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.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.