Bingham on the Necessary and Proper Clause

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.

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5 Responses

  1. Joe says:

    I am under the impression “proper” includes those things that don’t violate textual limitations in the Constitution or structural/other sorts of things (like federalism) that violate its spirit. So, the word has some limiting function.

    The other possible use of “proper” is that it is functionally useful or something to advance the power in question. This would be the job of the legislature though substantive due process puts a minimal rationality test that the courts might enforce.

    It would be interesting to determine where the term arose. The drafting committee was given instructions to list those things the national legislature would rightly control because individual states could not. A list is there and the last phrase suggests a liberality in applying it (though it doesn’t just apply to Art. 1, sec. 8 alone).

  2. I believe that Luther Martin argued on behalf of the State in McCulloch that “necessary” meant indispensable and that Marshall rejected that argument. Later commentators have twisted that argument into the N&P clause being an affirmative grant of power to Congress, but that was not Martin’s point; nor was it the point of Marshall’s rejection

  3. Joe says:

    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.

    I’m a bit confused how it is “twisted” to suggest this is an “affirmative grant of power.” Marshall noted:

    “But the Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the Government to general reasoning. To its enumeration of powers is added that of making”

    and cites the clause. He also rejected this argument: “though in terms a grant of power, is not so in effect, but is really restrictive of the general right which might otherwise be implied of selecting means for executing the enumerated powers.”

    As the author of the lede discussion noted in his first book, there was a sentiment that rejected the principles of the opinion but it returned to respectability when Republicans used it to define the contours of the Reconstruction Amendments etc.

    It is reasonable to challenge it but less so to pretend those who support his reasoning are misstating it.

  4. Joe. Your response confuses me. Martin argued that N&P was a limit on Congressional power; Marshall rejected that in McCulloch. Later commentators and courts have argued that N&P was an affirmative or independent grant of power. I believe that view to be wrong–“necessary” means that the power exercised must relate closely to an enumerated power; “proper” means that the exercise was otherwise OK under the Constitution.

  5. Joe says:

    It might be helpful if you address specifically what part of my comment is confusing. You said this:

    “Later commentators have twisted that argument into the N&P clause being an affirmative grant of power to Congress, but that was not Martin’s point; nor was it the point of Marshall’s rejection.”

    Marshall, as I noted, in the opinion how the NPC was “added” to the powers granted to Congress and refutes those who argue that “though in terms a grant of power, is not so in effect.”

    The commentators are not “twisting” anything here. Marshall himself agreed that it was a grant of power affirmatively added. It terms “enlarge, not to diminish” and is “an additional power.” The “relate closely” is not an actual qualifier found in the Constitution or McCulloch v. Maryland.

    The power exercised needs to 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.’ Not “closely” to them.