Understanding the Necessary and Proper Clause: Constitutional Foundations Explained

What exactly does the Constitution's Necessary and Proper Clause allow Congress to do? Dr. Beienburg cuts through centuries of debate to reveal the true nature of this misunderstood provision.

The podcast begins by addressing a common misconception—the name "Elastic Clause" originated not from the Constitution's defenders but from its critics seeking to portray it as dangerously expansive. Dr. Beinberg walks us through Article 1, Section 8's actual language, explaining that this provision codifies a fundamental legal principle: when authority is granted, the means to execute that authority come with it.

We dive deep into the historical debates that shaped our understanding of this clause. The clash between Hamilton and Jefferson over the First Bank of the United States reveals how "necessary" could be interpreted narrowly and broadly. Hamilton advocated for anything "remotely convenient" to executing powers, while Jefferson insisted on an "absolutely necessary" standard. Madison's evolving position—initially opposing the bank but later supporting it based on practical experience—demonstrates how constitutional interpretation responds to real-world governance challenges.

The episode culminates with a crucial distinction: the Necessary and Proper Clause is not a blank check for federal authority. Recent Supreme Court opinions have affirmed that our Constitution has no "freestanding solve-a-problem clause". Understanding these boundaries isn't just academic—it fundamentally shapes what our government can and cannot do.

Subscribe now to continue our journey through the Constitution's most influential provisions and the debates that have defined American governance for over two centuries.

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Chapters

• 1:34 Introduction to Necessary and Proper Clause
• 2:10 The True Purpose of the Clause
• 3:55 Hamilton vs. Critics Debate
• 7:13 The Bank Controversy Explained
• 9:49 Setting Constitutional Boundaries
• 11:01 Closing Thoughts and Takeaways

Transcript

Speaker 1: 0:48

Welcome to Civics in a Year. Today we are talking about the Necessary and Proper Clause of Article 1, also known as the Elastic Clause, and we have with us Dr Beinberg. So, dr Beinberg, can you tell us what is the Elastic Clause, slash Necessary and Proper Clause of Article 1?

Speaker 2: 1:24

Yeah, and I will be prickly and say that necessary and proper clause is the proper way to understand it, insofar as elastic clause and sweeping clause terms like that are the ones that are effectively generated by the critics of the Constitution in a way to that is both it's unfaithful to what it actually does, because they're trying to sort of exaggerate the scope of it to say this thing is terrifying and scary, and so they swap out new words which the defenders of the Constitution and the Federalist Papers I think are much more accurate and sort of convenient. So necessary and proper does have as a term, does still have a problem, which is to say that it's necessary and proper to what. So it's always a good idea when we're talking about the Constitution to actually go to the text of the Constitution. So Article 1, section 8, the last provision in there, says 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. So the necessary and proper for what? To execute the powers that were just listed and other powers vested by this Constitution. It's not a, simply there's a necessary and proper thing that we think is important or we think is useful or we think is necessary in general, that authority is with the state governments, who have the authority to act on behalf of the health, welfare, safety and morals of their people. So the necessary and proper clause is, in effect, authority to execute what has already been granted.

Speaker 2: 2:52

And, as they argue, this is one of the parts of the Constitution that arguably isn't even necessary, in the sense that it's an old doctrine of English common law that if I give you the authority to do something, I give you the authority to sort of meaningfully and faithfully execute that. So one of the federal's papers uses an example and says I think it's one of the federal's papers, if not, it's one of their founding writings says, effectively, if I give you the authority, if I say you can clear wood from my forest to go burn it or build a house or whatever, implicitly I'm also giving you the authority to bring a cart in to haul the wood out, right, the stuff that you need to do to execute that. If you are given the sort of fundamental grant, you have the implementing authority. So it's effectively just stating what's already a principle in sort of English legal reasoning and immediately, immediately, the skeptics of the Constitution, particularly Brutus, are trying very aggressively to say no, no, no, no, no. This won't be used as an execution of the laws, this is going to be used as a freestanding power. So they say the Constitution, if we read it correctly, actually just says feds can do whatever they want that they think is necessary and proper. So Brutus is, he says yeah, it technically says the other stuff, but very quickly, everybody is just going to fall away from that and say necessary property to do whatever we want.

