The necessary and proper clauses

Georgetown Law Journal

Volumn 102, Issue 4, 2014, Pages 1045-1132

  Mikhail, John ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 84899856526     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (184)

1. See, e.g., 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 151 (Max Farrand ed., 1911) (Wilson's first draft of the Constitution for the Committee of Detail, including instructions "[t]o treat the Powers of the legislat[ure],", "except from those Powers certain specified Cases," and to assign other "Powers which may, with Propriety be vested in it,"); Id. at 168 (Wilson's later draft, which includes all three Necessary and Proper Clauses, the first of which is crossed out); Id. at 182 (the Committee of Detail's August 6 draft, which includes all three Necessary and Proper Clauses).
2. For useful histories that examine the activities of Wilson and the nationalists during the Confederation period, see generally E. JAMES FERGUSON, THE POWER OF THE PURSE: A HISTORY OF AMERICAN PUBLIC FINANCE, 1776-1790 (1961)
3. H. JAMES HENDERSON, PARTY POLITICS IN THE CONTINENTAL CONGRESS (1974)
4. MERRILL JENSEN, THE ARTICLES OF CONFEDERATION: AN INTERPRETATION OF THE SOCIAL-CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION, 1774-1781 (1940) [hereinafter JENSEN, THE ARTICLES OF CONFEDERATION]
5. MERRILL JENSEN, THE NEW NATION: A HISTORY OF THE UNITED STATES DURING THE CONFEDERATION, 1781-1789 (2d ed. 1981) [hereinafter JENSEN, THE NEW NATION]
6. Lance Banning, James Madison and the Nationalists, 1780-1783, 40 WM. & MARY Q. 227 (1983)
7. Merrill Jensen, The Cession of the Old Northwest, 23 MISS. VALLEY HIST. REV. 27 (1936)
8. Merrill Jensen, The Creation of the National Domain, 1781-1784, 26 MISS. VALLEY HIST. REV. 323 (1939) [hereinafter Jensen, The Creation].
9. For other important studies that supply essential background and surrounding context to the main themes of this Article, see generally THOMAS PERKINS ABERNETHY, WESTERN LANDS AND THE AMERICAN REVOLUTION (1937)
10. AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY (2005)
11. LANCE BANNING, THE SACRED FIRE OF LIBERTY: JAMES MADISON AND THE FOUNDING OF THE FEDERAL REPUBLIC (1995)
12. WILLIAM WINSLOW CROSSKEY & WILLIAM JEFFREY, JR., 3 POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES: THE POLITICAL BACKGROUND OF THE FEDERAL CONVENTION (1980)
13. ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010)
14. SHAW LIVERMORE, EARLY AMERICAN LAND COMPANIES: THEIR INFLUENCE ON CORPORATE DEVELOPMENT (1939)
15. PETER S. ONUF, THE ORIGINS OF THE FEDERAL REPUBLIC: JURISDICTIONAL CONTROVERSIES IN THE UNITED STATES, 1775-1787 (1983)
16. JACK N. RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE HISTORY OF THE CONTINENTAL CONGRESS (1979)
17. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969).
18. See JAMES WILSON, Considerations on the Bank of North America (1785), in 1 COLLECTED WORKS OF JAMES WILSON 60 (Kermit L. Hall and Mark David Hall eds., 2007).
19. See, e.g., RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 153-90 (2004)
20. JOSEPH M. LYNCH, NEGOTIATING THE CONSTITUTION: THE EARLIEST DEBATES OVER ORIGINAL INTENT 31-49 (1999)
21. Robert G. Natelson, The Framing and Adoption of the Necessary and Proper Clause, in GARY LAWSON, GEOFFREY P. M ILLER, ROBERT G. NATELSON & GUY I. SEIDMAN, THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE 84, 94-114 (2010) [hereinafter ORIGINS].
22. See Gary Lawson & Guy I. Seidman, Discretionary Grants in Eighteenth-Century English Legislation, in ORIGINS, supra note 9, at 13, 13-34
23. Gary Lawson & Guy I. Seidman, An Ocean Away: Eighteenth-Century Drafting in England and America, in ORIGINS, supra note 9, at 35, 35-51.
