Necessary and Proper: the Supreme Court aren’t linguists

(Posted by John)

As I watch the beginnings of the Republican presidential primary season unfold, there’s one mantra I’ve heard espoused time and again: our government is too big. With debates about spending and entitlements (not to mention the health care law) as fierce as they’ve been in my lifetime, the question of the appropriate role of government appears to be coming to a head in a serious way.

One clause of the Constitution, in particular, has had massive influence on this debate. That clause is the Necessary and Proper Clause. The Necessary and Proper clause says that Congress has the authority “to make all laws which shall be necessary and proper for carrying into execution [its enumerated powers].” This is basically a mandate for Congress to do the things that it needs to do in order to carry out its explicitly stated powers (e.g. levying taxes). The real debate, though, is how wide a mandate this clause actually grants. And as it turns out, answering that question depends greatly on…you guessed it, linguistics!

What’s the right interpretation?
So what does necessary and proper actually mean? For most people, and particularly those keen on limiting the scope of government, it means that any act Congress wishes to justify under the Necessary and Proper clause must be both necessary and proper. The “and” requires that both conditions be satisfied in order for an act to be authorized.

This makes some sense. If I say “John and Sandeep have written posts for The Diacritics blog,” I mean that both John and Sandeep write posts, not just one or the other of them. This interpretation puts severe limits on what the government can do, too: anything that is not necessary to the execution of some explicitly stated Constitutional power is prohibited. Lots of people believe this to be the correct interpretation. And for those who do, the federal government has a long history of greatly overstepping its legitimate authority.

But lets look a little closer at what this interpretation of the Necessary and Proper clause entails. What, for example, happens when there is more than one possible method by which Congress could undertake to levy taxes? If there are multiple options, any of which would suffice, precisely none of them is necessary. Thus, on the “strict and” interpretation of the Necessary and Proper clause, whenever there are multiple courses of action, Congress may not choose any of them. In my opinion, this is not a desirable outcome. It’s not that Congress is never allowed to pass a law to carry out an explicitly stated power. It’s that Congress may only do so when there is one option and one option alone. If this reading is to be a tenable one, some kind of work still needs to be done.

There’s another legitimate, but lesser-known, interpretation of “[the authority to make] all laws necessary and proper” that doesn’t suffer from the “strict and” defect. To get at it, consider the following: God loves all creatures great and small. Obviously this does not mean “God loves all creatures that are both great and small.” This is a nonsense sentence. It is actually parsed something like: “God loves all creatures great and [all creatures] small,” or “God loves all great creatures and all small creatures.”

Why, then, is it not legitimate to read “all powers necessary and proper” to mean “all powers necessary and all powers proper”? This reading is at least plausible, and it doesn’t suffer from the “strict and” problem of limiting action whenever there’s a choice. This is also the reading that proponents of larger government (perhaps only implicitly) might adopt.

What the Court has said
The Supreme Court has, over the course of our nation’s history, ranged across the spectrum in its reading of the clause. Unfortunately, they generally aren’t the greatest of linguists, despite the fact that John Marshall’s famous McCulloch v. Maryland opinion does recognize the “strict and” problem.  His solution to it is, essentially, reading the word “necessary” out of the Necessary and Proper clause. He adopts a purposive understanding: for Marshall, if the underlying goal of the act was to carry out some explicitly stated power, you were probably good to go. This meant that Congress couldn’t enact laws under the pretext of, say, regulating interstate commerce, but with the actual purpose of, say, prohibiting intrastate child labor. While this is not a linguistically plausible reading, it is perhaps a decent one from a policy standpoint: it avoids the “strict and” limitation on government but does try to set out some limit on federal power.

The Court has treated this reading variously since then. Up until the New Deal Era, the Court was serious about keeping the federal government out of purely intrastate commerce, for example. But as we know, for most of the 20th Century, the Necessary and Proper clause was read as an essentially unlimited federal mandate. The Court ruled that the underlying purpose of a statute no longer mattered, and that any action that, considered in the aggregate, had an affect on interstate commerce was within the scope. Whether you use a Kleenex when you sneeze, taken across the entirety of the population, without doubt affects interstate commerce, and thus could have been regulated.

Only recently has the Court begun to walk this unlimited mandate back. We’ll see how their reading evolves over the course of the next decade, as the debate about government’s size rages on.

In the end, whichever reading you choose is fine by me.  But it will be interesting to see what those in Washington, presidential candidates and Supreme Court alike, have to say on the topic.