Speaker 2: 4:12

And the defenders of the Constitution are baffled because they're most like Hamilton is a trained lawyer, he understands this. This is just a basic principle of law that if you say that you can do the thing, you can do the things you need to do to execute it. So, as he says in Federalist no 33, it is expressly to execute these powers that the sweeping clause, as it has been I love this phrasing effectively called it's like this crazy term that they're throwing at it. But it is expressly to execute these powers that it authorizes the national legislature to pass necessary and proper laws. He says if there's a problem it's in the scope of those powers themselves, not in the necessary, proper class. Maybe you don't think Congress should have the interstate commerce power, maybe you don't think Congress should have this or that power. But he says that's what really the objection is to. And then he recognizes, he says there could be and there could be. So he spots Brutus' argument in a sense and says there could be bad faith sort of implementations of this right. It says if the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers meaning with this necessary and proper clause the people must appeal to the standard they have formed they can point to the Constitution and say no, this violates its logic.

Speaker 2: 5:24

And he says, supposed by some forced construction, some sort of tortured legal reasoning, we can say that it's necessary and proper to regulate inheritance in order to get at one of the other powers. He says that's obviously a pretext, you can't do that. And then he says at that point that the federal legislature should effectively be sort of resisted in the sense of not of shooting back at them or something, but use the tools of the Constitution to push back on that. So Hamilton says quite clearly in the Federalist and Madison says similar stuff in one of the other federalist papers. This is effectively an execution provision. It's not a freestanding power.

Speaker 2: 6:00

Now, with that being said, necessary and proper, the end proper is important and is easy to sort of lose. Proper is important and is easy to sort of lose. As is necessary. What does necessary mean? For folks that are taking AP US history or early American history or government, one of the very first fights is does the Constitution give the authority to build a bank, a bank of the United States? And Jefferson wants to argue that it doesn't have the authority. Because Jefferson says necessary here means basically unless the power could not be exercised in any other meaningful way. So Hamilton, obviously Hamilton recognizes there's no freestanding power to build a bank and so he's making.

Speaker 2: 6:45

But he, washington, asks Hamilton and Randolph and Jefferson, and then sort of Madison under the hood because Madison is in Congress to make their arguments. In fact he has Madison actually draft a veto message saying this bank is unconstitutional, it exceeds the powers of the government. But he says all right, everybody make your case. Jefferson says it's unconstitutional because we could basically do money, we could pay our debts, we could do these things without a bank. And Hamilton wants to say no, anything. And Hamilton sort of cheats in the other way. So Jefferson sort of cheats and makes, wants to add the word absolutely to it. Unless it's absolutely necessary to execute this, the government can't do it. Hamilton wants to substitute and say it's just kind of remotely convenient to the exercise of the powers. So he's sort of downplaying the tightness between the logic of the implementing power that he sort of promised in the Federalist. So he's softening that.

Speaker 2: 7:42

Madison is kind of splitting the difference. He sides with Jefferson ultimately but he says there has to be effectively a quite logical, quite. The language is old-timey so the words don't quite track today, but it's effectively there has to be sort of a good faith, pretty tight connection to what you're doing here. That's what the standard ought to be. And it's interesting because Madison actually changes his mind on whether a bank is constitutional, because he says during the War of 1812, actually it turns out as an empirical matter. We have a really hard time executing some of these powers without this bank. So Madison says basically, without changing my sort of understanding of how the interpretation ought to be like, the facts on the ground have shown me that this thing is in fact necessary.

Speaker 2: 8:28

John Marshall in, I know that there will be a separate podcast session on McCulloch v Maryland, so I'll do this one briefly as well. But Marshall sort of has language in that opinion that can either sound very Madisonian or very Hamiltonian, and so the Madisonians all get mad that he's got some sort of sweeping vocabulary that makes it sound much more like Hamilton in some ways. And then in other places he says no, it's got to be sort of pretty reasonably adapted, has to be sort of closely connected. So what sort of falls within necessary and proper? There is obviously going to be wiggle room, but at a conceptual level it is not a freestanding power. Something has to be sort of meaningfully connected to the enumerated powers.

Speaker 2: 9:14

Now there's going to be hard cases. There are always going to be hard cases when you're trying to draw lines. But it's worth noting what it is not. And it is not a freestanding power of the United States federal government to do whatever it thinks is prudent or solves a problem. There's a line in the Sibelius case from one of the dissents that there is no freestanding solve-a-problem clause of the enumerated powers. It's a list of powers. So at the margins clause of the enumerated powers it's a list of powers, so at the margins. The necessary and proper clause is going to be divisive, but it is not at least as the constitutional architects designed it, defended it and sold it to the American people a sort of we see a problem, we can fix it. That's still supposed to be at the state level.

Speaker 1: 9:55

Professor Beinberg, thank you, because I think that sometimes we try so hard to define something, but telling us what it's not is sometimes even more helpful. So thank you for going through the necessary and proper clause I'm going to not call it the elastic clause anymore and giving us some more information about that. We appreciate it.