an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Origins of "Necessary and Proper" (Part II: Common Usage during the Founding Era)
Historians and other scholars often assume that the phrase “necessary and proper” was novel or constructed out of thin air at the constitutional convention. As my last post indicated and this post will seek to demonstrate, this assumption seems clearly erroneous. A different assumption, which also appears to be misleading in many respects, is that “necessary and proper” was a term of art in 1787, which only a trained lawyer or someone with specialized knowledge would be able to use or interpret correctly. Both of these familiar narratives appear to lend at least indirect support to the Supreme Court’s recent Necessary and Proper Clause jurisprudence, insofar as they imply that the original meaning of “necessary and proper” was either highly opaque or highly technical. On either alternative, the natural tendency is for ordinary language “drawn from the common affairs of the world” (John Marshall) to become unduly refined and artificial.
Because I was skeptical of the received wisdom on this issue, I decided to examine every occurrence of “necessary and proper” and three closely related phrases—“proper and necessary,” “necessary or proper”, and “proper or necessary” (henceforth “the target phrases”)—which I could locate in various archives, published records, and electronic databases.These resources included the James Wilson Papers; the Robert Morris Papers; the records of the Ohio, Indiana, Illinois-Wabash, and other early American land companies; the Journals of the Continental Congress; the Letters of Members of the Continental Congress; the Avalon Project at Yale Law School; and the Founders Online project of the National Archives, a new searchable database of the collected papers of six prominent founders (George Washington, John Adams, Thomas Jefferson, James Madison, Benjamin Franklin, and Alexander Hamilton).
What emerged from this investigation was a powerful confirmation of the fact that both of these influential accounts of the origins of the Constitution's “necessary and proper” language appear to be fundamentally misguided.On the basis of this initial study, in fact, at least three countervailing lessons can be drawn with reasonable confidence.
First, all of the leading framers, not just Wilson, the principal author of the Necessary and Proper Clause, were almost certainly acquainted with multiple uses of “necessary and proper” and the other target phrases prior to the Philadelphia convention.Second, far from being technical or inscrutable, the Constitution’s “necessary and proper” language was perfectly ordinary, familiar, and comprehensible to most educated speakers of English at the time.“Necessary and proper” does not seem to have been primarily a lawyer’s clause or a legal term of art, in other words, but rather a common feature of ordinary English, which virtually every founder (including the delegates to the state ratifying conventions, for example) had probably used or encountered at many points prior to 1787-1788.Third, the sheer number and variety of occasions in which the target phrases were used appears to cast doubt on any attempt to identify a single or distinctive source or ideological origin—such corporate law, agency law, administrative law, or federalism—of the phrase “necessary and proper” in the Constitution.
In what follows, I'll present some of the key findings of this research.Along the way, I’ll provide links to some of this new evidence in order to illustrate the remarkable power of electronic databases to inform, and perhaps in some cases to transform, our understanding of legal history and constitutional originalism.
The Founders Online.The Founders Online project alone yielded approximately 252 distinct occurrences of the four target phrases in the correspondence and papers of the six most prominent founders: Washington, Adams, Jefferson, Madison, Franklin, and Hamilton.Although most of these entries occur after 1787, dozens of them appear in letters or other documents that were written before the Philadelphia convention.Specifically, I discovered 28 preconvention uses of the phrases “necessary and proper” (or “necessary & proper”) in these sources.In addition, there were approximately 43 distinct occurrences of “proper and necessary” (or “proper & necessary”), nine occurrences of “proper or necessary,” and eight occurrences of “necessary or proper” in the papers of these six founders during the same time frame.
George Washington.George Washington was exceedingly fond of the phrase “necessary and proper,” and he often used it and the other target phrases in his correspondence, both before and after the convention. The online database of the Washington Papers includes 21 occurrences of the phrases “necessary and proper” (or “necessary & proper”) during the preconvention period alone.In addition, this collection includes fifteen occurrences of “proper and necessary” (or “proper & necessary”), two occurrences of “proper or necessary,” and two of “necessary or proper” during the same period.
At least two occasions on which Washington used the phrase “necessary and proper” in his correspondence seem particularly noteworthy in light of the controversies that later emerged in connection with the first and second Bank of the United States.In a March 18, 1784, letter to Edmund Randolph, who was serving as his personal attorney at the time, Washington instructed Randolph to “be so good as to do what shall appear necessary & proper in my behalf.”In an April 5, 1789 letter to John Marshall, who succeeded Randolph as Washington’s attorney, Washington referred to taking “the necessary and proper steps to recover” a debt he was owed.
Robert Morris.Like his friend George Washington, Robert Morris was also extremely fond of the phrase “necessary and proper” and the other target phrases and often used them in his papers and correspondence.The Robert Morris Papers, which are limited to the years 1781–1784, include at least twelve occurrences of these phrases during this period alone.This language appears both in Morris’s private diary and personal letters and in his official correspondence as Superintendent of Finance.
