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Bingham on the Necessary and Proper Clause

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Joe says:

    I am under the impression “proper” includes those things that don’t violate textual limitations in the Constitution or structural/other sorts of things (like federalism) that violate its spirit. So, the word has some limiting function.

    The other possible use of “proper” is that it is functionally useful or something to advance the power in question. This would be the job of the legislature though substantive due process puts a minimal rationality test that the courts might enforce.

    It would be interesting to determine where the term arose. The drafting committee was given instructions to list those things the national legislature would rightly control because individual states could not. A list is there and the last phrase suggests a liberality in applying it (though it doesn’t just apply to Art. 1, sec. 8 alone).

  2. I believe that Luther Martin argued on behalf of the State in McCulloch that “necessary” meant indispensable and that Marshall rejected that argument. Later commentators have twisted that argument into the N&P clause being an affirmative grant of power to Congress, but that was not Martin’s point; nor was it the point of Marshall’s rejection

  3. Joe says:

    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.

    I’m a bit confused how it is “twisted” to suggest this is an “affirmative grant of power.” Marshall noted:

    “But the Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the Government to general reasoning. To its enumeration of powers is added that of making”

    and cites the clause. He also rejected this argument: “though in terms a grant of power, is not so in effect, but is really restrictive of the general right which might otherwise be implied of selecting means for executing the enumerated powers.”

    As the author of the lede discussion noted in his first book, there was a sentiment that rejected the principles of the opinion but it returned to respectability when Republicans used it to define the contours of the Reconstruction Amendments etc.

    It is reasonable to challenge it but less so to pretend those who support his reasoning are misstating it.

  4. Joe. Your response confuses me. Martin argued that N&P was a limit on Congressional power; Marshall rejected that in McCulloch. Later commentators and courts have argued that N&P was an affirmative or independent grant of power. I believe that view to be wrong–”necessary” means that the power exercised must relate closely to an enumerated power; “proper” means that the exercise was otherwise OK under the Constitution.

  5. Joe says:

    It might be helpful if you address specifically what part of my comment is confusing. You said this:

    “Later commentators have twisted that argument into the N&P clause being an affirmative grant of power to Congress, but that was not Martin’s point; nor was it the point of Marshall’s rejection.”

    Marshall, as I noted, in the opinion how the NPC was “added” to the powers granted to Congress and refutes those who argue that “though in terms a grant of power, is not so in effect.”

    The commentators are not “twisting” anything here. Marshall himself agreed that it was a grant of power affirmatively added. It terms “enlarge, not to diminish” and is “an additional power.” The “relate closely” is not an actual qualifier found in the Constitution or McCulloch v. Maryland.

    The power exercised needs to 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.’ Not “closely” to them.

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