24. See Robert G. Natelson, The Legal Origins of the Necessary and Proper Clause, in ORIGINS, supra note 9, at 52, 52-83.
25. See Geoffrey P. Miller, The Corporate Law Background of the Necessary and Proper Clause, in ORIGINS, supra note 9, at 144-76.
26. See JENSEN, THE ARTICLES OF CONFEDERATION, supra note 7, at 120-22, 211-18 (describing the land companies' appeals to the inherent sovereignty of the United States over the western territories); LIVERMORE, supra note 7, at 106-11, 113-19 (describing the activities of the owners and agents of the Indiana Company and Illinois and Wabash Companies, including Wilson); LINDSAY G. ROBERTSON, CONQUEST BY LAW: HOW THE DISCOVERY OF AMERICA DISPOSSESSED INDIGENOUS PEOPLES OF THEIR LANDS 3-27 (2005) (describing the history and affairs of the Illinois and Wabash Companies, which Wilson led from 1781 to 1798))
27. See, e.g., Gary Lawson & Patricia B. Granger, The "Proper," Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267, at 274-326 (1993) (discussing the origins and original understanding of the Necessary and Proper Clause without special emphasis on Wilson))
28. See, e.g., JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 177 (1997) ("The chief difficulty in tracing [the founders' approach to] federalism through the Convention involves interpreting the motives underlying Article 6 of the Virginia Plan⋯.,").
29. See BARNETT, supra note 9, at 155-57 (same); LACROIX, supra note 7, at 147-49 (same); LYNCH, supra note 9, at 3-4, 8-15 (same); RAKOVE, supra note 23, at 177-80 (discussing Resolution VI and its implications for the framers' conceptions of federalism); Jack M. Balkin, Commerce, 109 MICH. L. REV. 1, 8-12 (2010) (same)
30. Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STA N. L. REV. 115, 123-24 (2010) (same)
31. William Ewald, The Committee of Detail, 28 CONST. COMMENT. 197, 260-73 (2012) (same).
32. For an extensive analysis of Resolution VI, see 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 (2012).
33. See, e.g., DOUGLASS ADAIR, The Authorship of the Disputed Federalist Papers, in FAME AND THE FOUNDING FATHERS: ESSAYS BY DOUGLASS ADAIR 27, 40 (Trevor Colbourn ed., 1974) (discussing the Virginia Plan without explaining the origin of this critical language)
34. For example, Benjamin Franklin's first draft of the Articles of Confederation, presented to the Second Continental Congress in 1775, called for giving Congress the authority to impose taxes, make war, enter foreign alliances, resolve colonial disputes, form new colonies, and make all laws "necessary to the General Welfare" that local assemblies "cannot be competent," to enact. See Franklin's Articles of Confederation (July 21, 1775), AVALON PROJECT, http://avalon.law.yale.edu/18th-century/contcong-07-21- 75.asp.
35. In a 1780 letter to James Duane, Alexander Hamilton characterized the implied powers of the United States in similarly broad terms, arguing that on behalf of "the public good" Congress, "should have considered themselves as vested with full power to preserve the republic from harm," adding that "many of the highest acts of sovereignty, which were always chearfully submitted to - the declaration of independence, the declaration of war, the levying an army, creating a navy, emitting money, making alliances with foreign powers, [and] appointing a dictator" were merely implications of "a complete sovereignty" possessed by Congress. Letter from Alexander Hamilton to James Duane (Sept. 3, 1780), FOUNDERS ONLINE, http://founders. archives.gov/documents/Hamilton/01-02-02-0838 (emphasis omitted).
36. In 1781, Robert Morris and his nationalist supporters in Congress argued that the national debt should be paid by taxes imposed and collected by Congress. "Their argument was that the debt represented an obligation of Congress rather than the thirteen states. Morris discerned an implied contract between Congress and the public creditors which could only be validated if Congress had perfect control of the revenue to pay them.," FERGUSON, supra note 7, at 143. In 1783, Pelatiah Webster proposed that the national legislative authority should extend to matters of "a general necessity and utility to all the States, as cannot come within the jurisdiction of any particular State, or to which the authority of any particular State is not competent.," HANNIS TAYLOR, A MEMORIAL IN BEHALF OF THE ARCHITECT OF OUR FEDERAL CONSTITUTION: PELATIAH WEBSTER 43 (1908).
