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Constitutional education, history, commentary, reform, compliance, and interpretation.

2010/12/14

Unnecessary and Improper

What are the origins of constitutional infidelity? Some go back to the Alien and Sedition Acts of 1798, but that was turned back by the Election of 1800. Although there are still proponents of similar measures today, for the most part the departures that still plague us began with some opinions by Chief Justice John Marshall, in which he included some dicta on the Necessary and Proper Clause, Art. I Sec. 8 Cl. 18:

The Congress shall have Power ... 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.
It did not take long after the adoption of the Constitution for ambitious politicians to try to stretch this clause, leading to its early nickname, the "elastic clause".

The first case in 1819

The first case was McCulloch v. Maryland, 17 U.S. 316 (1819), which contains the following passages:

The word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable, and without which the power would be nugatory. ... Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to [p*414] produce the end, and not as being confined to those single means without which the end would be entirely unattainable.
CJ John Marshall may have been correct that in common parlance "necessary" does not always mean essential. But it does in law, and in the common law tradition that provided the language of the Constitution, and the rule of construction that powers always be construed as narrowly as possible. This was the basis for both the wrong expansion of the meaning of "necessary" and for expansion of "carrying into execution" from making an effort to getting a desired result. It is perhaps the single greatest error in constitutional construction in the history of the Supreme Court.

In a letter to Spencer Roane, Sep. 2, 1819, an opponent of the opinion in McCulloch,  James Madison condemned the opinion, saying
... what is of most importance is the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned.
...
But it was anticipated I believe by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant as what has occurred. And those who recollect, and still more those who shared in what passed in the State Conventions, thro' which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented its ratification.
Thomas Jefferson described the Tenth Amendment as “the foundation of the Constitution” and added, “to take a single step beyond the boundaries thus specially drawn … is to take possession of a boundless field of power, no longer susceptible of any definition.” That is a restatement of the ancient Latin maxims:

Potestas stricte interpretatur. A power is strictly interpreted. 
In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
Next case

Five years later, in Gibbons v. Ogden, 22 U.S. 1 (1824), CJ Marshall further built on this with the passages:
This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in [p*188] the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it.
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.
Note this contains a logical error. From the proposition that all commerce involves transport, and perhaps navigation, it does not follow that all navigation is commerce. That is taking the word "is" meaning "is a subset of" to mean "is equivalent to". CJ Marshall did not live in an era when people knew about set theory, but as one self-educated in the law, he also did not benefit from some sense of set theory that more advanced legal scholars of his time would have enjoyed.
All America understands, and has uniformly understood, the word "commerce" to comprehend navigation.
Marshall goes on to say:
It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. ... the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.
This departure was only in dicta, which may be why Jeffersonians did not react by proposing amendments to overturn them. For a long time, further decisions were not based on the dicta, but eventually, pressure from statists to expand the power of government tempted them to seize on the dicta as authority. This led to the key decision of Wickard v. Filburn, 317 U.S. 111 (1942), and more recently, U.S. v. Comstock, No. 08-1224 (May 17, 2010).

Original meaning of "commerce"

As a matter of historical fact, the word "commerce" was almost never used in common parlance in the colonies or newly independent states prior to 1787. A search of newspapers, speeches, and letters of that time and place finds few instances of it. The word is originally French, and we have this from Emmerich de Vattel, in his Law of Nations (1758), Book I § 92:
... commerce consists in mutually buying and selling all sorts of commodities.
Vattel was well-known to, and often cited by, the legally trained Founders, but not by ordinary citizens.

However, we have this from an article from the first edition of the Encyclopedia Britannica, 1771:
COMMERCE is an operation, by which the wealth, or work, either of individuals, or of societies, may be exchanged, by a set of men called merchants, for an equivalent, proper for supplying every want, without any interruption to industry, or any check upon consumption.
The rest of the article discusses as articles of commerce only tangible commodities, not services, debt instruments, or the activities of producers, merchants, or consumers.


Many have demanded a rollback of this line of precedents, but most of the proposals are inadequate. Asserting the Tenth Amendment won't work unless we attack the notions that "necessary and proper" is to get a result beyond making an effort, and that the power to regulate is the power to do whatever it takes to get a desired outcome. See Draft Amendments.

What is the meaning of "necessary and proper"?

It is useful to examine early usages of the terms "necessary" and "proper" using the Google Books Ngram Viewer for these terms.

These opinions did not go unchallenged in their own time. Lawyer and Jeffersonian civic leader Robert James Turnbull, in a series of articles collected into a book titled The Crisis, said:

[The Constitutional Convention] judiciously restricted the National Legislature to the enacting of such laws as were necessary and proper, for the execution of the delegated powers. The words necessary and proper, in the Constitution, have a peculiar force. Ingenious men may amuse us with their nice and their subtle distinctions — Philologists may puzzle us with their varied criticisms — but there is no need of skilful critics or refined reasoning, in a matter of this kind. The words necessary and proper, are in constant use among men. They have a plain and obvious import, and a popular signification. They are no sooner pronounced, than they strike us like a sensation, and that sensation instantly excludes from the mind, the idea of an unlimited choice of means. The means to be adopted by Congress, must not be simply appropriate, or fit, or adapted to the end, but they must be necessary, as well as proper. The words are not necessary or proper, but necessary and proper. Had it been the intention of the Convention to have given Congress unlimited discretion to have selected from the vast mass of incidental powers, any and whatever means it might decide to be proper, such an intention to confer a choice, might have been better expressed, and would have been expressed in other words. — They would have said, and "to use and exercise all other powers incidental to the foregoing powers." But the clause as it stands, is clearly a limitation on the implied powers of Congress. The Chief Justice, however, thinks not. He decides, that the clause is sufficiently explicit, and gives the National Legislature the most ample powers to accomplish the ends of the government, by any means which have a relation to the objects entrusted to its management. In fact, he is of opinion, that this power, "to make all laws, which shall be necessary and proper, to carry into execution" their other powers, was designed to enlarge, and not to abridge, the discretion of the Legislature.
What is the meaning of "carrying into execution"?

What is often overlooked is that the phrase "necessary and proper" is only for "carrying into execution", not "carrying into effect", the express powers. "Execution" is clearly only to make an effort, not to get an outcome, which would have been indicated by "effect" if that word had been chosen. That distinction can be found in the long pre-1787 tradition of legal word usage. If a delegated power were to do whatever it might take to get an outcome, then there would be no limit on the means, and the enumeration of limited delegated powers would make no sense. Once it is understood only to enable an effort, then it is clear that no enablement can lawfully extend an express power into another kind of express power. The power to regulate does not, therefore, imply the power to prohibit, or impose criminal penalties, or tax, or promote, or to do any of the other kinds of efforts enumerated.

Jurisprudence over the Necessary and Proper Clause has never really examined in depth the meaning of its key phrase, “carrying into execution”, that specifies the purpose for which powers be “necessary and proper”. In McCulloch Marshall just glossed over the phrase and inserted his own specification that it be for whatever purpose Congress might have, that it be for carrying into “effect” that purpose rather than “execution” of the effort authorized. However, examination of the historical background of the term “execution” finds it meant only to make a certain kind of effort, not to get a result for which that effort might be made. That distinction is the key to getting to original understanding of the clause.

There is a long line of cases that reads the clause as though the word “execution” meant “effect”, but I find no case in which that distinction was effectively argued. Therefore, the way remains open to making that argument for the first time and to have current cases decided on the basis of it.

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