Article Image

IPFS News Link • Congress-Congressmen

How to Build the Biggest 'Necessary' Government in History

• https://libertarianinstitute.org, by TJ Martinell

The clause states:

"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."

On the surface, it seems straightforward. Simply put, Congress possesses the means "necessary" to carry out its powers authorized by the Constitution itself.

But what constitutes "necessary?"

The question may seem semantic, but Randy E. Barnett writes in his paper "The Original Meaning Of The Necessary And Proper Clause" that the definition of the term was not only debated in the early years of the Republic, but it had enormous implications for congressional power and how to interpret other parts of the Constitution.

"The meaning one attributes to the terms "necessary" and "proper" is, therefore, enormously important because the nature and scope of judicial review turns on which meaning one adopts," he writes. "It is important to get the original meaning correct, even if it is not dispositive of today's cases and controversies."

The first and best place to start to answer this question are of course the Philadelphia Convention as well as the state ratifying conventions.

Most significant about its addition to the Constitution wasn't what was said about it in Philadelphia, but what was not said. Barnett writes that the clause was added "without any previous discussion by the Constitutional Convention. Nor was it the subject of any debate from its initial proposal to the Convention's final adoption of the Constitution."


JonesPlantation