37. In recent years, the literature on originalism has become increasingly sophisticated and influential. See, e.g., JACK M. BALKIN, LIVING ORIGINALISM (2012)
38. BARNETT, supra note 9; ROBERT W. B ENNETT & LAWRENCE B. SOLUM, CONSTITUTIONAL ORIGINALISM: A DEBATE (2011)
39. JOHN O. MCGINNIS & MICHAEL B. RAPPAPORT, ORIGINALISM AND THE GOOD CONSTITUTION (2013).
40. See, e.g., Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889) (recognizing "incident[s] of sovereignty belonging to the government of the United States as part of those sovereign powers delegated by the constitution,")
41. Theodore Roosevelt, Legislative Actions and Judicial Decisions, in 18 WORKS OF THEODORE ROOSEVELT 82-85 (1923-1926) (arguing that Wilson and Marshall were correct to insist that "an inherent power rested in the nation, outside of the enumerated powers conferred upon it by the Constitution, in all cases where the object involved was beyond the power of the several States and was a power ordinarily exercised by sovereign nations,").
42. See, e.g., George Creel, Roosevelt's Plans and Purposes, COLLIER'S MAGAZINE, Dec. 26, 1936, at 7, 40 (explaining the basis of FDR's view that the provision of the Constitution that refers to "'all other powers vested by this Constitution' carries with it explicit authorization to enact laws to 'promote the general welfare,' so specifically mentioned in the Preamble and again in Article I, Section 1,").
43. See, e.g., NFIB v. Sebelius, 132 S. Ct. 2566, 2591-92 (2012) (relying on the Foregoing Powers Provision to analyze the constitutionality of federal legislation under the Necessary and Proper Clause))
44. United States v. Comstock, 560 U.S. 126, 134-36 (2010) (same)
45. Gonzalez v. Raich, 545 U.S. 1, 22 (2005) (same)
46. Printz v. United States, 521 U.S. 898, 923-24 (1997) (same).
47. United States v. Kebodeaux, 133 S. Ct. 2496, 2502 (2013) (quoting the full Necessary and Proper Clause and highlighting the phrase "all other Powers," by setting it off with separate quotation marks)).
48. See, e.g., THE FEDERALIST NO. 33, at 203 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (using the term "sweeping clause" to refer to the provision authorizing Congress, "to make all laws which shall be necessary and proper for carrying into execution the powers by that Constitution vested in the government of the United States, or in any department or officer thereof")); 12 PAPERS OF JAMES MADISON 194, 205 (Charles F. Hobson & Robert A. Rutland eds., 1979) (notes and text of James Madison's June 8, 1789 speech in Congress) (using the phrase "Sweeping Clause" to refer to the provision "granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof")
49. 10 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS 1789-1791, at 468-81 (Charlene Bangs Bickford, Kenneth R. Bowling & Helen E. Veit eds., 1992) (text of Elbridge Gerry's May 6, 1789 speech in Congress) (invoking "The sweeping clause" with "reference to this power, 'And all other powers vested - in government of United States',")
50. See The Congressional Register, 8 June 1789 (Mr. Madison), reprinted in CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL CONGRESS 82 (Helen E. Veit, Kenneth R. Bowling & Charlene Bangs Bickford eds., 1991) [hereinafter CREATING THE BILL OF RIGHTS] (explaining that although the powers of the federal government are directed toward particular objects, Congress "has certain discretionary powers with respect to the means⋯ because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the Government of the United States, or in any department or officer thereof; this enables them to fulfill every purpose for which the government was established,").
51. An Old Whig, No. 2 (Fall 1787), in 3 THE FOUNDERS' CONSTITUTION 239, 239 (Philip B. Kurland & Ralph Lerner eds., 1987).
