BOOK REVIEW - Boston University

BOOK REVIEW

THE NECESSARY AND PROPER CLAUSE AND ITS LEGAL ANTECEDENTS

JOHN F. MANNING

INTRODUCTION ............................................................................................. 1349 I. THE HISTORICAL CLAIMS IN BRIEF ................................................... 1354 A. Agency Law ............................................................................... 1355 B. English Administrative Law....................................................... 1357 C. Corporate Law........................................................................... 1358 II. THE RELEVANCE OF BACKGROUND LEGAL TECHNICALITIES ........... 1360

III. THE LEVEL OF GENERALITY OF THE BORROWED CONSTRUCT(S) ..... 1369 IV. RECOVERING LOST MEANINGS TWO CENTURIES OUT ...................... 1374 CONCLUSION................................................................................................. 1380

INTRODUCTION The Necessary and Proper Clause assigns Congress the power "[t]o 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."1 Chief Justice Marshall's formulation of what "necessary and proper" means has become canonical: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."2 Chief Justice Marshall's reasoning ? upon which the Court now bases its very forgiving rational basis approach to federal legislation3 ? relied on four

Bruce Bromley Professor of Law, Harvard Law School. I am grateful to Bradford Clark, James Fleming, John Harrison, Sanford Levinson, Henry Monaghan, and Amanda Tyler for thoughtful comments. I thank Joel Alicea for expert research assistance. This paper grew out of remarks given at a Boston University School of Law Symposium on October 17, 2011.

1 U.S. CONST. art. I, ? 8, cl. 18. 2 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819). 3 See, e.g., United States v. Comstock, 130 S. Ct. 1949, 1956 (2010) (reading McCulloch to mean that "the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute" when "the statute constitutes a means that is rationally

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related grounds. First, Chief Justice Marshall argued that the ordinary meaning of the clause did not call for necessity in the strict sense: "If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another."4 Second, he engaged in what we would now call intratextualism ? comparing the clause's operative terms with the language of similar clauses that expressly insisted upon more absolute necessity.5 Third, he made a variety of functional arguments, the chief one of which was that a strict view of the Necessary and Proper Clause ? one requiring genuine necessity as the predicate for federal legislation ? would make it impossible to adopt even the most routine governmental measures (such as prescribing criminal punishments).6 Finally, Chief Justice Marshall wrote that since grants of power routinely imply grants of incidental powers needed to carry them out, reading the clause narrowly would transform it from a grant of power into a

related to the implementation of a constitutionally enumerated power"); Sabri v. United States, 541 U.S. 600, 605 (2004) (interpreting McCulloch to establish "means-ends rationality" review under the Necessary and Proper Clause).

4 McCulloch, 17 U.S. at 413. Marshall further explained, To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense ? in that sense which common usage justifies. The word "necessary" is of this description. It has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases.

Id. at 413-14. 5 See id. at 414-15 ("This comment on the word is well illustrated by the passage cited at

the bar, from the 10th section of the 1st article of the constitution. It is, we think, impossible to compare the sentence which prohibits a state from laying `imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws,' with that which authorizes congress `to make all laws which shall be necessary and proper for carrying into execution' the powers of the general government, without feeling a conviction that the convention understood itself to change materially the meaning of the word `necessary,' by prefixing the word `absolutely.'"); Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999) (proposing and defending an integrated approach to reading the constitutional text).

6 See id. at 417-18 ("The baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws.").

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restriction on power ? contrary to the plain intent indicated by its placement among the powers of Congress in Article I, Section 8.7

As lawyerly as John Marshall's opinion in McCulloch is, the gist of The Origins of the Necessary and Proper Clause ("Origins") ? an impressive book recently published by Professors Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman ? is that it is not lawyerly enough.8 Why? Through research conducted independently of one another, the book's four authors arrived at three sources of technical meaning that, they argue, interpreters have largely overlooked.9

Professor Natelson argues that the clause implicitly incorporates principles of agency law that include general requirements of reasonableness, as well as rather more detailed fiduciary obligations of impartiality, good faith, and due care.10 Professors Lawson and Seidman argue that the language of the clause nicely captures similar but not identical requirements of "reasonableness" derived from traditions of English administrative law.11 Finally, though more tentative in his conclusions, Professor Miller reads the clause in light of analogous language found in eighteenth-century corporate charters, concluding that accompanying corporate practice suggests, inter alia, both the need for a "reasonably close connection" between means and ends and a scruple against discriminatory laws.12

The authors of this important book largely take care to avoid definitive conclusions about what use modern interpreters should make of their findings.13 The four authors view their job as being to recover lost understandings, and they leave it to others to figure out exactly what to do with them in contemporary constitutional law.14 This Essay offers tentative thoughts on how a modern interpreter might make use of those lost understandings. Like the four authors, I do not attempt here to provide a conclusive reading of the Necessary and Proper Clause. Rather, I wish to use

7 See id. at 419-20 ("1st. The clause is placed among the powers of Congress, not among the limitations on those powers. 2d. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.").

8 See generally GARY LAWSON, GEOFFREY P. MILLER, ROBERT G. NATELSON & GUY I. SEIDMAN, THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE (2010).

