Here are pulled together some facts and thoughts on 10 clauses in the U.S. constitution that have been ignored, misunderstood or misapplied. Some people merely want the correct meaning to be restored by educating the judiciary, others wish to amend the constitution so as to correct the way the constitution is applied
(to repeal or correct the problem clauses), and yet others would like an entirely new constitution. The focus here will be on one of the 10 troubling constitutional clauses:
- The commerce clause
- The contracts clause
- The due process clause (amend 5 and 14)
- The privileges or immunities clause
- The equal protection of the laws clause
- The general welfare clause
- The necessary and proper clause
- The supremacy clause
- The takings and tax clauses
- The enumeration of rights clause (amend 9)
We have now come to the seventh of these clauses, The Necessary and Proper Clause.
The Necessary and Proper Clause.
The phrase "necessary and proper " appears once in the Constitution, in Article 1, Section 8, at the conclusion of the 16 enumerated powers..
Article 1, Section 8 states:
"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."
The "necessary and proper" clause requires a right fit between means and ends. Besides being a proper end, the end must also be necessary (in the plainest sense of the word), in terms of the stated purpose of government ("to secure theBlessings of Liberty"). The ends must be necessary, and if they are, the means may be proper or improper. The means may violate the principles of federalism and the separation of powers, the enumerated powers or may violate natural rights. All laws enacted by congress must be necessary to secure liberty, aimed at goals consistent with the enumerated powers, preserving federalism and the separation of powers and protect natural rights.
A large part of this interpretation relies on Randy Barnett's Restoring the Lost Constitution: The Presumption of Liberty, pages 153-190.
The legislative and executive branches of the federal government need to be held to the limited enumerated powers in the constitution and not to reduce the numerated and unenumerated rights of the people. The judiciary review is the main guardian against too strong a government and the loss of individual rights.
Also known as the "elastic clause" because it stretches the power of Congress, this clause is one of the most powerful in the Constitution. When it is wrongly interpreted or applied it can enable enormous growth of government power. The "necessary and proper clause" has been the main tool used by the executive and legislative branches to increase their power, resulting in the restriction of rights.
The supreme court has exercised too much restraint. It has permitted laws and decisions by the other branches to stand, out of respect for their purposes.
Government actions that were convenient to achieving goals deemed desireable by some were thought to be necessary, but were not. Likewise, goals that needed in an objective sense to be achieved were promoted by government actions which were thought to be proper, but were not.
Too often the goals had nothing to do with the main purpose of government, to secure liberty. Too often they improperly strayed from the enumerated powers and infringed on our natural rights.
Randy Barnett, in Restoring the Lost Constitution: The Presumption of Liberty, p. 181, wrote:
"Suppose Congress had expressly been given the power to pass "all laws that it shall think necessary and proper."
This was part of a chapter that tackles the issue of whether some interpretations of the Clause would put legislative acts beyond the purview of the courts. There would hardly be any way for a court to challenge a bill with an interpretation that amounts to that of Barnett's supposition. A court could not determine that congress did not think it necessary and proper to pass a law, when they have passed it. Congress would first have to say they did not think it necessary and proper, then vote to pass it. Then a court could get a handle on it. The same applies to an understanding of "necessary" as "useful" or "convenient."
A key issue in the application of this clause was whether the federal government could create a bank. On February 25, 1791, the United States granted a charter for 20 years to a bank created to handle the financial needs and requirements of the central government. It was to hold funds collected from taxation and to be paid out. "The First Bank of the United States", was proposed by the first Secretary of the Treasury Alexander Hamilton.
Along with establishing a mint and an excise tax, the purpose of Hamilton's proposed bank was to:
- Establish financial order andclarity in and of the newly formed United States.
- Establish credit — both in country and overseas — for the new nation.
- To resolve the issue of the fiat currency, issued by the Continental Congress — the "Continental".
This did not come about without some disagreement. Thomas Jefferson, Edmund Randolph and James Madison opposed the creation of a national bank both because they did not believe it would be beneficial and because it was not "necessary and proper." Alexander Hamilton, by contrast, contended that the clause empowered Congress to adopt any measure having a natural relationship to the subjects specifically mentioned.