52. See AN ORDINANCE FOR THE GOVERNMENT OF THE TERRITORY OF THE UNITED STATES, NORTH-WEST OF THE RIVER OHIO art. 6 (1787) ("There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes whereof the party shall have been duly convicted⋯., "). For background and critical discussion of this provision, see DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS 74-89 (1978)
53. GEORGE WILLIAM VAN CLEVE, ASLAVEHOLDERS'UNION: SLAVERY, POLITICS, AND THE CONSTITUTION IN THE EARLY AMERICAN REPUBLIC 153-68 (2010).
54. See generally LYNCH, supra note 9. According to Lynch, "government by implication soon became the modus operandi," of the first Congress. Id. at 51. For another systematic survey of the exercise of implied government power during this period, see generally DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD, 1789-1801 (1997).
55. "The expressions [of the Necessary and Proper Clause] have peculiar comprehensiveness. They are - 'to make all laws, necessary and proper for carrying into execution the foregoing powers & all other powers vested by the constitution in the government of the United States, or in any department or officer thereof.'" ALEXANDER HAMILTON, Opinion on the Constitutionality of the Bank (Feb. 23, 1791), in 9 THE PAPERS OF ALEXANDER HAMILTON 103 (Harold C. Syrett & Jacob E. Cooke eds., 1965)
56. cf. Editorial Note, in THE PAPERS OF GEORGE WASHINGTON 422 (Theodore J. Crackel ed., digital ed. 2008), available at http://rotunda.upress.virginia.edu/ founders/default.xqy?keys=GEWN-print-05-07-02-0090-0001 (observing that Hamilton "sought not simply to refute the arguments of Randolph and Jefferson but to assert the broad authority of Congress to legislate on the basis of Article I, Section 8 of the Constitution, which empowered the legislature 'To make all Laws which shall be necessary and proper for carrying into Execution' all 'Powers vested by this Constitution in the Government of the United States',"). See also, e.g., LYNCH, supra note 9, at 83-86 (summarizing the constitutional arguments in favor of the bank given by Hamilton's supporters in Congress, many of which drew on the All Other Powers Provision).
57. See 6 U.S. (2 Cranch) 358, 396 (1805) (Marshall, C.J.) (observing that the policy of giving the United States a preference over other creditors "is claimed under the authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the government of the United States, or in any department or officer thereof); Cf. 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 244-45 (2d ed. 1826) (noting that the bankruptcy law in Fisher was upheld under "a power founded on the authority to make all laws which should be necessary and proper to carry into effect the powers vested by the Constitution in the government of the United States,").
58. See 22 U.S. (9 Wheat.) 738, 860 (1824) ("The whole opinion of the Court, in the case of M'Culloch v. The State of Maryland, is founded on, and sustained by, the idea that the Bank is an instrument which is 'necessary and proper for carrying into effect the powers vested in the government of the United States.'"); see also id. at 861 ("Why is it that Congress can incorporate or create a Bank? This question was answered in the case of M'Culloch v. The State of Maryland. It is an instrument which is 'necessary and proper' for carrying on the fiscal operations of government."); Id. (discussing the bank with references to "the purposes of government,"); Id. at 864-65 (same). The precise ground of McCulloch is controversial, of course, because there are other passages in the opinion which suggest that the Court relied more narrowly on the Foregoing Powers Provision. Nevertheless, it seems clear that at a minimum Marshall sought to maintain a strategic ambiguity on this question. What is perhaps most notable in this regard is the frequency with which Marshall quotes or paraphrases the full Necessary and Proper Clause or refers to the powers and purposes of "government," rather than to the enumerated powers of Congress. Moreover, a careful review of the Marshall Court's Necessary and Proper jurisprudence suggests that it systematically downplays the Foregoing Powers Provision and seeks wherever possible to appeal to the All Other Powers Provision. All told, the Marshall Court relied on the latter provision on at least five occasions in the course of its effort to shape the Constitution into a viable charter for American nationalism, whereas there appear to be no cases which rest squarely and unambiguously on the former provision. In addition to Fisher, Osborn, and McCulloch, see Bank of the United States v. Halstead, 23 U.S. (10 Wheat.) 51, 53-54 (1825) (resting the power "to carry into complete effect the judgments of the Courts" on Congress's authority "to make all laws which shall be necessary and proper for carrying into execution all the powers vested by the constitution in the government of the United States, or in any department or officer thereof,"); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 22-23 (1825) (upholding Congress's power to delegate to the federal judiciary the power to prescribe rules of judicial procedure under the authority of the second half of the All Other Powers Provision)).
