Today in Everything Wrong the Constitution, we examine how a late edit created one of the most powerful clauses for the creation of a strong national government. Its inclusion was cited by the three men that refused to sign the ratification of the Constitution as a reason for refusing to do so:

The necessary and proper clause.

The Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or in any Department or Officer thereof,” Article I, Section 8, clause 18.

The Tyrant’s Dream

Though not the most destructive clause in the Constitution, it is perhaps the most vague. The necessary and proper clause is a great example of why the Federalists were wrong that the Constitution was “clear in its enumerated power” and made it “impossible for the federal government to grow too large”; because of this oversight 230 years ago, the United States government is now one of the largest employers in the entire world.

The breadth of the necessary and proper clause came in the dually important case McCulloch v. Maryland, 17 U.S. 316 (1819) when the Court upheld the creation of the second Federal United States bank, noting that “if Congress found it necessary to open a bank so that it could levy taxes, print money, and provide for the armed defense,” it could do so. There was nothing in the Constitution to prohibit the formation of a federal bank, and a restriction on doing so (which had been found in the Article of Confederation) were not present in the current Constitution, so Congress was not restricted from doing so.

In a case more applicable to today, the Supreme Court used the necessary and proper clause to wipe out a contractual obligation that was required to be paid in particular value of gold coin in Norman v. Baltimore & O. R. Co., 294 U.S. 240 (1935). After FDR took to devaluing the U.S. dollar during the Great Depression, a joint resolution of Congress required that payments be made on the new standard instead of the previous standard which the railroad sought to enforce due to the higher quantities of gold in the old standard. The Supreme Court disagreed, holding that it was the duty of Congress to regulate the value of money and that it may require the complete usage of this new standard in regulating the currency of the U.S.

With the precedent set that the necessary and proper clause was extremely generous to acts of Congress in executing their enumerated rights, little has stood in the way of Congress when it can recognize how to fit an act into one of its numerous enumerated rights, making challenge to laws extremely difficult. Unfortunately, the high Court has been willing to fit many acts into the enumerated rights, as will be seen, making the “necessary” part of the “necessary and proper” clause essentially obsolete.

Let’s Discuss

Outraged with the lengths the Supreme Court will go to uphold government action? Let me know. The case law on the necessary and proper clause is rather settled, so it is little cited today, but I’d love to dig in deeper.