Article 1, Section 8, Clause 1 — Historical Background On Necessary And Proper Clause

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Article I, Section 8, Clause 18:

[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.

Under the Articles of Confederation, the Federal Government’s powers were limited to those “expressly delegated to the United States.” [1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn1art1 " Articles of Confederation of 1781, art. II ( “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” ). For more information on the history, origins, and original meaning of the Necessary and Proper Clause, see generally Gary Lawson et al., The Origins of the Necessary and Proper Clause 35–119 (2010); John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045, 1086–1106 (2014); Kurt T. Lash, “Resolution VI” : The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8, 87 Notre Dame L. Rev. 2123, 2134–41 (2012); Robert G. Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243, 267–73 (2004); Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 188–220 (2003); Gary Lawson & Patricia B. Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267, 297–326 (1993). ") Whether to maintain this limitation or to provide broader or implied powers to the National Government was a matter of debate at the Constitutional Convention. Under the South Carolina Plan of government presented by Charles Pinckney, the states would have retained all powers “not expressly delegated.” [2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn2art1 " 2 The Records of the Federal Convention of 1787, at 135 (Max Farrand ed., 1911) [hereinafter Farrand’s Records]. Pinckney’s plan was presented to the Convention on May 29, 1787, but it was neither debated nor voted on. See 1 Farrand’s Records, supra note 2, at 16. ") Similarly, the New Jersey Plan would have slightly expanded federal power by amending the Articles of Confederation to add new enumerated federal powers.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn3art1 " 2 Id. at 242–43. ") At the other extreme, Alexander Hamilton’s plan would have empowered the national legislature to pass “all laws whatsoever,” subject only to the veto of the executive.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn4art1 " Id. at 291. ")

The Virginia Plan of government, which ultimately became the blueprint for the Constitution, took a different approach. As presented to the Convention by Edmund Randolph, Resolution VI of the Virginia Plan would have granted Congress power to “legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” [5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn5art1 " 1 Id. at 21. ") Several delegates, including Pinckney and John Rutledge, objected to the vagueness of the word “incompetent,” [6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn6art1 " Id. at 53; 2 id. at 17. ") but a motion to replace this general statement with a specific enumeration of powers failed by an equally divided vote.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn7art1 " See 2 id. at 17 (motion by John Rutledge for a “specification of . . . powers” failed 5-5). The Convention also rejected an alternative formulation of Resolution VI that would have empowered Congress to legislate “in all cases [which may concern the common interest of the Union].” Id. at 25–26 (brackets in original). ") On July 17, 1787, the Convention approved Resolution VI following an amendment by Gunning Bedford, resolving that Congress should have power to legislate “in all cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.” [8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn8art1 " Id. at 26–27 (Bedford amendment); id. at 131–32 (final form as referred to the Committee of Detail). ")

On July 26, 1787, the Convention referred the amended Resolution VI (along with the other resolutions approved by the Convention) to the Committee of Detail, which developed the first draft of the Constitution.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn9art1 " Id. at 128. ") Ultimately, the Committee replaced Resolution VI’s general statement of national legislative power with a list of enumerated powers (essentially those in the Articles of Confederation, plus a number of additional powers), followed by the Necessary and Proper Clause.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn10art1 " Compare Articles of Confederation of 1781, art. IX with 2 Farrand’s Records, supra note 2, at 181–82 (August 6, 1787 draft of the Constitution); see also Mikhail, supra note 1, at 1104–05 (highlighting the enumerated powers derived from the Articles of Confederation, versus those added by the Committee of Detail). ") Because the Committee of Detail did not keep any record of its deliberations, it is a matter of speculation why it made this change.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn11art1 " One view is that the Committee of Detail effectively rejected Resolution VI by adopting an enumeration of powers and the Necessary and Proper Clause. See Carter v. Carter Coal Co., 298 U.S. 238, 292 (1936) ( “The convention, however, declined to confer upon Congress power in such general terms [as Resolution VI].” ); Barnett, supra note 1, at 185 (characterizing the enumeration of powers as a “reject[ion]” of Resolution VI). Other scholars see the enumeration and the Necessary and Proper Clause as the Committee of Detail’s attempt to “enact” Resolution VI. See Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 11 (2010). Another view is that Resolution VI was merely a “placeholder” provision: the Committee of Detail’s enumeration served to identify the specific areas where the states were separately incompetent or where the general interests of the Union required federal authority. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 177–78 (1997); accord Clinton Rossiter, 1787: The Grand Convention 208–09 (1966) (describing the Committee of Detail’s enumeration of powers as a “conver[sion]” of “the general resolution of law-making authority” approved by the Convention into a specific list of powers). ")

Although there is no record of the Committee’s motivations, it is possible to trace the drafting history of the Necessary and Proper Clause based on the Committee’s papers. In his markup of Randolph’s draft Constitution, Rutledge added, at the end of the list of enumerated powers, that Congress shall have a “right to make all Laws necessary to carry the foregoing Powers into Execut[ion].” [12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn12art1 " 2 Farrand’s Records, supra note 2, at 144. At the same time, Rutledge suggested that the Committee “Insert the II Article,” apparently referencing the Articles of Confederation’s statement that all powers not “expressly delegated” are retained by the states. 2 Farrand’s Records, supra note 2, at 144. ") In a subsequent draft, James Wilson expanded Rutledge’s language to grant Congress power “to make all Laws that shall be necessary and proper for carrying into (full and complete) 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.” [13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn13art1 " 2 Farrand’s Records, supra note 2, at 168. The language in parentheses is crossed out in the original document. 2 Farrand’s Records, supra note 2, at 163 n.17. ")

On August 6, 1787, the Committee of Detail reported its draft Constitution to the Convention, which contained the Necessary and Proper Clause in its final form.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn14art1 " 2 Farrand’s Records, supra note 2, at 182. There are only stylistic differences (e.g., differences in capitalization) between the August 6, 1787 version and the version in the ratified Constitution. Compare 2 Farrand’s Records, supra note 2, at 182 with U.S. Const. art. I, § 8, cl. 18. ") The Convention unanimously approved the Necessary and Proper Clause on August 20, 1787.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn15art1 " 2 Farrand’s Records, supra note 2, at 345. ") There was no further substantial debate on the Clause during the Convention itself, although the three members of the Convention who declined to sign the Constitution—Randolph, George Mason, and Elbridge Gerry—all cited the breadth of the Necessary and Proper Clause among their objections to the document.[16](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn16art1 " 2 Farrand’s Records, supra note 2, at 563 (Randolph); 2 Farrand’s Records, supra note 2, at 633 (Gerry); 2 Farrand’s Records, supra note 2, at 640 (Mason). ")

Following the signing of the Constitution on September 17, 1787,[17](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn17art1 " 2 Farrand’s Records, supra note 2, at 648–49. ") the Constitution was submitted to the states for ratification pursuant to Article VII.[18](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn18art1 " See . ") During the ratification debates, opponents of the Constitution, such as Patrick Henry, strongly criticized the Necessary and Proper Clause.[19](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-1/historical-background-on-necessary-and-proper-clause#fn19art1 " See 3 The Debates in