59. For analysis of Virginia politics during this period, including the turn toward Antifederalism and states' rights, see generally RICHARD R. BEEMAN, THE OLD DOMINION AND THE NEW NATION, 1788-1801 (1972)
60. Kevin R.C. Gutzman, Edmund Randolph and Virginia Constitutionalism, 66 REV. POL. 469 (2004)
61. K.R. Constantine Gutzman, The Virginia and Kentucky Resolutions Reconsidered: "An Appeal to the Real Laws of Our Country," 66 J. S. HIST. 473 (2000)
62. J. Gordon Hylton, Virginia and the Ratification of the Bill of Rights, 1789-1791, 25 U. RICH. L. REV. 433 (1991).
63. See, e.g., John Marshall, Report of the Minority on the Virginia Resolutions (Jan. 22, 1799), in 5 THE FOUNDERS' CONSTITUTION, supra note 51, at 137
64. (defending the constitutionality of the Sedition Act on the ground that "[t]he power of making all laws which shall be necessary and proper for carrying into execution all powers vested by the constitution in the government of the United States, or in any department or officer thereof, is by the concluding clause of the eighth section of the first article, expressly delegated to congress"). This "Minority Report," has sometimes been attributed to Henry Lee. See, for example, the digital version of the same essay in THE FOUNDERS' CONSTITUTION, available at http://press-pubs.uchicago. edu/founders/documents/amendI-speechs20.html (last visited Dec. 15, 2013).
65. Kurt Lash and Alicia Harrison make a persuasive case, however, that the author was John Marshall. See Kurt T. Lash & Alicia Harrison, Minority Report: John Marshall and the Defense of the Alien and Sedition Acts, 68 OHIO ST. L.J. 435, 439-40 (2007).
66. 16 ANNALS OF CONG. 148 (1806) (emphasis added).
67. Apparently, Clopton himself had been threatened with prosecution under the Sedition Act. See JAMES MORTON SMITH, FREEDOM'S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES 183 (1956).
68. Understandably, then, he may have been alarmed by what he perceived to be the revival of arguments for broad government powers in Fisher. For more background on Clopton, including a vivid account of his 1799 congressional election contest with Marshall, see JEAN EDWARD SMITH, JOHN MARSHALL: DEFINER OF A NATION 242-250 (1996) [hereinafter SMITH, JOHN MARSHALL].
69. KARL N. LLEWELLYN, THE COMMON LAW TRADITION 5-6 (1960)
70. KARL N. LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 217-19, 299-315 (1962).
71. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406-07 (1819).
72. See, e.g., NFIB v. Sebelius, 132 S. Ct. 2566, 2591-93 (2012) (Roberts, C.J.) (analyzing the constitutionality of the ACA under the first Necessary and Proper Clause only, without reference to the "other powers vested by this Constitution in the Government of the United States,")
73. Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1279 (11th Cir. 2011) ("Congress has the power '[t]o make all Laws which shall be necessary and proper for carrying into Execution' its enumerated power." (emphasis added)))
74. Florida v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1298 (N.D. Fla. 2011) ("The Necessary and Proper Clause cannot be utilized to 'pass laws for the accomplishment of objects' that are not within Congress' enumerated powers.")
75. Virginia v. Sebelius, 728 F. Supp. 2d 768, 782 (E.D. Va. 2010) (,"[The Necessary and Proper Clause] grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power." (emphasis added))).
