Unnecessary and Unintelligible

By Graber, Mark A. | Constitutional Commentary, Summer 1995 | Go to article overview

Unnecessary and Unintelligible


Graber, Mark A., Constitutional Commentary


No constitution produced after much deliberation by reasonably intelligent persons is likely to contain passages that are "stupid" in the sense of being "foolish; dull in intellect; nonsensical."(1) Many constitutional provisions quickly outlived their original purpose (the electoral college)(2) and others are venal (the not-so oblique protections of slavery). Nevertheless, contemporary claims that some constitutional provision is plainly stupid probably overlook the sound reasons the framers had for inserting that particular language into the constitutional text.

Still, if any provision in the constitution merits the appellation "stupid," it is the conclusion of Article I, [sections] 8, which states that "the congress shall have the Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Understood literally, the clause prevents congress from exercising vital constitutional powers. More significantly, the necessary and proper clause satisfies historical tests for stupidity: The framers did not seriously consider its meaning, and prominent defenders of the constitution subsequently confessed that the provision was unnecessary and unintelligible.

The necessary and proper clause apparently establishes a constitutional standard that legislation rarely meets. No necessary means exist in many cases for realizing certain purposes. There is, for example, no necessary way of leaving a room with two doors. Although many policies help further such government goals as reducing poverty, promoting peace or preventing crime, no single legislative strategy seems the necessary means for achieving those ends. The phrase "necessary and proper" also obliterates the distinction between constitutionality and wisdom, a distinction central to the framer's goal of eliminating basic regime questions from normal political discourse.(3) A measure that is unwise cannot be a necessary means for achieving some important constitutional purpose. Hence, a literal reading of the necessary and proper clause suggests imprudent measures must be unconstitutional.

Better would have been emulation of the Massachusetts constitution and its authorization of "wholesome and reasonable orders, laws, statutes, and ordinances."(4) No one besides John Marshall and Alexander Hamilton, however, seriously contends that "necessary ... means no more than needful, requisite, incidental, useful or condusive to,"(5) even if one rejects the Jeffersonian argument that "necessary means" are "those means without which the grant of power would be nugatory."(6) Unfortunately, no one, including the constitutional framers, knows the point of the phrase "necessary and proper."

The records of the Constitutional Convention provide no help. The Committee on Detail gave no hint why it chose the language it did, and the Convention in turn apparently perceived these particular alterations to prior drafts as merely stylistic, accepting the Committee's handiwork without debate or what a modern analyst might term "republican deliberation."(7) At the least, this suggests that the delegates were unaware of the capacity for controversy contained within the Clause.

Delegates who thought the phrase "necessary and proper" would clearly demonstrate that Congress did not have an unlimited authority to pass laws were quickly disabused of that foolish notion by anti-Federalist commentators. Leading opponents of the Constitution immediately pointed out that as long as Congress retained the power to determine what laws were "necessary and proper," the Clause would not in practice limit congressional discretion in any way.(8) "Necessary and proper" was a stunningly poor candidate for guiding legislative judgment, Brutus pointed out, because it is "utterly impossible fully to define this power."(9) At the least the ambiguity of the Clause belies the founding generation's belief that written constitutions would require "no sophistry; no construction; no false glosses, but simple inferences from the obvious operation of things. …

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