One of the puzzling trends in our national culture is the shift from a country committed to the rights of sovereign individuals and the authority of sovereign states to a country acquiescing to ever-increasing authority and power by a central government in Washington.
What makes this even more puzzling is that our Constitution was intentionally structured to prevent such a shift from happening. The original signatories of the Constitution fought a war to free themselves from the clutches of a strong central government in London and had every intention of preventing the rise of another strong central government here in America.
One of the clues to this puzzle can be found in the Necessary and Proper Clause of the Constitution, which is described at the end of Article I, Section 8 after the section enumerates the powers of Congress. The clause grants Congress the 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.”
That is a powerful clause in our Constitution. The insertion of this language was considered necessary to address one of the failings of the Articles of Confederation, America’s original constitution that preceded our current one. The Founders judged that the Articles of Confederation failed because the pact did not grant enough power and authority to the central government. It was unclear in the Articles of Confederation whether the Federal Government had been granted sufficient authority to effectively execute its enumerated powers.
For example, it would make no sense to grant the Federal Government the power to raise and maintain an army if this grant did not also imply that the government had the authority to do everything necessary and proper to execute it, including raising funds for an army, appointing officers, procuring military equipment, establishing military facilities, and acquiring every other conceivable resource necessary to raise and maintain an army. The Founders wanted to clarify each enumerated power of the government without drafting a constitution that was thousands of pages long full of excruciating detail of what it permitted the Federal Government to do. They opted instead to simply insert the Necessary and Proper Cause as a shorthand qualifier of all Federal power. This single clause served as a surrogate for thousands of pages of detailed elaboration.
The danger of such a simple clause is that it can be interpreted very broadly. Given the natural instincts of governments to expand their powers rather than to cede them, this clause became the basis for Congress to assume broader and broader powers over time. As our country evolved and modernized, there were nearly limitless opportunities for Congressional power to be twisted, morphed, reinterpreted, or otherwise expanded to address exigencies that the original Constitution did not anticipate.
While this could be considered an efficient way for Congress to address an ever-changing world, it is also essentially a blank check of power handed to Congress. Clever politicians will always find a way to justify the expansion of their powers as “necessary and proper”, no matter how remotely related the expansion is to any specifically enumerated powers in the Constitution. Most of the laws and governmental machinery established by Congress in our history rely on the Necessary and Proper Clause as their constitutional justification. In that sense, it may be the single most consequential clause in the Constitution.
There are three key components to this clause that are critical to understanding it. The first is the word “necessary”, which is perhaps the most dangerous, because almost any potential action of the Federal Government can be deemed as necessary by someone somehow. The second is the word “proper” which is a bit more restrictive, but again it is likely that any potential action of the Federal Government can be deemed as proper by someone somehow. The third is that the clause makes specific reference to the enumerated powers of the Federal Government as the basis for its application. This is the most critical component of the clause.
It is important to understand that these three key components of the clause were meant by the Founders to be applied in conjunction. So, it is not sufficient to justify an intended governmental action as necessary. It is not sufficient to justify an intended governmental action as proper. It is a requirement that an intended action by the Federal Government be necessary, proper, and based on a specifically enumerated power in the Constitution. All three “tests” must be met for this clause to be used as justification for legislative or executive action.
Unfortunately, not only have both the Legislative and Executive branches of the Federal Government taken a very expansive interpretation of the Necessary and Proper Clause, but the Judicial branch has also done so. In the famous McCulloch v. Maryland ruling in 1819, the Supreme Court gave Congress broad authority to determine what is “necessary”. Ever since then, the Supreme Court has never challenged Congress’s broad interpretation of the clause.
We think of our Constitution as a series of checks and balances on Federal power designed to protect individual and state sovereignty. However, when the Federal Government is empowered by a clause that is broadly interpreted as an authoritarian blank check, the checks and balances in the Constitution are rendered paper tigers.
In the absence of effective checks and balances, the power of the Federal Government has grown, fueled largely by legislative and executive overreaches in reaction to various crises that afflicted the nation. These crises have included wars, economic disruptions, civil unrest, pandemics, and perceived existential threats like climate change. The one thing that these crises had in common was that they all triggered more Federal Government spending, programs, and usurpations of individual and state sovereignty.
The Federal Government will continue to grow exponentially if the only thing that citizens do is to hope and pray that Washington politicians will somehow constrain it. They won’t. They can’t. Politicians usually add laws, they rarely subtract them. It doesn’t matter which political party they are a member of.
The only antidote to an ever-growing central government that is drawing its political oxygen from expansive interpretation of the Necessary and Proper Clause is aggressive utilization of the 9th and 10th amendments by states and individuals.
The Founders added the 9th and 10th Amendments to the Constitution to make clear that individuals and states retained all rights and powers not specifically granted to the Federal Government. This ultimate “check and balance” applies regardless of any reckless interpretation by Washington politicians of the Necessary and Proper Clause.
At some point We the People must summon the courage and fortitude to remind our leaders of the intended Constitutional constraints on federal power – including the Necessary and Proper Clause. We will also have to remind them of the inalienable sovereignty of the individuals and the states who created the federal government and who can reform it if necessary.
This is now more necessary than ever. No one in Washington is going to fix this for us.