Alright friends, Part Two of Article 1 Section 8 is here, so please SHARE!
Have you ever heard someone say, “Congress had to pass ‘x’ law because it was necessary and proper to do their job.” or “It’s necessary and proper that Congress try to regulate the economy/regulate healthcare/enforce climate change measures etc”? I’m sure your answer to this question is yes. Political pundits throw this “necessary and proper” phrase around like its confetti at a party—-and as if they know what they are talking about. I can tell you this— they do NOT.
So, what is this “necessary and proper” clause? Where does it come from and what does it mean? Before I explain, you need to understand a few more basics about Article I of the Constitution in order to understand the context of the phrase.
As I discussed in Part One of this series on the Constitution, the Constitution applies only to the federal government, not the states. This was the original intent of the founders when writing the Constitution. They were not as concerned about state government power as they were federal government power. They’d experienced the abuse that can happen when power is highly consolidated, so they created a document that confined and defined government power. In other words, they gave government a job description.
Madison says in Federalist No. 45 “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” In other words, anything NOT mentioned explicitly in the Constitution as a federal power—-is not a federal power. It is a state power.
I listed eight specific powers in Part One. Don’t forget these as you read the rest of this post. The powers I listed in Part One, along with the ones I list below, are the only powers specifically designated to Congress. Any powers not mentioned here are powers that are left to the states. The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states respectively” — but we don’t even need the 10th Amendment for this to already by true.
Picking up from where I left off in Part One, Article I Section 8 of the Constitution says that Congress has the power to make laws that allow them to:
To constitute tribunals inferior to the Supreme Court;
In other words, Congress creates all inferior courts. The Constitution only created one Court. (If you want to learn more about this, check out this post). This power should seem rather obvious, again, since it would make sense that the federal government should be equipped to create federal courts. So, all federal courts that exist, exist only because Congress, by law, created them.
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
This is intuitive federal power. Since all crime was left to the power of the states, the founders wanted to make sure that one area of crime would be explicitly left to the federal government: crimes on the high seas. It makes sense that the founders wanted to leave this to the federal government since distinguishing in which state’s water a crime happened would be difficult if not impossible. So, the founders made it a federal power to write law and punish crimes on the ocean.
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
This is essential and something I’ll touch on more specifically in another blog post. Congress and only Congress can declare war. This power was given explicitly to the federal government since the founders didn’t want individual states declaring war on other countries. That wouldn’t turn out so well and would only cause chaos and confusion.
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
So, I left these to be clumped together. Congress handles the raising, arming, and handling of any internal or external threats through the use of armed forces. There was some debate, at the founding, about a standing army, but ultimately the founders knew that the country as a union needed some semblance of a standing military to repel external invasions. They couldn’t rely exclusively on the state militias to defend the country as a whole (which is what they had under the Articles of Confederation and during the Revolutionary War). Congress has the power to write law that does, in turn, establish a military, fund a military and provide rules for that military. Congress also has the power to call into action state militias and/or an armed citizenry.
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And
Basically, this clause allows Congress (not any state) to have exclusive control over the District of Columbia, where the capital is found.
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.
Ok, so here’s where the rubber meets the road. This “necessary and proper” clause has been taken, misused and abused more times than I can count. Pay attention to the wording here in the Constitution. Congress (only Congress) is allowed to make all laws which are necessary and proper for carrying into execution the… what? Anything they deem necessary? Anything the people demand (e.g. healthcare)?
No. Congress is supposed to make laws that are necessary and proper to carry into execution the foregoing powers. “Foregoing” means “preceding; going before”. In other words, Congress is tasked with making laws that are necessary and proper for carrying out the duties listed above this clause in the Constitution, the powers I just listed in Part One and Two of the Constitution for Dummies.
That’s it.
There is nothing more behind that phrase. This list of powers is a list of potential law, those powers are not law. It is then the job of Congress to deem what laws are necessary and proper (for them to write) to carry out the powers the Constitution gave them to carry out.
THIS IS THEIR JOB DESCRIPTION.
If you notice, the “necessary and proper” clause continues and says, “and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Essentially, this means that Congress can make laws that are necessary and proper for carrying into execution any other powers that the Constitution gives to the government——which, if you’ve read the Constitution, are not very many.
