This weekend the Center for the Study of Constitutional Originalism will be holding its Ninth Annual Originalism Works-in-Progress Conference.
We are now in the midst of a new period of learning about the Necessary and Proper Clause. The leading work on the subject is this book, but there are other articles as well.
Since the New Deal, progressive constitutional lawyers have argued that the Clause provides an additional step, or two, or three, beyond the enumerated powers of Congress. Moreover, they have also argued that Congress’s judgments about these matters are entitled to great deference. Both of these arguments have won favor in the Supreme Court.
But now originalist work is being done that challenges this model. Perhaps the principal argument is that not every power can be an incidental power covered by the Necessary and Proper Clause. The “great and substantive powers,” as Madison put it, could not be incidental powers. This places a significant limitation on the Necessary and Proper Clause, depending on what is a great and substantive power. In McCulloch, Chief Justice Marshall did not deny this great and substantive power doctrine. Instead, he concluded that the power to establish a corporation was not a great and substantive power.
One of the scholars who has been at the forefront of this work is Rob Natelson. He has an interesting post about a 1772-1773 pamphlet by Josiah Quincy that discussed the term necessary. Natelson writes:
Perhaps the most interesting part of the pamphlet illustrates why, as has been documented extensively, the Founders understood the Necessary and Proper Clause (Article I, Section 8, Clause 18) to be a mere recital, and not an affirmative grant of power to Congress. At that point, Quincy was discussing the Boston Port Bill’s requirement that the Town of Boston reimburse the East Indian Company for the tea tossed into the harbor. Quincy pointed out (page 18-19) that it would be illegal for Boston to pay the Company, because another Parliamentary statute limited Town expenses to “maintenance and support of the ministry, schools, the poor, and defraying other necessary Town Charges.”
“Will any now say,” Quincy wrote, “that the monies appointed to be paid to the East-India [Company], come within the words of ‘necessary town charges?’ When did the town contract the debt, or how are they subject to it?”
Today we might read “necessary town charges” as including such a payment, but that was not what it meant at the time. When a phrase like “and other necessary charges” appeared in a legal document at the end of in a list of enumerated powers, it served only to clarify that power-wielder had authority incidental to the powers already listed—but not separate and additional authority. Under this statute, in other words, the town of Boston could not make payments unrelated to the listed purposes.
This is precisely the role the Necessary and Proper Clause plays in Article I, Section 8.