McCulloch v. Maryland (1819), was a landmark decision by the Supreme Court of the United States. Chief Justice John Marshall was not able to cite any numerated power in the constitution that allowed the United States government to create a United States bank, but allowed the need to handle funds from taxes collected and to pay debts and other obligations as valid reasons for creating such a bank. It was "necessary" in the sense of "convenient." Justice Marshall wrote, "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional." With that the doctrine of implied powers became firmly established as a significant source of federal authority.
From the constitutional annotations at Concord Law School:
Moreover, the provision gives Congress a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution all powers vested in the National Government. Conversely, where necessary for the efficient execution of its own powers, Congress may delegate some measure of legislative power to other departments.
If Marshall and the McCulloch decision left doubt about Hamilton winning this one, Lincoln and twentieth century presidents (and courts) finished it. By applying unchecked power to an expansion of the enumerated powers and by reading into the "necessary and proper" clause yet more power, a veritable Leviathan had been grown. The Progressives and later Franklin Delano Roosevelt expanded Lincoln's legacy with the New Deal. Later, Lyndon Johnson escalated the use of federal power with war and welfare.
In the final analysis, the "necessary and proper" clause is well established as an independent power and makes the list of enumerated powers meaningless or unnecessary.
Barnett (p 189f) wraps up his chapter on this topic, taking his unique originalist position:
Assuming judges have the power to nullify unconstitutional statutes, as most would concede, how much deference do they owe legislatures that enacted them? At the federal level, the answer turns in part on the meaning of the clause that is most often used to justify the constitutionality of congressional powers: the Necessary and Proper Clause. If you take attributed to Marshall that "necessary" means merely convenient or useful, then courts are generally unqualified to second-guess a congressional determination of expediency. On the other hand, if the clause requires (a) a showing of means-ends fit -- as per Madison, Jeffrerson, and even Hamilton -- together with a showing that (b) the means chosen do not prohibit the the rightful exercise of freedom (or violate principles of federalism or seperation of powers) and (c) the claim by Congress to be pursuing an enumerated end is not a pretext for pursuing other ends not delegated to it Marshall in McCulloch), then an inquiry into each of these issues is within the competence of courts.
But Barnett (p. 44) also has his own view of necesary and proper laws, besides that "originalist" interpretation of the constitution. This is that "for a law to be just, and therefore binding in conscience, if its restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed."
Elsewhere he explains that a legislative bill can have (independently) legitimacy and/or validity (p. 47ff.). For the legislators to expect the people to feel the compunction to obey it as law, it has to first have a certain quality put into it. A bill passed by the legislative body can be passed by the accepted legislative procedures and thus qualify as being legal. It can be legitimate by following this procedure. It can be illegitimate by being declared by the executive branch or being passed somehow by a minority. It can also be legitimate but unjust because it does not protect rights of others or violates the rights of the people it is supposed to protect. (Barnett argues also that the legitimacy of a government does not require the consent of the people if the laws pass this test).
How can we reform this government to give us justice with laws that are both legitimate and valid?
Alexander Hamilton would rest well in his grave and would have been proud of what the statists (so-called liberals) John Marshall, FDR and LBJ accomplished. What he advocated, advocating "necessary and proper" in the loose sense or "convenient," has turned a beautiful limited republic into a powerful, unlimited State.
From a Libertarian viewpoint, "necessary" should be interpreted as necessary, not convenient, conducive or expedient. It should be connected directly to the enumerated powers of article I, section 8, and not to any implied powers. And "proper" should be interpreted as both limited to the enumerated powers and also not diminishing any individual rights, enumerated or not.
If the "necessary and proper" clause was truly laid down by the Founders as an independent power as broad as the Hamiltonians saw it, the rest of the details of the constitution were not necessary. But the presence of many power-limiting features in the constitution tell us loudly that a narrow take on "necessary and proper" is what we need to return to.
How do we amend our constitution to obtain laws that truly are necessary and proper?
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