions
will shake their heads in disbelief. And with that, the damage is done to the idea of Original
Intent, Original Understanding, Textualism, or even Constructionism as proper methods of
Constitutional interpretation, for Justice Ginsburg, writing her own Concurrence, brings back up
McCulloch v. Maryland, opining the Framers “recognized that the Constitution was of necessity
a “great outlin[e],” not a detailed blueprint.”31
Impact
28 Ibid., 2nd Roberts Opinion, sec. II.A.2.
29 Ibid., sec. III.B.
30 Ibid.
31 Ibid., 1st Ginsburg Concurrence, sec. II.A.
11
What is the result of the McCulloch decision and the administrative State it unleashed?
As Lash points out, because Chief Justice Marshall rejected the very idea of strict
constructionism instead pushing a belief in federal power “expansive enough to be become the
foundational theory of the modern administrative state…transplanting the locus of delegated
sovereignty from…[the] “people of the several states” to the undifferentiated people of the
nation as a whole.”32 Chief Justice Marshall even dismisses any role the States played in the
ratification, claiming the Constitution was “submitted to the people”, not the States. The fact the
various Peoples met in State-organized conventions was, to Marshall, simply a matter of
collective safety, but that doesn’t mean “the measures they adopt do not…cease to be the
measures of the people themselves…”33 Further, as Lash details, Chief Justice Marshall
mischaracterizes Maryland’s arguments as defending the sovereignty of the States against the
sovereignty of the People, instead of defending the sovereignty of the States against the
sovereignty of the federal government, which was specifically proscribed in its powers by that
Constitution. Instead, Marshall sets up the federal government as “a government of the people…
Its powers are granted by them, and are to be exercised directly on them, and for their
benefits.”34
And this is where the concept of Original Intent dies for now, replaced on the Supreme
Court with as expansive a view of federal government powers as Congress can reasonably
imagine. While the Roberts’ Court opinions on the Commerce and Necessary and Proper Clause
may give some Originalists hope for reinstating some restrictions on federal powers, the Court’s
allowance to call any financial transaction with the government a tax gives Congress the power
32 Kurt T. Lash. “The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and
‘Expressly’ Delegated Power.” Notre Dame Law Review 83, no. 5 (2008): 1942. https://heinonline.org/HOL/P?
h=hein.journals/tndl83&i=1899.
33 McCulloch v. Maryland, 402-03.
34 Ibid., 404-05.
12
to do so, and still pass Constitutional muster. Regardless, it still applies that the only way to
determine the intent of any government adjudication or deliberation is to read the text of the
legislation or resolutions themselves, use the words in those documents in the most widely
accepted definition of those words at that time, and when even that process fails, to then interpret
that legislation as restrictedly as possible to minimize its effect. For where confusion reigns, it is
better to minimize the impact of something that is not readily understood than to try to construct
the meaning outside the legislative process so as to protect Congressional intent, even where the
process is unconstitutional.
13
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