The courts, political talking heads, and politicians assume that Americans are uneducated about the true meaning behind this phrase and therefore manipulate us by using it to justify overreach and abuse of power. “Oh well, it was necessary and proper to do so.”
Really?
Did the law fall within the boundaries of the Congressional powers explicitly listed in the Constitution? If not, then Congress has violated the Constitution. Don’t be fooled the next time you hear this phrase. If it’s a friend or acquaintance who uses it, please educate them on what you’ve learned. Otherwise, our representatives will keep manipulating us and have no reason to change.
It’s time we stop being pawns in government’s game and actually act like the employer that we actually are.
The Liberty Belle
The part of your article concerning Congress and courts interested me due to a correspondence I had years ago. In July 2014 I wrote an “E” mail to the author of a popular new book which came out entitled “Is Administrative Law Unlawful”. The authors name is Phillip Hamburger and he is a professor of Law at Columbia Law school.
My question to him was :
“My question to you is concerning the separation of powers as written in the Constitution. Does Congress have the power to issue a subpoena to an individual and hold hearings besides the powers vested to them during an impeachment hearings? Wouldn’t this be solely delegated to the judicial branch alone.”
Professor Hamburger replied:
“You raise an interesting question. There is a long history of committee powers to question individuals and this therefore cannot be considered confined to impeachments. This is therefore a sort of exception to the general proposition that the power to order individuals lies in the courts. But it is not entirely at odds with that general proposition, as the legislative power to question arose from assumptions that Parliament was a type of court etc. I hope this is helpful”
Thought you might find some thinking out of the box interesting !.
Much of the frustration my remarks reflect revolve around the comparison between todays social justice issues and what is included in the Constitution. Attempts to put the current context of issues in the same status as the American founding has the effect of diminishing the sheer novelty and iconoclasm of the founding moment. Our Constitution is “intended to endure for ages to come” which can be gleaned, in part, from the broadness of its brushstrokes. Were the Framers to enumerate every legitimate power that the government possesses, as well as the proper means for its execution, not only would the document “partake of the prolixity of a legal code that could scarcely be embraced by the human mind,” but it also would be rendered obsolete from one age to the next. In todays society however the Constitution is increasingly viewed from a teleocratic perspective as an instrument designed to fulfill the exigencies and current desires of the people. A common good Constitutionalism where the government can exercise powers it does not constitutionally have and enshrine rights the people do not constitutionally possess. Woodrow Wilson’s gripe with the Framer’s Constitution is that it was well-conceived given the century that they inhabited, but the wisdom of their day was superseded by the wisdom of a later one. In reality Wilson had it wrong, the choice is no more between being governed by a living constitution or a moribund one than it is between governing a population of 4 million vs 330 million. The aim of the Constitution was not to eliminate classes and redistribute wealth but to represent them. Once it becomes permissible to update the Constitution, not only by amending it, but by simply reinterpreting it whether in the courts of law or that of public opinion, the foundational law loses its force and meaning. In the absence of such restraints, governments will further and further extend their reach for that is what governments—or rather, the persons who comprise them do. The alternative, then, to Wilson’s living constitution is an enduring one. That is what the Founding Fathers bequeathed to their posterity—a Constitution designed not to evolve, but to endure.
I would like to edit one of the sentences in my above post.
It has to do with the sentence: The aim of the Constitution was not to eliminate classes and redistribute wealth but to represent them.
Please change it to read : The aim of the Constitution was not to eliminate classes and redistribute wealth but to protect the citizenry from abusive and overstepping government.
The change would then corroborate the remainder of the post.
Abusive and overstepping ! government ! A sure statement of truth of today’s government . Do you mind if I ask what state your in Bob? I am in northern rurak Michigan and the very abusive overstepping of a rogue faction of a consolidated so called republicans ?
Hi- Bob. Have not seen you posting lately , hope all is well ! I was wondering how we can communicate beer between the two us to support Chris’s efforts ? And get hear excellent blogs out . Thanks , RON
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I personally like “” fair and just “” rather then “” nessesary ” nessesary seems to be a word easily manipulated and therefore abusive to get what the establishment wants ,POWER !