Is the Necessary and Proper Clause either Necessary or Proper?
By: Dr. Robert R. Owens
I want to begin by saying that I believe the Preamble to the Declaration of Independence and the Constitution, with the Bill of Rights included, comprise the most enlightened, ennobling, and beneficial documents ever penned by the hand of man. I also believe that the Constitution afforded the United States the greatest level of freedom and opportunity ever experienced by humanity. This freedom and opportunity in turn released the talents and abilities of the American people to build the greatest nation ever to exist, rising from thirteen states exhausted and impoverished from years of war into a prosperous and powerful nation which by the end of the twentieth century stood upon the world stage as the uncontested sole superpower.
Simplicity is the essence of genius while over-simplification is the essence of fraud. In a picture perfect example of the truism “The victors write history” what we have been taught concerning the writing and ratification of the Constitution is actually a politically slanted version of the truth. This highly patrician account is also an example of over-simplification.
We are taught that the Articles of Confederation were an abject failure because they were too weak. Shay’s Rebellion scared the venerable leaders who had led and won the Revolution. George Washington and Co. came back from retirement to once again save the nation writing an “almost” divinely inspired document. There was only token dissent to the immediate acceptance of this tablet from the mount by some shadowy unknown people collectively called the “Anti-Federalists.” However after some well-written articles by future leaders called the Federalists, We the People overwhelmingly voted for ratification and the Constitution immediately ushered in the blessings of liberty and opportunity for all rescuing the United States from anarchy and stagnation. Amen.
This is a thumb-nail sketch of what our thumb-nail sketch type history education once delivered as gospel in American public schools. Today, those lucky enough to live in a school district that still includes American History are instead treated to the progressive’s litany of American crimes and debauchery. However, as our constitutionally limited government exceeds all previous limits, is either of these offerings good enough? Americans from all walks of life watch in stunned disbelief as the Federal Government on steroids swallows the economy, health care, the financial system, major manufacturing, the insurance industry, and anything else that doesn’t move fast enough to get out of the way. Can the States themselves be far behind?
How did this come about? How did a government born in the shackles provided by a written constitution designed to limit its power swell into the all-powerful OZ?
Quite simply it was through the deception of the Progressives evolving our Constitution from a rock-solid framework limited to what it actually said to a living document that is constantly being re-interpreted. Thus without amendment, without debate, without a vote our leaders have nudged us from land of liberty to the centrally-planned surveillance state which today sends the IRS after their enemies, leaves our borders open, our opportunities closed, and our sons and daughters manning hundreds of garrisons around the world.
One of the key tools in this century long quest to transform America has been the use of the so-called elastic clauses in the Constitution. One major clause used to accomplish this is found in Article I, Section 8, Clause 18 which states, “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 this Constitution in the Government of the United States, or in any Department or Officer thereof.”
There are several ways to look at this clause and its meaning. First we need to look at what is called “Original Intent,” or what those who wrote the clause meant. Then we will look at what those who ratified the Constitution thought it meant. Finally we will look at how the Progressives interpret and re-interpret their favorite clause.
The necessary and proper clause was added to the Constitution by the Committee of Detail with no debate. Nor was it the subject of any debate during the remainder of the Convention. The reason why this clause was neither attacked nor defended during the Convention becomes clear from the statements of the Framers during the ratification process. James Wilson, one of the most eloquent defenders of the Constitution, a signer of the Constitution, and one of the first justices of the Supreme Court, said that this clause gave the federal government no more or other powers than those already enumerated in Section 8 of Article I and that “It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.” The Framers felt as if the clause was merely saying that which had been delegated could be used.
During the ratification debates this clause was a hot topic. Brutus proclaimed that through the Necessary and Proper Clause “This government is to possess absolute and uncontrollable power, legislative and judicial, with respect to every object to which it extends…” the debate raged back and forth between the Federalists and the Anti-Federalists in newspapers, pamphlets, and on the floor of the ratification conventions. Eventually the Federalists won the day and the Constitution was ratified. The result? The interpretation of this clause that was generally accepted by the ratification conventions was that it added no new or expandable powers to the federal government.
Since the New Deal era, Progressives have argued that the Necessary and Proper Clause expands the powers of the federal government to any it deems necessary and proper. In other words the federal government has all the power necessary to do whatever they want about anything they want. The executive department has been using this clause to grab power since Hamilton used it to found the First bank of the United States in 1791. The Supreme Court has been stretching this clause since they ruled in Mcculloch v. Maryland, 17 U.S. 316 (1819) to give themselves the power of judicial review. This expansionist interpretation has been upheld by the Supreme Court on numerous occasions and is today the accepted opinion amongst the political-media-corporate establishment.
It is my belief that if we have a better understanding of where we came from and how we got here that we would have a better understanding of where we are. If we understand where we are perhaps we will see the way to get back to where we wanted to go when we started: back to a limited government of the people, by the people and for the people.
Knowing how a simple clause meant to say that what had been delegated could be used has evolved into near totalitarian power shows us that just as the present use of the Necessary and Proper Clause is neither necessary nor proper. And thus a government of the people, for the people and by the people has been hijacked and become something else.
No matter what we have been taught, no matter even what the reality was the reality is that the Constitution replaced the Articles of Confederation as the supreme law of the land. The announced purpose of the Constitution’s writing and adoption was to provide a limited government which respected both the rights of the States and the people. Since this was the stated and accepted purpose of the Constitution after two centuries and several decades can We the People deny any longer that it has failed?
Failing and failure are two different things. Everyone who has ever succeeded has failed. It is falling forward from that failure which ultimately brings success. If the Constitution has failed what do we do now? Where’s the reset button.
Dr. Owens teaches History, Political Science, and Religion for Southside Virginia Community College. He is the author of the History of the Future @ http://drrobertowens.com © 2011 Robert R. Owens firstname.lastname@example.org Follow Dr. Robert Owens on Facebook or Twitter @ Drrobertowens