Other than the “general welfare clause” there is no phrase in the Constitution more perverted, used and abused than the “necessary and proper clause”.
In this blog post, I’m going to arm you with the truth of the “necessary and proper” clause, so that, if you hear your legislators use and abuse it, you can bring clarity and truth and hold them accountable.
Where It Falls in the Constitution
The “necessary and proper” clause is the ending clause in Article 1, Section 8 of the Constitution. This is perhaps the most important section of the entire Constitution as it is where the enumerated powers for Congress are laid out.
Why are these enumerated powers so critical?
Put simply, almost the entire power of the federal government can be paired down to this single section of the Constitution. The powers listed are the powers that Congress has control over.
In other words, Congress is permitted, nay, endowed, by the Constitution to make laws about the specific topics listed in this list of enumerated powers. Beyond that list, Congress has no legal jurisdiction. Since the legislative branch is the linchpin branch in government , the other two branches exist because of the legislative branch. Imagine what an executive branch would do if there were no laws to execute? Or what would a judicial branch would do if there were no laws to interpret/judge?
So, where the legislature goes, there goes the government.
This list of enumerated powers encompasses the power of the federal government. Thus, the concluding paragraph of this list is pivotal. Re-interpret, re-write or re-apply this concluding paragraph and you re-write the power of the entire federal government.
The Whole Clause
Here’s the whole clause:
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.
This list of enumerated powers precedes the “necessary and proper” clause. The enumerated powers are not a list of laws but a list of powers about which laws can and must be made.
So, let’s read this clause in context then: “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…”
Let’s stop there a minute. When read in context this “necessary and proper” clause is nothing significant. It is merely stating this:
“Hey Congress, you see all these powers just listed above, it’s your job to make the laws necessary and proper to fulfill those those foregoing powers”.
It’s not a “do whatever you want” card. It’s not a license to make any law about anything under the sun that Congress deems “necessary and proper”. It’s a dictate to make laws deemed necessary and proper to carry out the given job–within the given job description.
The rest of the clause simply reiterates the same, that Congress can and must make laws “necessary and proper” to the carrying out of the powers the Constitution gives them.
What the Founders Had to Say
Below is an excerpt from a Georgetown University Law Center article explaining the historical context of the “necessary and proper” clause. The founders in the Constitutional Convention debated little about this clause because the meaning was a given. Read the following for a clear understanding:
They insisted that the Necessary and Proper Clause was not an additional freestanding grant of power, but merely made explicit what was already implicit in the grant of each enumerated power. As explained by George Nicholas to the Virginia Convention, “the Constitution had enumerated all the powers which the general government should have, but did not say how they were to be exercised. It therefore, in this clause, tells how they shall be exercised.” Like other Federalists, Nicholas denied that this Clause gave “any new power” to Congress. “Suppose,” he reasoned: it had been inserted, at the end of every power, that they should have power to make laws to carry that power into execution; would this have increased their powers? If, therefore, it could not have increased their powers, if placed at the end of each power, it cannot increase them at the end of all.
In short, “[t]his clause only enables them to carry into execution the powers given to them, but gives them no additional power.” Madison added his voice to the chorus: “the sweeping clause.., only extended to the enumerated powers. Should Congress attempt to ex- tend it to any power not enumerated, it would not be warranted by the clause.”
Also in Virginia, Edmund Pendleton, president of the Convention, insisted that this Clause did not go, “a single step beyond the delegated powers., If [Congress were] about to pass a law in consequence of this clause, they must pursue some of the delegated powers, but can by no means depart from them, or arrogate any new powers; for the plain language of the clause is, to give them power to pass laws in order to give effect to the delegated powers”.
The same point was made in the North Carolina Convention: “This clause specifies that they shall make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws.”
In Pennsylvania, James Wilson explained that this Clause “is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” And Thomas M’Kean insisted that “it gives to Congress no further powers than those already enumerated.
Further, Madison said the following to alleviate any concerns the opposition might have about the clause.
What is to be the consequence, in case the Congress shall misconstrue this part [the necessary and proper clause] of the Constitution and exercise powers not warranted by its true meaning, I answer the same as if they should misconstrue or enlarge any other power vested in them…the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in a last resort a remedy must be obtained from the people, who can by the elections of more faithful representatives, annul the acts of the usurpers.
There’s not much more to say. The “necessary and proper” clause is not a “do whatever you want” card, no matter how badly government wants it to be that. It’s fascinating to see how quickly power does corrupt, and corrupt absolutely.
That’s why the citizenry must always be on guard, always aware that government is trying to do whatever it can to get more power.
It’s necessary and proper for the citizenry to know the Constitution and keep government accountable to it.
The Liberty Belle