76. The only exceptions of which I am aware are a published commentary by Professor Laurence Tribe on SCOTUSblog and my own commentaries on Balkinization. See Laurence H. Tribe, The Limits of Intuition, SCOTUSBLOG (Aug. 4, 2011, 2:56 PM), http://www.scotusblog.com/2011/08/the-limits-of-intuition/ ("The Necessary & Proper Clause, which grants Congress the power to 'make all Laws which shall be necessary and proper for carrying into Execution⋯ all other Powers vested by this Constitution in the Government of the United States,' likewise assures the individual mandate's constitutional validity.,")
77. Id. ("The individual mandate is⋯ justified by Congress's authority to take all steps 'necessary and proper' to the effectuation of powers otherwise 'vested by this Constitution' in the national government⋯., "); see also John Mikhail, The Necessary and Proper Clauses, BALKINIZATION (Aug. 13, 2011), http://balkin.blogspot.com/2011/08/necessary-and-proper- clauses.html (distinguishing three Necessary and Proper Clauses)
78. John Mikhail, The Necessary and Proper Clauses, Part 2: Foregoing Powers v. All Other Powers, BALKINIZATION (Aug. 22, 2011), http://balkin.blogspot.com/ 2011/08/necessary-and-proper-clauses-part-2.html (observing that all of the lower federal court judges who had invalidated the Affordable Care Act at that time had focused their attention exclusively on the Foregoing Powers Provision.).
79. Brief for Authors of The Origins of the Necessary and Proper Clause (Gary Lawson, Robert G. Natelson & Guy Seidman) and the Independence Institute as Amici Curiae Supporting Respondents (Minimum Coverage Provision), Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011) (No. 11-11021-HH) (filed on May 9, 2011) (on file with author).
80. See Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 860 (1824).
81. See, e.g., Juilliard v. Greenman, 110 U.S. 421, 450 (1884) ("[W]e are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in payment of private debts is⋯ consistent with the letter and spirit of the constitution, and therefore within the meaning of that instrument, 'necessary and proper for carrying into execution the powers vested by this constitution in the government of the United States.',")
82. Knox v. Lee, 79 U.S. 457, 535 (1870) ("Congress has often exercised, without question, powers that are not expressly given nor ancillary to any single enumerated power. Powers thus exercised are what are called by Judge Story in his Commentaries on the Constitution, resulting powers, arising from the aggregate powers of the government. He instances the right to sue and make contracts. Many others might be given.,").
83. Missouri v. Holland, 252 U.S. 416, 432 (1920) (Holmes, J.) ("If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.,").
84. Cf. Gary Lawson, Geoffrey P. Miller, Robert G. Natelson & Guy I. Seidman, Raiders of the Lost Clause: Excavating the Buried Foundations of the Necessary and Proper Clause, in ORIGINS, supra note 9, at 1, 3-4 (observing that "because the Necessary and Proper Clause is the source of virtually all of the congressional power to structure the federal government, the clause is at the heart of almost any interdepartmental dispute about the separation of powers" and adding that it may be "the most important clause in the Constitution,")
85. See, e.g., BARNETT, supra note 9, at 153-90; LYNCH, supra note 9, at 8-49; Natelson, supra note 11, at 84-119; See also, e.g., ANTHONY J. BELLIA, JR., FEDERALISM 279 (2011) (quoting only the Foregoing Powers Provision in the first paragraph of a chapter devoted to "The Enumerated Powers of Congress")
86. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 240-41 (3d ed. 2006) (explaining that under the Necessary and Proper Clause, "Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority" (emphasis added).
87. Compare WALTON H. HAMILTON & DOUGLASS ADAIR, THE POWER TO GOVERN: THE CONSTITUTION - THEN AND NOW 135 (1937) (analyzing Congress's Article I powers "in their fullness" but quoting only this part of the Necessary and Proper Clause: "To make all Laws which shall be necessary and proper for carrying into Execution the Foregoing Powers,")
88. IRVING BRANT, STORM OVER THE CONSTITUTION 120 (1936) (explaining that the framers "made the government strong" by giving it implied powers that grew "out of the enumerated powers" and "were created by the clause giving Congress power 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers',"), with BARNETT, supra note 19, at 157 (arguing that the original public meaning of the Necessary and Proper Clause "authorized only the enactment of laws that were incidental to the enumerated powers,")
89. Gary Lawson & David B. Kopel, Bad News for Professor Koppelman: The Incidental Unconsti-tutionality of the Individual Mandate, 121 YALE L.J. ONLINE 267, 276 (2011) (explaining that when the Committee of Detail added the words "and Proper" to the first draft of the Foregoing Powers Provision, "the final result was the Necessary and Proper Clause,").
