Saturday, August 13, 2011

The Necessary and Proper Clauses

John Mikhail

I’m grateful to Jack for inviting me to contribute to Balkinization. My first objective will be to publish a series of posts on the origin and meaning of the Necessary and Proper clauses. I refer to the N&P “clauses” (plural) rather than the N&P “clause” (singular) to emphasize that the relevant text is comprised of three distinct provisions, only the first of which refers to the enumerated powers in Article I, Section 8:

(1) “Congress shall have the Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

(2) “Congress shall have the Power … To make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States”

(3) “Congress shall have the Power … To make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in . . . any Department or Officer [of the United States]”

James Wilson was probably the most skilled and accomplished lawyer at the federal convention, and he devoted great care to drafting these clauses as a member of the Committee of Detail. Just why he constructed the N&P clauses in this manner and how they influenced the ratification and early interpretations of the Constitution will be the subject of my first series of posts.

To anticipate the main results of this discussion, over the next several weeks I will argue:

[1] that the second N&P clause is particularly important for understanding the basic structural design of the Constitution;

[2] that this provision was meant to declare and incorporate directly into the Constitution the doctrine of implied powers that Wilson had defended in his 1785 essay on the Bank of North America;

[3] that Wilson’s bank essay was also the likely source of the critical language of Resolution VI of the Virginia Plan giving Congress the power “to legislate in all cases to which the States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation” (a point many historians fail to grasp and Kurt Lash overlooks in his interesting and provocative new article on the topic);

[4] that Wilson’s doctrine of implied powers, unlike the relatively insignificant doctrine of incidental powers reflected in the first N&P clause, was highly controversial at the time, but fully supported by George Washington, Robert Morris, and many other of the most powerful men at the federal convention;

[5] that the last two N&P clauses, not the first Foregoing Powers provision, were among the major reasons why three delegates at the convention (Edmund Randolph, George Mason, and Elbridge Gerry) refused to sign the Constitution;

[6] that Brutus, An Old Whig, and other anti-Federalist writers immediately drew attention to what they correctly perceived to be the sweeping implications of the All Other Powers provision;

[7] that these anti-Federalist authors often misquoted or mischaracterized all three N&P clauses to suggest that they gave Congress unreviewable discretion to decide which laws were necessary and proper;

[8] that during ratification, Wilson, Hamilton, and Madison responded to these inaccurate criticisms with apparently deliberate misquotations and obfuscations of their own, cleverly exploiting the complexity and ambiguity of the N&P clauses to suppress their actual significance and to imply that they merely embodied the unavoidable and harmless doctrine of incidental powers;

[9] that once the Constitution had been securely ratified and put into operation, Madison clearly and unequivocally reasserted the original meaning of the second N&P clause to justify the need for a Bill of Rights, explaining that "because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof," the general government possessed "certain discretionary powers" that "enables them to fulfill every purpose for which the government was established" (Speech to the House of Representatives, June 8, 1789);

[10] that in the subsequent debate over the power to incorporate a national bank during the first Washington administration, Madison reverted to the narrow construction of the N&P clauses he had proffered during ratification, thereby denying the existence of those same implied powers;

[11] that in this bank debate Jefferson and Randolph likewise sought to argue that the only powers given by the N&P clauses were subordinate and incidental to the enumerated powers; and

[12] that Hamilton, after consulting and sharing the first draft of his bank opinion with Wilson, effectively dismantled the three Virginians’ feeble attempt to treat the second N&P clause as mere surplusage, thereby reaffirming the existence of implied powers that Wilson, Hamilton, Gouverneur Morris and other leading nationalists at the convention, including Madison, understood all along to be vested in the new government by the Constitution.

In addition to these propositions, I will argue that all or at least much of this history was well understood by the Founders, including John Marshall, who, in the face of Republican hostility to implied powers in the aftermath of the Alien and Sedition Acts, deliberately but cautiously reaffirmed the significance of the All Other Powers provision, first in United States v. Fisher (1805), then in McCulloch v. Maryland (1819), and then finally in Osborn v. Bank of the United States (1824), where Marshall for the first time made clear that his entire opinion in McCulloch was “founded on, and sustained by, the idea that the bank is an instrument which is ‘necessary and proper for carrying into effect the powers vested in the government of the United States’” (9 Wheat. at 860). A large volume of academic and judicial commentary is therefore mistaken to assume that Marshall’s opinion in McCulloch rests at bottom on the first N&P clause.

Finally, I will argue that much of the foregoing account has been neglected or misunderstood by historians and legal scholars because of their systematic failure to distinguish all three Necessary and Proper clauses, because of their undue emphasis on the Foregoing Powers provision, and above all because of their fixation with Madison in his perceived role as the “Father of the Constitution.”

Madison's influence was profound and needs no elaboration, but the documentary record suggests that the true genius and principal architect of the Constitution was James Wilson. The N&P clauses, which reflected Wilson’s background as perhaps the most sophisticated corporate and constitutional lawyer of his generation, are largely a distillation of the Sweeping Clause contained in the corporate charter of the Bank of North America and of the key legal arguments on behalf of the bank that appear in Wilson’s 1785 essay. Together with the Preamble, Vesting Clauses, Supremacy Clause, and popular ratification procedure, Wilson’s N&P clauses are one key pillar of the structure of corporate governance he and other framers designed for the nation, and a useful point of entry into a new and better understanding of the broad powers of the national government under the Constitution.

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