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A Colonial Pamphlet Helps Show Why the Constitution’s Necessary and Proper Clause Granted No Power

061712  RGN Thirlmere

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As I have noted before (for example, here and here) pamphlets written in support of the colonial cause during the years 1763-1774 help us greatly in understanding the language of the Constitution. Unfortunately, most constitutional writers regularly overlook those pamphlets—one reason mistakes of constitutional interpretation are so common.

Most of the influential colonial pamphlets were written by distinguished lawyers. Among the authors were John Adams, Thomas Jefferson, Daniel Dulany, James Wilson, Alexander Hamilton, and John Dickinson. In these works, the authors explained the American vision of the rights of citizens and the prerogatives of the colonies within the British Empire.

The British ministry rejected that vision, which helped bring on the Revolutionary War. But after Independence Americans got the opportunity to write their own Constitution. They implanted much of the pamphleteers’ vision into our Basic Law—not surprisingly, since at least three of the Framers had been pamphleteers themselves (Wilson, Hamilton, Dickinson).

In addition to helping us understand the Founders’ view of government, the colonial pamphlets help us understand the meaning of particular words and phrases. They also illustrate the sources the Founders relied on for their ideas: the Bible, the Greco-Roman classics, English constitutional history, the history of the Netherlands, and so forth.

In an earlier post, I discussed the Town of Boston’s 1772-73 pamphlet. Another example is a brilliant 1774 production by a prodigy named Josiah Quincy, Jr. (also known as Josiah Quincy II). It was called Observations on the Act of Parliament Commonly Called the Boston Port-Bill; with Thoughts on Civil Society and Standing Armies.

The pamphlet is a miracle of classical and historical learning. When Quincy composed it, he was only 30 years old, but was already one of Massachusetts’ top attorneys. Quincy was a leader of the colonial cause, and had served as John Adams’ co-counsel in the celebrated “Boston Massacre” case. His essay’s principal purposes are to show that the parliamentary act shutting up the port of Boston was unjust, and that peacetime standing armies are inimical to free government.

I encourage readers to examine the pamphlet themselves. If you have studied the Constitution, you will find much that foreshadows it.

One example is the precise Second Amendment phrase “well regulated militia” (page 39). Another is the word “commerce,” used specifically as a synonym for “trade” (page 22), and not with the expansive meanings claimed by apologists for the modern monster state.

Quincy assails the Boston Port Act’s invalidation of existing contracts as a “post facto” law (page 11), illustrating the contemporaneous opinion that ex post facto laws could be civil as well as criminal in nature (an interpretation abandoned during the Constitution’s ratification fight). Another passage foreshadows the Constitution’s guarantee of due process of law (page 14). Still another implies that in using the phrase “natural born” the understanding is the English use of that phrase, not the international law usage (page 69). Yet another passage reflects the underlying constitutional value of “sympathy” between government and governed (page 28).

In addition, the essay contains numerous adages and warnings on government, such as the cost of employing too many public officials (page 62).

Perhaps the most interesting part of the pamphlet illustrates why, as has been documented extensively, the Founders understood the Necessary and Proper Clause (Article I, Section 8, Clause 18) to be a mere recital, and not an affirmative grant of power to Congress. At that point, Quincy was discussing the Boston Port Bill’s requirement that the Town of Boston reimburse the East Indian Company for the tea tossed into the harbor. Quincy pointed out (page 18-19) that it would be illegal for Boston to pay the Company, because another Parliamentary statute limited Town expenses to “maintenance and support of the ministry, schools, the poor, and defraying other necessary Town Charges.”

“Will any now say,” Quincy wrote, “that the monies appointed to be paid to the East-India [Company], come within the words of ‘necessary town charges?’ When did the town contract the debt, or how are they subject to it?”

Today we might read “necessary town charges” as including such a payment, but that was not what it meant at the time. When a phrase like “and other necessary charges” appeared in a legal document at the end of in a list of enumerated powers, it served only to clarify that power-wielder had authority incidental to the powers already listed—but not separate and additional authority. Under this statute, in other words, the town of Boston could not make payments unrelated to the listed purposes.

This is precisely the role the Necessary and Proper Clause plays in Article I, Section 8.

Had he lived, Quincy undoubtedly would played an illustrious part in our nation’s founding. Unfortunately, he died of tuberculosus about a year after publishing this great tour de force—only 31 years old. His son was to become president of Harvard University, and his second cousin, John Quincy Adams, President of the United States.

Rob Natelson