Article I, Section 8, provides, “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.” When it was adopted, this formulation itself was nothing new. Several of the colonial charters and most of the state constitutions had similar provisions. The Articles of Confederation were somewhat unusual in limiting powers to only those expressly enumerated.
A late addition to Article I, the clause aroused little discussion in the Constitutional Convention. This became, however, one of the most controversial issues contested during the ratification debates. Anti-Federalists feared that so broad a delegation would combine with the Supremacy Clause to give the federal government power to overturn any state laws that hindered the pursuit of its broad ends. In The Federalist Papers, Alexander Hamilton and James Madison suggested that the clause itself is actually unnecessary as sovereignty implies the delegation of all power requisite to completing the ends specified. The clause merely made that truth explicit.
|ARTICLE I, SECTION 8, CLAUSE 18
|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.
The debate over the bill to create the Bank of the United States in 1791 probed the meaning of this clause further. In the House of Representatives, Madison challenged the bill on the grounds that the incorporation of a bank was too loosely connected to Congress’s detailed ends. The right to incorporate was so substantial in its own right, he insisted, that the Constitution would have enumerated that power had it in fact been delegated to Congress. Pointing to several instances where powers more directly related had been specifically listed and linked, Madison confined the “implied powers” of the Necessary and Proper Clause to the small space remaining in between. His tone had shifted, but his principles had not: Congress still enjoyed all the power necessary to fulfill its ends, but the notion of that which is “necessary” had narrowed significantly. When the bill advanced to President George Washington, Thomas Jefferson took an even more extreme position. Rather than setting an outer confine as Madison had done, he argued that all implied powers must follow necessarily from enumerated powers. He understood “necessary” to imply only “those means without which the grant of power would be nugatory.” Restricting the clause to the extent Jefferson advocated, however, would render much of the two previous years of congressional legislation unconstitutional, an eventuality no one found appealing. Hamilton framed Jefferson’s position as reactionary, invoking the axiom laid out in The Federalist that the investment of a purpose in a government necessarily implies the investment of all power (not expressly limited) requisite to fulfilling it. Whereas Madison and Jefferson had claimed that a congressional assumption of a power of incorporation would impinge on state sovereignty, Hamilton argued that the creation of a national bank would not preclude the states from erecting banks of their own. The key issue turned on the strictness of the relation between ends and means. Hamilton offered a rather expansive view, insisting that “necessary often means no more than needful, requisite, incidental, useful, or conducive to” (Hamilton 1971). Washington signed the bill several days later, thus endorsing Hamilton’s broad construction of the clause.
When the constitutionality of the bank was challenged in McCulloch v. Maryland (1819), Chief Justice John Marshall lent further credence to the Hamiltonian interpretation. In a statement that closely followed Hamilton’s definition, he asserted that “[necessary] frequently imports no more than that one thing is convenient, or useful, or essential to another.” In a sweeping claim, Marshall posited an interpretation of federal sovereignty at least as expansive as that suggested by Hamilton: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Maryland’s attempt to favor local, state-chartered banks was thwarted by this clause.
In 1832, Andrew Jackson vetoed an act to reincorporate the bank in an effort to return to the “strict construction” elaborated by Jefferson. He claimed that such a bank was neither necessary nor proper to any of Congress’s delegated ends. His broader efforts to secure federal retrenchment, however, were to no avail. Marshall’s expansive reading of the clause set forth in McCulloch and later reaffirmed in Gibbons v. Ogden (1824) had already become the foundation on which the budding range of federal powers was being built—powers that increasingly came at the expense of those traditionally held by the states.
The national bank was only the first of the many federal instruments used to shape the economy. Using this clause to bolster its other prerogatives, Congress assumed the power to erect a mint, prohibitively tax state banks, and regulate all intrastate commerce that may have only an indirect impact on interstate commerce. Hamilton’s “necessary” power of incorporation has been wielded toward other ends as well. Corporations have been established to manufacture merchant vessels and aircraft as part of the war power. This clause was also combined with the Interstate Commerce Clause to justify the formation of corporations to build railroads and interstate bridges. The Necessary and Proper Clause has been at the root of the development of almost all federal criminal law. Despite the fact that the Constitution enumerates only several crimes under federal jurisdiction, the U.S. Code has grown to include more than 500 penal infractions. Thus, Congress has begun to share even the states’ police power.
In 1997, the Supreme Court set limits to the construction of this clause. In Printz v. United States, the Court ruled that the background checks on the purchasers of handguns required by the Brady Act were not “necessary and proper” to Congress’s regulation of interstate commerce. Whereas the clause had generally been used to bolster federal power, it was used in this case to restrict congressional commercial regulation to that which was deemed “proper” and did not impinge on state sovereignty.
There has scarcely been an attempt to expand congressional power that has not been tied to the Necessary and Proper Clause. But the causal significance of the clause remains ambiguous. A Hamiltonian reading of the Constitution could establish most of Congress’s implied powers even without it. A Jeffersonian reading, on the other hand, could impose the strongest of limitations without it as well. Like the rest of the Constitution, the meaning of the so-called Elastic Clause is not innate and fixed but is, instead, indeterminate and ever-changing.
Sotirios A. Barber, “A Necessary and Proper Clause,” in Encyclopedia of the American Constitution, ed. Leonard Levy, Kenneth L. Karst, and Adam Winkler (New York: Macmillan Reference, 2000), 1790–91; “Necessary and Proper Clause,” in A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning, ed. Jethro Koller Lieberman (Berkeley: University of California Press, 1999), 216; “Necessary and Proper (Laws),” in The Language of the Constitution: A Sourcebook and Guide to the Ideas, Terms, and Vocabulary Used by the Framers of the United States Constitution, ed. Thurston Greene and Stuart Berg Flexner (New York: Greenwood Press, 1991), 432–57; Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1996); and Alexander Hamilton, “Opinion as to the Constitutionality of the Bank of the United States,” letter to George Washington, February 23, 1791 http://yale.edu/lawweb/avalon/amerdoc/bank-ah.htm.