90. William Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of "The Sweeping Clause," 36 OHIO ST. L.J. 788, 793 (1975).
91. See, e.g., LYNCH, supra note 9, at 4 (describing the clause as "a masterpiece of enigmatic formulation,"); BERNARD H. SIEGEN, THE SUPREME COURT'S CONSTITUTION: AN INQUIRY INTO JUDICIAL REVIEW AND ITS IMPACT ON SOCIETY 1 (1987) (observing that "the accounts of the 1787 Constitutional Convention are silent on the meaning of the necessary and proper power,")
92. Mark A. Graber, Unnecessary and Unintelligible, 12 CONST. COMMENT. 167, 168 (1995) (the Committee of Detail "gave no hint why it chose the language it did,").
93. * (describing Wilson as early America's "foremost legal scholar" who was "far more fluent in [the] law," than Madison); Robert Green McCloskey, Introduction, in 1 THE WORKS OF JAMES WILSON 1, 1-2 (Robert Green McCloskey ed., 1967) ("[Wilson] was commonly accepted in a nation already much dominated by lawyers as the most learned and profound legal scholar of his generation.,")
94. CHARLES PAGE SMITH, JAMES WILSON, FOUNDING FATHER: 1742-1798, at 341 (1956) ("As a practical lawyer, Wilson was one of the outstanding legal figures of his day. As a theorist, he had no serious rival.,"). Among his other accomplishments, Wilson was the only person in American history to sign the Declaration of Independence, sign the Constitution, and sit on the Supreme Court. Over the course of his career, he also (1) served as Advocate General for France from 1779 to 1783; (2) was the lead attorney for Pennsylvania in the 1782 Wyoming Valley litigation, a border dispute between Pennsylvania and Connecticut that was the only case ever resolved under the elaborate adjudication mechanism created by Article IX of the Articles of Confederation (Wilson prevailed, and the panel appointed to hear the case held that Connecticut had no right to the lands in controversy); (3) litigated some of the most important treason and admiralty cases of the Revolutionary period; (4) served as president and chief legal officer of the Illinois-Wabash Land Companies, one of the most influential early American land corporations; (5) was among the first named directors of the Bank of North America; and (6) was largely responsible for drafting the 1790 Pennsylvania state constitution. See MARK DAVID HALL, THE POLITICAL AND LEGAL PHILOSOPHY OF JAMES WILSON 17-19, 24-25 (1997)
95. See, e.g., James Madison, Speech in Congress Opposing the National Bank, in SELECTED WRITINGS OF JAMES MADISON 486-87 (Ralph Ketcham ed., 2006) ("It is not pretended that every insertion or omission in the constitution is the effect of systematic attention.,")
96. Walter Dellinger & H. Jefferson Powell, The Constitutionality of the Bank Bill: The Attorney General's First Constitutional Law Opinions, 44 DUKE L.J. 110, 127 (1994) (Letter from Attorney General Randolph to President Washington) (Feb. 12, 1791) (suggesting that one "ought to consider" the Necessary and Proper Clause "as among the surplusage which as often proceeds from inattention as caution,").
97. Carter v. Carter Coal Company, 298 U.S. 238, 292 (1936).
98. See, e.g., Editorial Note to the Virginia Plan, in 9 THE PAPERS OF JAMES MADISON, supra note 47, at 12-13 (explaining that while Madison never claimed credit for the Virginia Plan, he "sketched the main features of the plan in letters to Jefferson, Randolph, and Washington,").
