Monthly Archives: March 2006

Constitutional History: Necessary and Proper

I have now turned my attention to the evolution of the US Constitution into the modern American political system. Of interest to me in this research is the identification of key phrases and clauses in the Constitution which have lead to the statist elements of our modern government. I am concerned both with the original intent of the Constitution framers, as well as the earliest interpretations of those clauses that began to inject statist controls and undermine the freedoms which existed at the beginning of the American Republic.

I am far from naieve in thinking that the Constitution has ever been a perfect document creating a political system in line with Objectivist principles. Unlike the Declaration of Independence, this foundational legal document was written by a committee upon the completion of lengthy, arduous and contentious negotiation among 13 sovereignties. Hence, it contains contradictions inevitably formed in compromise. That being said, the clauses which have been found to be the weak links in the armor of our freedom were very carefully written, and can usually be interpreted in ways that alternately support freedom, or indicate its limitation.

I hope to discuss several of the particular clauses here as I move through the legal history. One in particular is so-called “Necessary and Proper” clause:

The Congress shall have Power To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof.

Differing interpretations of the meaning of “necessary and proper” formed the fault line between Jefferson and Hamilton in the debate over the creation of the first Bank of the United States, an early predecessor of our current Federal Reserve system. Jefferson pointed out that the argument that such a bank would be greatly helpful in management of the American debt and the collection of taxes did not make it necessary, and that it clearly was not necessary given the existence and functioning of the American economy using private banks. Jefferson went on to indicate various other clauses from which the propriety of the Government’s creation of a bank had been claimed to be derived, and clarified the reasons why these clauses did not apply. In answer, Hamilton insisted that the power of incorporation must be held by any proper Government (hence, that creation of a corporate entity such as a bank, need not be questioned on that ground). But his most questionable answer dealt with the meaning of the word “necessary”:

It is certain, that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to. It 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.

I can’t say I can understand this interpretation of the word “necessary” at all. Perhaps it is my mathematics training, but I view “necessary” as a very clear logical relationship between two entities. A is necessary to B only if B cannot exist without A.

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