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Copyright (c) 2004 Case Western Reserve Law Review
Case Western Reserve University

ARTICLE: The Agency Law Origins of the Necessary and Proper Clause

Winter, 2004

55 Case W. Res. 243


Robert G. Natelson +


I. Introduction

Commentators continue to struggle with the meaning of the Constitution's Necessary and Proper Clause. Some have given up, and pronounced the Clause meaningless. Professor Mark A. Graber writes that, "The necessary and proper clause satisfies historical tests for stupidity: The framers did not seriously consider its meaning, and prominent defenders of the constitution subsequently confessed that the provision was unnecessary and unintelligible." 2 Among the unanswered questions about the Clause are how "necessary" a law must be to the exercise of an enumerated power; 3 what the meaning of "proper" is; 4 and whether the provision is an affirmative grant of power, a limitation on power, or a mere rule of construction. 5

The doubts are understandable because, read in isolation, the Clause is not. Although some uncertainties can be resolved by textual analysis, 6 others defy it. For example, Chief Justice John Marshall's classic exposition of the Clause in McCulloch v. Maryland 7 seems open to challenge because its definition of "necessary" is so at odds with common usage. 8 For this reason, some have attempted to reconstruct the historical meaning of the Clause, but their interpretations seem incomplete. 9 Others find the historical case hopeless. 10

In this Article, I respectfully submit that the meaning of the Clause has seemed unclear because commentators, especially modern ones, have not been looking in the right place. The lawyers who drafted the Necessary and Proper Clause took its language directly out of contemporary agency law and usage. ...
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