The Origins of the Necessary and Proper Clause. Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman. Cambridge, 2010. Pp vii, 176.
Talk is cheap. Calling yourself the king of France will not replace the Fifth Republic with a monarchy. Americans love to talk about, extol, and announce their attachment to their Constitution. What, if anything, they mean by all of that is an important question.
On the second day of the current session of Congress, members of the House of Representatives went beyond talking about the Constitution and actually read most of it. One day earlier, the House amended its rules to reflect a fundamental principle of the Constitution: enumerated federal power. House bills must now include a statement of the constitutional powers on which they rest.
These statements may turn out to be repetitive and little more than cheap talk. Many of the statements likely will invoke Congress’s taxing power, about which there can be no question. Many of them likely will invoke a purported power to spend government money for the common defense and general welfare, though the existence of such a power is denied by a tradition going back to James Madison. And many—probably most, possibly all—will invoke the Necessary and Proper Clause of Article I, § 8. These statements raise the question whether much of the federal government’s substantive legislation is based on an unduly broad reading of that clause and therefore inconsistent with the Constitution. The Origins of the Necessary and Proper Clause casts new light on that question.