Reprinted from The Tenth Amendment Center
Necessary as "convenient"
How to build the biggest government in history
The "Necessary and Proper" clause at the end of Article I, Section 8 is one of the most misused and abused parts of the Constitution. This has played a huge part in giving us the largest government in history. Here's the short version of where it started and how it got this way.
1. It was included in the constitution to reaffirm how the document was already written.
2. It was sold to the ratifiers as granting NO additional power to the federal government. Necessary meant....well...necessary. Edmund Pendleton described the federalist position best:the plain language of the clause is to give them power to pass laws in order to give effect to the delegated powers. In Federalist 33, even Hamilton seemed to agree.
3. Less than 3 years after ratification, Alexander Hamilton suddenly changed his tune, and now described NECESSARY as actually meaning something else. Because he wanted to create the first National Bank - and it wasn't really NECESSARY to any of the other delegated powers. Hamilton put it this way: Necessary often means no more than needful, requisite, incidental, useful, or conducive to.
4. President Washington ignored James Madison, Thomas Jefferson, Edmund Randolph - and others - and sided with Hamilton on this "conducive to" view of the word "necessary," when he signed the Bank Bill into law in 1791.
5. Some years later, Chief Justice John Marshall decided to take this new definition of necessary and use it in McCulloch v Maryland. He wrote: [Necessary] frequently imports no more than that one thing is convenient, or useful, or essential to another. So now, instead of necessary meaning necessary. Necessary meant "convenient." That definition, unfortunately, is the one taught to virtually every law student - and is highlighted as the only view in almost all casebooks on constitutional law. Hamilton said it. Washington signed it. Marshall agreed. End of story. And today, the federal government claims the power to do whatever it thinks is necessary/convenient - on virtually any issue under the sun.
But here at TAC, the story continues. Ignored in almost every casebook - and by virtually every politician and government school - is James Madison and Thomas Jefferson.
1. Arguing against Hamilton's Bank Bill in 1791, James Madison warned: "Whatever meaning this clause may have, none can be admitted that would give an unlimited discretion to Congress" If “convenient” to congress doesn’t count as “unlimited discretion” Nothing does.
2. Madison further described the clause:Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end and incident to the nature of the specified powers [emphasis in original].
3. Madison also rejected the view of NECESSARY meaning CONVENIENT the proposed bank could not even be called necessary to the government; at most it could be but convenient.
4. Thomas Jefferson hammered this home as well: the Constitution allows only the means which are "necessary," not those which are merely "convenient" for effecting the enumerated powers.
5. Jefferson also explained that necessary means - surprise, surprise - necessary the Constitution restrained them to the necessary means, that is to say, to those means without which the grant of power would be nugatory.