The Right Coast

September 21, 2005
 
Hamilton's View of the Necessary and Proper Clause: A Foundational Mistake
By Mike Rappaport

The Necessary and Proper Clause is one of the foundation stones of liberal jurisprudence. It is the textual hook that liberals (and some conservatives) use both for an expansive federal government and for Congressional statutes that depart from a strict separation of powers. Gary Lawson, an originalist scholar (and a friend) has spent much of his career showing that the broad interpretation of the Clause is mistaken. His most recent piece on the Clause is "Discretion as Delegation: The “Proper” Understanding of the Nondelegation Doctrine" in the George Washington Law Review, which includes this powerful attack on Alexander Hamilton's broad view that any means that is "rationally related" to an enumerated power is "necessary":

As an original matter, the “rational basis” standard of Hamilton has no constitutional foundation. The textual case against the Hamiltonian rational basis interpretation is simply devastating. Textually, it is linguistically bizarre to read the word “necessary” to mean anything like “rationally related to.” Samuel Johnson’s 1785 Dictionary of the English Language defined “necessary” as “1. Needful; indispensably requisite. 2. Not free; fatal; impelled by fate. 3. Conclusive; decisive by inevitable consequence.” This is not the stuff of which rational basis standards are made. Moreover, when the Constitution mean to give actors unfettered discretion with respect to means and ends, it knows how to do so.

Hamilton’s famous observation that “[i]t is a common mode of expression to say, that it is necessary for a government or a person to do this or that thing, when nothing more is intended or understood, than that the interests of the government or person require, or will be promoted by, the doing of this or that thing,” appears to be blather. I am not a historian, so I cannot claim extensive familiarity with the eighteenth-century discourse. But I have examined every usage of the word “necessary” prior to or contemporaneous with Hamilton’s comment that appears in the (considerable) database contained at the American Freedom Library CD-ROM, and none of those usages even remotely conform to Hamilton’s. Samuel Johnson would, unsurprisingly, appear to have much the better of this particular argument.
Update: Some readers have argued that Jefferson's view of "necessary" is also problematic. But neither Lawson nor I adopt Jefferson's view. It is Madison's characteristically intermediate view that is the best approach.