This essay first appeared in the May 27, 2021 Epoch Times.
This is the ninth in a series of articles defending the U.S. Constitution against accusations from political “progressives.”
A common accusation, especially from liberal academics and judges, is that many constitutional phrases are vague or meaningless. Or, as stated by former Supreme Court Justice William J. Brennan, they are “luminous and obscure.”
Advocates of an all-powerful central government draw two lessons from their belief that constitutional clauses are vague. The first is that the document doesn’t deserve great respect because it isn’t well drafted. The second is that vagueness justifies a very wide scope for exercise of federal and judicial power.
But the charge of “vagueness” is based on ignorance. The usual reason critics think constitutional phrases are vague or meaningless is that they don’t know that those phrases had specialized meanings in 18th century law. The Constitution is a legal document, and most of the framers and leading ratifiers were top-flight lawyers. In the founding era, even the general public was unusually knowledgeable about law. Hence, many of the Constitution’s ordinary-sounding expressions are packed with legal content. Here are some illustrations:
- “regulate … Commerce,”
- “establish Post Offices,”
- “post Roads,”
- “natural born Citizen,”
- “Corruption of Blood,”
- “Privileges and Immunities,” and
- “necessary and proper.”
Several years ago I wrote a book explaining these and other terms. Behind that book were many individual investigations into the true meaning of constitutional words and phrases. Following is the story of one investigation.
Critics leveling the “vagueness” charge long pointed to the Necessary and Proper Clause as an example. Confused law professors and students scratched their heads over the clause and the most important Supreme Court case on the subject: Chief Justice John Marshall’s famous opinion in McCulloch v. Maryland (1819). Some tagged it “the elastic clause” and claimed it could justify almost anything.
The Necessary and Proper Clause (Article I, Section 8, Clause 18) ends a long list of powers the Constitution grants to Congress. It reads as follows:
“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.”
Critics asked, “What makes a law ‘necessary’ to carry out another power? What does ‘proper’ mean? Moreover, the Constitution grants authority only to agencies and officials; ‘Powers vested … in the Government of the United States’ must be a typo!”
No one seems to have consulted 18th century legal materials about these questions—until I did so, beginning in 2003.
I labored under some disadvantages. I had no internet access to materials I needed. The law school where I was a faculty member had only a small library and was 200 miles from any other law school. The administration was uninterested in my research, even hostile.
But I had one huge advantage that the overwhelming majority of other constitutional scholars did not have: I had practiced law for many years. And although my law practice was in the 20th century rather than in the 18th, I had worked with many of the same kinds of legal documents the Founders employed.
As I examined the Necessary and Proper Clause, a little voice told me, “You’ve seen this kind of wording before! It looks like a phrase in a trust instrument or an agency agreement.”
During my law practice I’d frequently consulted form books. These are huge collections of sample documents lawyers traditionally used to draft legal instruments. “I bet,” I thought, “there were form books in the 18th century. And if there were, I probably can find language in them that looks a lot like ‘necessary and proper.’”
Shortly thereafter I visited Philadelphia. The law librarian at the University of Pennsylvania (Ben Franklin’s favorite school) gave me access to their rare book collection. It turned out that there were plenty of 18th century form books. While thumbing through one of them, I found a form for a “letter of attorney”—a kind of agency agreement we now call a “power of attorney.”
This is what I saw:
Further checking confirmed that letters of attorney and other documents listing powers often finished up the list with an additional grant of “necessary and proper” powers.
I soon found that phrases like “necessary and proper” also were exceptionally common in English and American statutes, trusts, leases, commissions, and charters. Study of 18th century English court cases taught me that in this context the word “necessary” meant “incidental.” I also learned that “necessary and proper” was a translation of an earlier Latin phrase, necessaria et opportuna. My knowledge of Latin (another skill rare among modern academics) confirmed that “necessary” meant “incidental.”
Still more investigation showed that “proper” meant that the person exercising authority was governed by legal duties of trust. Investigation also demonstrated that the Constitution really did grant powers to “the Government of the United States.” Those powers were implicit in clauses imposing obligations on the government, such as the Constitution’s mandate that the federal government protect the states from invasion.
The most significant finding was that “necessary” meant “incidental.” Here’s why:
When a document grants a list of explicit powers, it quietly grants unmentioned powers as well. The unmentioned powers permit the agent to carry out his duties by some methods not listed explicitly in the document. For example, depending on local custom, a document authorizing a person to manage a store might include an unmentioned power to advertise. Unmentioned powers are called “incidental.”
Eighteenth-century law imposed tight constraints on incidental powers. They could be exercised only to carry out listed powers. They had to be of lesser importance (“less worthy”) than listed powers. They had to be methods customary or reasonably required in the circumstances. Someone given authority to manage a business couldn’t claim that he had “incidental power” to use his boss’s money to take over an entirely unrelated business.
Let’s consider a related example from the Constitution. It grants Congress explicit power to “regulate Commerce … among the several States.” Those adopting the Constitution understood “commerce” to be mercantile trade and some associated activities, such as navigation and marine insurance. A federal law requiring standardized labels on goods shipped across state lines would be incidental to the commerce power and therefore authorized by the Necessary and Proper Clause.
By contrast, manufacturing and agriculture are major economic categories distinct from commerce —even though (as the Founders knew) these categories impact each other greatly. Manufacturing and agriculture are not mere incidents of commerce, and a law governing them is not incidental to “regulat[ing] … Commerce.”
Thus, my research taught me that 20th century Supreme Court decisions were wrong when they ruled that the Necessary and Proper Clause gave Congress sweeping power over manufacturing and agriculture.
Once you know the background of the Necessary and Proper Clause, you see that it helps make the Constitution flexible—but as not as flaccid as advocates of unlimited federal control would like it to be. The background also helps you grasp the true meaning of Justice Marshall’s opinion in McCulloch v. Maryland. I’m happy to report that, possibly based in part on my research, Chief Justice Roberts recaptured some of this meaning in a case decided in 2012.
It’s not the Constitution that’s vague or meaningless. On this subject, vagaries exist principally in the minds of the critics.