Enumerated Federal Power and the Necessary and Proper Clause
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. Part I of this Review is about the Necessary and Proper Clause, briefly reviewing its central role in contemporary federal law and the recurring questions that arise in applying it. Part II recounts the book's main arguments. Part III presents my views about the soundness and implications of the inferences that the authors draw from their evidence. Some of those inferences are more secure than others, and those that are secure make an important contribution to understanding the clause. Part IV discusses the broader questions of constitutional substance and interpretation that must be resolved in order to determine whether claims about the original textual meaning, or textual meaning in any sense, matter for American constitutional practice.