Academic journal article St. John's Law Review

The "Rational Federalist": Synthesizing Necessity and Propriety in the Sweeping Clause

Academic journal article St. John's Law Review

The "Rational Federalist": Synthesizing Necessity and Propriety in the Sweeping Clause

Article excerpt

Today, the United States Supreme Court's Necessary and Proper Clause jurisprudence sits cloaked in a mantle of uncertainty. Beneath this cloak lies a slew of conflicting tests which have left scholars befuddled as to the Clause's true scope and meaning. This confusion has generated feverish debate among scholars with differing views of congressional power. Unfortunately, within this battleground of competing viewpoints lies no clear answer.

Despite this uncertainty, there can certainly be a more pellucid and effective interpretation of the Necessary and Proper Clause. This Note will argue that flexibility as to what constitutes a "necessary" law combined with a rigid standard for what makes a law "proper" enables Congress to execute its enumerated powers without overreaching. Part I outlines differing scholarly theories as to the legal origins of the Necessary and Proper Clause. Sections A, B, and C outline the theories that the Clause stems from principles of agency law, administrative law, and corporate law, respectively. Section D examines the implied powers theory of the Clause's genesis. Next, Part II examines the Supreme Court's early Necessary and Proper Clause jurisprudence-namely McCulloch v. Maryland, the seminal case which set the Clause in motion. Part III outlines four different categories of Necessary and Proper Clause interpretation that the Supreme Court has recently espoused.1 Section A examines two broad forms: the "Rational Connection" approach and the "Chain-link" approach. Conversely, section B examines two narrow forms: the "One-step" approach and the "Federalist Restriction" approach. Finally, Part IV will argue that a combination of the "Rational Connection" approach and the "Federalist Restriction" is ultimately the soundest construction of the Necessary and Proper Clause.


The opacity of the Necessary and Proper Clause's origin lies in the lack of debate over the clause at the Constitutional Convention.2 Indeed, records of debates over the clause's scope and meaning at the Convention are scant.3 The clause itself was added by the Convention's Committee on Detail, spearheaded by James Wilson-a prominent lawyer from Maryland.4 Yet it was not until the pre-ratification debates that the clause generated meaningful arguments among the nation's most eminent legal minds.5 The ambiguity shrouding the clause's roots has inspired many legal scholars to ruminate as to its true origins, scope, and meaning. For example, Professors Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman contend that the "Sweeping Clause" was painted with shades of eighteenthcentury agency, administrative, and corporate law, which ultimately give Congress incidental authority to effectuate its enumerated powers.6 Conversely, Professor John Mikhail suggests that the framers used a different brush-one varnishing broad strokes of implied and unenumerated powers stemming directly from the all "other powers" provision within the clause itself.7 This Part will examine each of these theories in turn.

A.Origins in Agency Law

Professor Natelson suggests that the framers intended the Sweeping Clause power to be exercised pursuant to fiduciary principles of agency.8 The founders' intent was "to erect a government in which public officials would be bound by fiduciary duties to honor the law, exercise reasonable care, remain loyal to the public interest, exercise their power in a reasonably impartial fashion, and account for violations of these duties"9-an idea with roots embedded in the Lockean social compact.10 This fiduciary ideal permeated the Constitutional Convention. Several of the delegation's most prominent figures, such as James Madison, Alexander Hamilton, John Dickinson, and George Washington, all considered government officials to be public trustees, servants, and agents of the people.11 Moreover, most of the men who drafted the Constitution were either lawyers with personal fiduciary experience or businessmen who employed fiduciaries. …

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