Bingham on the Necessary and Proper Clause
posted by Gerard Magliocca
In recent years, some conservative scholars and bloggers have advanced the argument that the word “proper” in the Necessary and Proper Clause should be read as a limitation on congressional authority. (In other words, a federal statute can be necessary but not proper.) I’m not persuaded by this argument, but I thought I’d throw in a quotation from Bingham discussing this topic on the House floor in 1862.
“Congress is the sole judge of what legislation is ‘necessary and proper’ for the common defense, the suppression of insurrection, the repelling of invasion, and the defense of the Constitution. The word necessary as used is not limited by the additional word ‘proper,’ but enlarged thereby.”
Now I’ll grant that you could say that “proper” should be read differently in wartime as opposed to peacetime, but it would be odd to say that in one case it adds power while in the other it subtracts power. This debate, though, speaks to a broader problem. It would appear that “necessary and proper” was a phrase that was conjured out of thin air at the Constitutional Convention. I don’t know of any prior uses of that phrase that would shed light on what it was supposed to mean, though I’m going to look into that.