9 In recent years, a great many others have written about the original meaning of the clause as well. See, e.g., Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. PA. J. CONST. L. 183 (2004); J. Randy Beck, The New Jurisprudence of the Necessary and Proper Clause, 2002 U. ILL. L. REV. 581, 587. My focus here is not on the meaning of the Necessary and Proper Clause per se, but rather on the methodological implications of the approach taken by Origins.

10 LAWSON ET AL. supra note 8, at 119. 11 Id. at 141-43. 12 Id. at 175. 13 Id. at 8. 14 Id. at 8-9.

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their important studies to examine the broader question of how one makes sense of the nitty-gritty details of the private or public law backgrounds of important constitutional clauses. For example, if Professor Natelson is correct in asserting that the Necessary and Proper Clause picks up on incidental powers clauses in trust law, should we read the detailed principles of fiduciary duty into that constitutional clause? For me, several considerations frame this inquiry.

First, that question should not depend on whether the authors of Origins can show that a constitutionally sufficient proportion of constitutionmakers subjectively understood the language in the precise and intricate detail of eighteenth-century trust, administrative, or corporate law. Because constitutional lawmaking was spread over so many distinct multimember institutions, one could never make that sort of showing.15 So if we assume that lawmakers choose their words on the sensible assumption that interpreters will decode them according to established conventions prevailing at the time, it makes sense to read technical terms technically, whether or not ratifiers subjectively knew the full contents of a "term of art."

Second, this context presents an issue slightly different from the term-of-art question. In particular, it invites consideration of what interpreters should do when lawmakers borrow a legal construct from another context. Though Professor Natelson comes closest,16 none of the four authors asserts that either "necessary," "proper," or "necessary and proper" was a term of art with an established meaning familiar to anyone schooled in the fine points of eighteenth century legalese.17 Rather, these words reflected a legal construct ? the incidental powers clause18 ? that was used, we are told, in various private law contexts. To borrow a word or phrase with established meaning should carry with it that meaning. Yet there is no reason to think that borrowing a construct from a substantive area of law should bring all obligations of that particular area of law to a new and very different one, especially when the same type of clause is common to multiple areas of law. The law of trusts or corporate charters deals with matters very different from those that pertain to a

15 See, e.g., John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 COLUM. L. REV. 1648, 1666 (2001) (arguing that the vast and decentralized character of the constitutionmaking process makes it difficult, if not impossible, for interpreters to determine how a constitutionally sufficient proportion of the ratifiers actually understood the Constitution's particulars).

16 See infra text accompanying notes 32-33. 17 See John C. Harrison, Enumerated Federal Power and the Necessary and Proper Clause, 78 U. CHI. L. REV. 1101, 1117 (2011) (reviewing LAWSON ET AL., supra note 8) (observing that the authors did not consider "necessary and proper" a term of art). 18 Professor Natelson refers to the relevant constructs as "further-powers clauses." LAWSON ET AL., supra note 8, at 72. Professor Miller refers to them as "scope clauses." Id. at 150. Since both acknowledge that these clauses grant incidental powers within the law of agency, I will refer to them collectively as "incidental powers clauses" in order to simplify the exposition.

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constitution designed for a complex nation of millions.19 Would a reasonable observer really think that borrowing a familiar legal construct used in trust law or corporate law would necessarily carry the substantive trust law or corporate law with it? At most, such an observer might attribute to the Necessary and Proper Clause whatever least common denominator incidental power clauses share across all such contexts.

Third, when authors purport to recover lost understandings, a modern interpreter must consider the implications of the fact that these understandings were putatively lost. This intricate book is a testament to the complexity of the question of what the Necessary and Proper Clause means. Surely one cannot read the book without concluding that reasonable people ? including reasonable eighteenth-century Americans ? could differ about how to read the phrase "necessary and proper." Madison famously wrote, and the founders apparently widely believed, that the Constitution would come out unfinished and that its meaning would become settled only through the passage of time and the accretion of practical constructions by the branches charged with implementing it.20 Because Origins presents hard judgment calls about how much, if any, of the highly complex background doctrine one should ascribe to the clause, I think it especially valuable to pay attention to the settled meaning on which our society came to rest. Had early Americans read the Necessary and Proper Clause to impose on Congress the detailed obligations of a trust administrator or a corporate board, that fact itself might have resolving significance.21 Yet the authors offer very little evidence that early Americans did so. And while it is beyond this Essay's scope to reconstruct the history of the clause's interpretation, it is worth noting that foundational cases such as McCulloch seem to have treated the clause as an incidental powers clause but made no mention of its picking up the detailed substantive constraints of fiduciary law, administrative law, or corporate law.22 After almost two centuries, the burden of persuasion on those who would displace McCulloch strikes me as quite high.

This Essay proceeds in four parts. First, it briefly reviews the main claims of the book. Second, it explains why we might care about the private law backdrop identified by the authors even if we do not have any proof that it influenced a constitutionally sufficient majority of the ratifiers. Third, it

19 See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (emphasizing the unique challenges of constitutional design).

20 See infra text accompanying notes 142-147 (describing Madison's position and the role of early governmental practice in resolving constitutional ambiguities).

21 In determining the implications of such a finding for constitutional adjudication, one would still have to grapple with questions of stare decisis. Compare, e.g., Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 748-67 (1988) (defending a strong vision of constitutional stare decisis), with Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23, 26-28 (1994) (arguing that stare decisis contradicts the supremacy of the constitutional text).

22 See infra text accompanying notes 156-161.

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