For example, in a June 8, 1781 letter to Benjamin Franklin, Morris wrote: “I do not wish to give you any trouble that is not proper and necessary.”In a July 20, 1781 letter to the President of Congress (Thomas McKean), Morris remarked that “it is evidently necessary and proper that judicious regulations shou’d be adopted in the distribution of Rations on this occasion.”In a private diary entry dated February 7, 1782, Morris recorded a conversation with two directors of the Bank of North America, Jonathan Nesbitt and Thomas Fitzsimmons, in which Morris informed them that “Weekly or Monthly Accounts might do very well at present but hereafter daily Accounts may be necessary and proper.”Finally, in his “Instructions to the Receivers of Continental Taxes,” written on February 12, 1782, and published soon thereafter in the Pennsylvania Packet, Morris publicly announced the first government regulations on how tax receipts should be transmitted to the Treasury of the United States, explaining that it was “proper and necessary that, in a free Country the People should be as fully informed of the Administration of their Affairs as the Nature of things will admit.”
The Continental Congress.Many uses of “necessary and proper” and the other target phrases can be found in the journals and other records of the Continental Congress. Moreover, this language often appears in committee reports or other documents with which many of the framers would have been familiar.
For example, on September 25, 1776, the Second Continental Congress established a committee responsible for supplying clothing, blankets, and other equipment to the Continental Army.The committee was assigned a set of powers, including the authority “to make regulations for the hospitals in the northern department, and to remove or suspend any person employed therein, and to employ such as they may think necessary and proper.”
On June 24, 1782, the legal representatives of Pennsylvania and Connecticut presented their credentials to Congress in connection with the Wyoming Valley litigation.James Wilson represented Pennsylvania.Connecticut appointed Eliphalet Dyer, William Samuel Johnson, and Jesse Root to serve as its advocates.The papers presented by the Connecticut agents called upon them “to do every thing necessary and proper for the vindication and defence of the claim and right of this State to the said lands in controversy.”
Finally, on September 20, 1785, Secretary of Foreign Affairs John Jay reported to Congress on establishing consuls throughout Europe.His report proposed the creation of five Consuls General to reside in Amsterdam, London, Paris, Madrid, and Lisbon, and he recommended “that each of the said Consuls General should be directed to nominate such and so many Consuls for Ports within his District, as he may from Time to Time think necessary and proper.”
State Constitutions, Laws, and Resolutions.Along similar lines, many constitutions, laws, and resolutions adopted by the states included the target phrases or comparable language.Some of these were relatively obscure, but others would surely have been familiar to most or all the framers.
The 1780 Massachusetts state constitution included a provision authorizing the legislature to enact such emergency measures “as may be necessary and proper for insuring continuity of the government of the commonwealth.”
On December 28, 1784, the Virginia Assembly passed a resolution appointing commissioners to work with agents from neighboring states in order to connect the waters of the Potomac and Ohio Rivers and “to render these Waters navigable as far as may be necessary and proper.”
Finally, on February 17, 1787, the New York Assembly adopted a resolution in favor of a federal convention to revise the Articles of Confederation, calling for “such alterations and amendments to the said Articles of Confederation, as the representatives met in such Convention, shall judge proper and necessary, to render them adequate to the preservation and support of the Union.”
Hamilton’s Bank of New York. In line with Professor Miller's corporate law thesis, it seems worth pointing out that the Bank of Pennsylvania and the Bank of North America were not the only commercial corporations designed or led by important founders whose corporate charters used the target phrases prior to the constitutional convention.For example, the Constitution of the Bank of New York, drafted by Hamilton in 1784, also included a “necessary and proper” clause.It authorized the bank’s president and directors to petition the legislature for an act of incorporation and laws that would punish counterfeiters in a manner “as they shall judge necessary and proper for the Security of the Stockholders and the Public.”
These examples are only a fraction of the evidence that seem to prove beyond any reasonable doubt that Wilson and the other founders were well acquainted with the phrase “necessary and proper” and similar language before this phrase was inserted into the Necessary and Proper Clause by the Committee of Detail.Just sticking to the most obvious sources, the collected papers of the nation’s most powerful military leader (Washington),its most important financial officer (Morris),and its most influential foreign diplomats (Adams, Jay, Jefferson, Franklin)are full of occasions in which this language is used. Consider some further examples:
(Again, these lists are not meant to be exhaustive. For example, as Alison LaCroix points out in her terrific new article on "The Shadow Powers of Article I", Daniel Dulany used the phrase "necessary or proper" in his 1765 essay on the Stamp Act. Presumably, if one were to dig deeper into the documentary records of the era -- including the papers of George Mason, Patrick Henry, Richard Henry Lee, and other prominent critics of the Sweeping Clause, for instance -- many other examples could be uncovered as well.)
In sum, there is a mountain of evidence to refute the claim that the Constitution's "necessary and proper" language was unfamiliar, obscure, or unintelligible in 1787. This evidence also tends to undercut the popular assumption that “necessary and proper” was a technical term, which only lawyers or legally sophisticated individuals could accurately comprehend.If this is correct, then many stimulating and influential efforts to grasp the original meaning of this language in order to uncover the original understanding of the Necessary and Proper Clause may be barking up the wrong tree (see, for example, here, here, and here). One must look elsewhere to discover why the Necessary and Proper Clause was so important and became such a lightening rod for opponents of the Constitution during ratification.