Necessary and Proper Clause

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Necessary and Proper Clause

The specific powers and duties of the U.S. Congress are enumerated in several places in the Constitution. The most important listing of these powers is in Article I, Section 8, which identifies in 17 paragraphs the many important powers of Congress. The last paragraph grants to Congress the flexibility to create laws or otherwise to act where the Constitution does not give it the explicit authority to act. This clause is known as the Necessary and Proper Clause, although it is not a federal power, in itself.

The Necessary and Proper Clause allows Congress "To make all Laws which shall be necessary and proper for carrying into Execution the [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (Article I, Section 8, Clause 18). It is also sometimes called the "elastic clause." It grants Congress the powers that are implied in the Constitution, but that are not explicitly stated. That is why the powers derived from the Necessary and Proper Clause are referred to as implied powers.

The correct way to interpret the Necessary and Proper Clause was the subject of a debate between Secretary of the Treasury Alexander Hamilton and Secretary of State Thomas Jefferson. Hamilton argued for an expansive interpretation of the clause. His view would have authorized Congress to exercise a broad range of implied powers. On the other hand, Jefferson was concerned about vesting too much power in any one branch of government. He argued that "necessary" was a restrictive adjective meaning essential. Jefferson's interpretation would have strengthened States' Rights. George Washington and James Madison favored Hamilton's more flexible interpretation, and subsequent events helped to foster the growth of a strong central government. Their debate over the Necessary and Proper Clause between Hamilton and Jefferson came to a head in a landmark U.S. Supreme Court case, mcculloch v. maryland, 17 U.S. 316 (1819).

McCulloch v. Maryland was the first case in which the U.S. Supreme Court applied the Necessary and Proper Clause. Some constitutional historians believe that the opinion in McCulloch v. Maryland represents an important act in the ultimate creation of the U.S. federal government. The case involved the question of whether Congress had the power to charter a bank. At first, this question might seem inconsequential, but underlying it are larger questions that go to the foundations of constitutional interpretation. To some extent, they are still debated.

The First Bank of the United States was established in 1791, but it had failed in 1811 due to a lack of support from Congress. Inflation in the years following the War of 1812 compelled President James Madison and Congress to establish a new national bank, which was chartered in 1816. The new bank established branches throughout the states. Many state-chartered banks resented the cautious policies of the Bank of the United States. Their directors sought assistance from their state legislatures to restrict the operations of the Bank of the United States. Accordingly, Maryland imposed a tax on the bank's operations, and when James McCulloch, a cashier of the Baltimore branch of the Bank of the United States, refused to pay the Maryland tax, the issue went to court.

The questions before the U.S. Supreme Court involved whether the state or national government held more power. Central to this issue was the Court's interpretation of the Necessary and Proper Clause. The Court held that the state of Maryland could not undermine an act of Congress. The states were subordinate to the federal government. This ruling established that Congress could use the Necessary and Proper Clause to create a bank even though the Constitution does not explicitly grant that power to Congress. Chief Justice John Marshall's opinion not only endorsed the constitutionality of the bank, but went on to uphold a broad interpretation of the federal government's powers under the Constitution. The case quickly became the legal cornerstone of subsequent expansions of federal power.

Further readings

Newmyer, R. Kent. 2001. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State Univ. Press.

Simon, James F. 2002. What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States. New York: Simon & Schuster.

Wilson, Bradford P., and Ken Masugi, eds. 1998. The Supreme Court and American Constitutionalism. Lanham, Md.: Rowman & Littlefield.

References in classic literature ?
HOW GEORGE, ONCE UPON A TIME, GOT UP EARLY IN THE MORNING.
If I could have settled down," I said to Biddy, plucking up the short grass within reach, much as I had once upon a time pulled my feelings out of my hair and kicked them into the brewery wall: "if I could have settled down and been but half as fond of the forge as I was when I was little, I know it would have been much better for me.
Sire, there was once upon a time a merchant who possessed great wealth, in land and merchandise, as well as in ready money.
I only know that I believe to this hour that he WAS in the Marines once upon a time, without knowing why.
Micawber's affairs, although past their crisis, were very much involved by reason of a certain 'Deed', of which I used to hear a great deal, and which I suppose, now, to have been some former composition with his creditors, though I was so far from being clear about it then, that I am conscious of having confounded it with those demoniacal parchments which are held to have, once upon a time, obtained to a great extent in Germany.
ONCE upon a time he would not have acted thus; but characters differ.
Once upon a time old Lafferty had been caught with a gang that had stolen cows from several of the poor people of the neighborhood and butchered them in an old shanty back of the yards and sold them.
Once upon a time you had a certain amount of talent, and you were of a lively disposition, and your good looks were not to be despised.
Once upon a time Clennam had sat at that table taking no heed of anything but Flora; now the principal heed he took of Flora was to observe, against his will, that she was very fond of porter, that she combined a great deal of sherry with sentiment, and that if she were a little overgrown, it was upon substantial grounds.
said he of the Grove; "by the heaven that is above us I fought Don Quixote and overcame him and made him yield; and he is a man of tall stature, gaunt features, long, lank limbs, with hair turning grey, an aquiline nose rather hooked, and large black drooping moustaches; he does battle under the name of 'The Countenance,' and he has for squire a peasant called Sancho Panza; he presses the loins and rules the reins of a famous steed called Rocinante; and lastly, he has for the mistress of his will a certain Dulcinea del Toboso, once upon a time called Aldonza Lorenzo, just as I call mine Casildea de Vandalia because her name is Casilda and she is of Andalusia.
Your father used to be a very gallant young gentleman, once upon a time," said Mrs.
But once upon a time four Witches leagued together to depose the king and rule the four parts of the kingdom themselves; so when the Ruler, my grandfather, was hunting one day, one Wicked Witch named Mombi stole him and carried him away, keeping him a close prisoner.