Saturday, January 22, 2011

Making Laws ``necessary and proper``, our Founder`s meaning

Our federal Constitution grants power to Congress:

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 ---Article 1, Section 8, Clause 18

So, what did the framers and ratifiers intend by including these words in our Constitution? Were the words in question intended to allow Congress to make and enforce any law it may decide to be “necessary and proper”? The Anti-Federalist vigorously objected to vest such power in the new government being created, and, the clause in question, as stated by the Anti-Federalist appeared to be an allowance for unlimited power and would ultimately be used by the federal government to consume all powers intended to be reserved by the various States. In answer to such fears, the Federalists repeatedly assured that such interpretations of the clause in question were not intended, nor could the clause in question be construed as such without intentional misrepresentations!

In Federalist No. 33 Hamilton, in explaining the clause with relation to taxation says:

“These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution….This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws NECESSARY and PROPER for the execution of that power; and what does the unfortunate and culumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws NECESSARY and PROPER to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.

Likewise, MADISON states the following with regard to the necessary and proper clause often referred to as the “sweeping clause“:

But it gives no supplementary power. It only enables them to execute the delegated powers. If the delegation of their powers be safe, no possible inconvenience can arise from this clause. It is at most but explanatory. For when any power is given, its delegation necessarily involves authority to make laws to execute it. Were it possible to delineate on paper all those particular cases and circumstances in which legislation by the general legislature would be necessary, and leave to the states all the other powers, I imagine no gentleman would object to it. But this is not within the limits of human capacity. The particular powers which are found necessary to be given are therefore delegated generally, and particular and minute specification is left to the legislature. --- 3 Elliots 438

Madison’s words are also in harmony with that of GEORGE NICHOLAS regarding the clause in question:

…he observed that, if it had been added at the end of every one of the enumerated powers, instead of being inserted at the end of all, it would be obvious to any one that it was no augmentation of power. If, for instance, at the end of the clause granting power to lay and collect taxes, it had been added that they should have power to make necessary and proper laws to lay and collect taxes, who could suspect it to be an addition of power? As it would grant no new power if inserted at the end of each clause, it could not when subjoined to the whole.____ 3 Elliots 443

And, in the North Carolina ratification debates, MACLAINE says the following:

Mr. Chairman,

…if we had all power before, and give away but a part, we still retain the rest. It is as plain a thing as possibly can be, that Congress can have no power but what we expressly give them. There is an express clause which, however disingenuously it has been perverted from its true meaning, clearly demonstrates that they are confined to those powers which are given them. This clause enables them 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 any department or officers thereof." This clause specifies that they shall make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws. I hope this will satisfy gentlemen.
____ 4 Elliots 141

It should also be noted that Wilson, who participated in the drafting the Constitution, states the following during the Pennsylvania ratification debates:

The gentleman in opposition strongly insists that the general clause at the end of the eighth section gives to Congress a power of legislating generally; but I cannot conceive by what means he will render the words susceptible of that expansion. Can the words, "The Congress shall have power to make all laws which shall be necessary and proper to carry into execution the foregoing powers," be capable of giving them general legislative power? I hope that it is not meant to give to Congress merely an illusive show of authority, to deceive themselves or constituents any longer. On the contrary, I trust it is meant that they shall have the power of carrying into effect the laws which they shall make under the powers vested in them by this Constitution___ 2 Elliots 448……. And he goes on to state that the power in question “gives no more or other powers; nor does it, in any degree, go beyond the particular enumeration; for, when it is said that Congress shall have power to make all laws which shall be necessary and proper, those words are limited and denned by the following, "for carrying into execution the foregoing powers." It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution____ 2 Elliots 468

Which brings us to the following line of reasoning. If the Anti Federalist feared the necessary and proper clause would create a general and unlimited legislative power and were against such power being granted to Congress, and, the Federalists assured the Anti-Federalist that such an interpretation was not within the intended meaning of the clause in question, who can be pointed to during the framing and ratification of our Constitution as being an advocate for granting this unlimited power to Congress? I suspect the only ones who attach an unlimited and general legislative power to the clause in question are those who today want the Constitution to mean whatever they wish it to mean and want our Washington Establishment to be able to adopt and enforce a variety of new regulatory powers never intended to be exercised under our written Constitution, and are actually forbidden to be exercised by our Constitution’s Ninth and Tenth amendments!


Expounding upon our Constitution is not a matter of “interpretation” as some would have us believe…it is a task of “documentation”! Enemies of our constitutional system wish to ignore the recorded intentions for which our Constitution [each article, section, clause and amendment] was adopted in order to then be free to make the Constitution mean whatever they wish it to mean.