THE ORIGINAL MEANING OF THE NECESSARY AND PROPER CLAUSE
This article presents evidence of the original public meaning of the Necessary and Proper Clause. I show that the choice among the meanings of "necessary" we have inherited from John Marshall's discussion in McCulloch v. Marylandbetween "indispensably requisite" on the one hand and mere "convenience" on the other is undercut by the available evidence. The truth lies somewhere in between. While these findings will, of course, be of interest to originalists, they should also interest the many constitutional scholars who consider original meaning to be one among several legitimate modes of constitutional analysis, or those scholars for whom original meaning is the starting point of a process which then translates it into contemporary terms. By either account, it is important to get the original meaning right, even if it is not alone dispositive of today's cases and controversies.
This is the companion to two previous articles"The Original
Meaning of the Commerce Clause" 68 U. Chi. L. Rev. 101(2002) and
"New Evidence on the Original Meaning of the Commerce Clause"
55 U. Ark. L. Rev. 847 (2003)in which I presented evidence of the
public meaning of Congress's power "To regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes."
To determine the constitutionality of any particular legislation and evaluate
judicial applications of the Commerce Clause, however, we must also consider
the meaning of the Necessary and Proper Clause. For the expansive post-New
Deal reading of congressional power owes as much to the Supreme Court's
interpretation of the Necessary and Proper Clause as it does to its expansive
reading of the Commerce Clause.
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Carmack Waterhouse Professor of Legal Theory Georgetown University Law Center