The Origins of the Necessary and Proper Clause by Gary Lawson Geoffrey P. Miller Robert G. Natelson Guy I. Seidman

Author:Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, Guy I. Seidman [Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, Guy I. Seidman]
Language: eng
Format: epub, pdf
Tags: AvE4EvA
ISBN: 9780511776724
Publisher: Cambridge University Press
Published: 2010-05-05T20:00:00+00:00

F. Some Observations from the Federal Convention Records

Except for the dissents of Mason and Gerry, the convention records strongly corroborate the view of the Necessary and Proper Clause that one could deduce from contemporaneous legal usage of similar provisions: The word “necessary” was inserted into the proposed Constitution to communicate that Congress would enjoy incidental powers. The separate insertion of the word “proper” strongly suggests it had a meaning separate from necessary, and almost certainly a restrictive one. Pierce Butler’s consideration of a motion to delete “proper” also suggests the word had independent meaning to him as well, and his decision to abandon his motion fits well with his known states-rights views.

Finally, the manner in which the delegates employed the word “proper” strongly suggested that federal laws, even if “necessary,” would not be proper if they violated Congress’s fiduciary responsibilities.

the Constitution 350 (John P. Kaminski & Gaspare J. Saladino eds., 1981) [hereinafter Documentary History] (“the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their powers … as far as they shall think proper”).

51 To be precise, however, the “Formula Two”-type discretionary language in royal commissions usually defined the scope of express powers rather than general clauses added to previous enumerations. Terms reciting the latter usually, although not always, used the objective language of Formulas Four and Five. See generally Anthony Stokes, A View of the Constitution of the British Colonies, 150–64 (1783) (reproducing the form of a royal commission). But see Royal Instructions to British Colonial Governors 1670–1776, at 629 (Leonard Woods Labaree ed., 1935) (a nonstandard form with the words “or such others as you shall think most proper”).

52 2 Farrand, supra note 11, at 632–33.