99. JEAN-JACQUES BURLAMAQUI, THE PRINCIPLES OF NATURAL AND POLITIC LAW, IN TWO VOLUMES (Nugent trans., 1778).
100. President Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), in LINCOLN: SELECTED SPEECHES AND WRITINGS 300 (Don E. Fehrenbacher ed., 1992).
101. President Abraham Lincoln, The Gettysburg Address, in 2 LINCOLN: SPEECHES AND WRITINGS, supra note 128, at 536.
102. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 458 (1793) ("The sovereign, when traced to his source, must be found in the man.,").
103. Like much of Wilson's Chisholm opinion, this remark was lifted from his Law Lectures: "The dread and redoubtable sovereign, when traced to his ultimate and genuine source, has been found, as he ought to have been found, in the free and independent man.," JAMES WILSON, Introductory Lecture: On the Study of the Law in the United States, in 1 COLLECTED WORKS OF JAMES WILSON, supra note 8, at 81.
104. See JAMES WILSON, Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, in 1 COLLECTED WORKS OF JAMES WILSON, supra note 8, at 4-5 ("All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.").
105. See, e.g., GARRY WILLS, INVENTING AMERICA: JEFFERSON'S DECLARATION OF INDEPENDENCE 240, 248-51 (1978) (identifying this passage from Wilson as a probable influence on Jefferson).
106. See, e.g., Gouverneur Morris, Address to the Assembly of Pennsylvania, on the Abolition of the Bank of North America, reprinted in 3 JARED SPARKS, THE LIFE OF GOUVERNUER MORRIS, WITH SELECTIONS FROM HIS CORRESPONDENCE AND MISCELLANEOUS PAPERS 435 (1832)
107. See, e.g., WALTER ISAACSON, BENJAMIN FRANKLIN: AN AMERICAN LIFE 158-62 (2004) (describing Franklin's Albany Plan of 1754).
108. Although they are less well-known than Wilson, Franklin, and the Morrises, the other Pennsylvania delegates to the convention were also important figures in their day. At the time of the convention, all of them appear to have been committed nationalists, who had strong ties to Robert Morris and his circle and who favored strengthening the powers of the United States. Fitzsimons was a wealthy Philadelphia merchant who, like Wilson, was named as one of the first directors of the Bank of North America. Clymer served as a director of the Bank of Pennsylvania, which Wilson and Morris helped to organize in 1780. Later, Clymer also became a director of the Bank of North America. Ingersoll was part of a rival group of merchants who challenged the Bank of North America's state monopoly in 1783, arguing that a second bank would increase the availability of affordable credit. That effort ended in a settlement in which the leaders of this rival enterprise, including Ingersoll, were offered shares of stock in the Bank of North America at bargain prices. Mifflin was a major general in the Continental Army, who served as George Washington's aide-de-camp and later Quartermaster General. In. In these capacities and as a member of the Congressional War Board, he worked closely with Washington, Robert Morris, and others to fund and organize the operations of the Continental Army. Later, Mifflin served as President of the Continental Congress (1783-1784) and held a variety of state offices, including Speaker of the House of Representatives (1785-1787), President (1788-1790), and Governor (1790-1799). Mifflin also was a member of the Society of the Cincinnati, an organization of Army officers founded in 1783. See ROBERT K. WRIGHT, JR. & MORRIS J. MACGREGOR, JR., SOLDIER-STATESMEN OF THE CONSTITUTION 88-90, 109-11, 153-54, 156-60 (1987)
109. See also, e.g., LAWRENCE LEWIS, A HISTORY OF THE BANK OF NORTH AMERICA 24-74 (1882)
110. JACK N. RAKOVE, JAMES MADISON and THE CREATION OF THE AMERICAN REPUBLIC 21 (1990).
111. To be sure, a reasonable case could be made that Madison did not need Wilson or anyone else to fill in the gap in his preconvention correspondence with Randolph and Washington when he drafted the Virginia Plan. For one thing, the key concepts of Resolution VI - "competence" and "harmony," - were widely used throughout the period. See, e.g., TAYLOR, supra note 28 (Congress can legislate in all cases "to which the authority of any particular state is not competent" (emphasis added)); Franklin's Articles of Confederation, supra note 28 (Congress can legislate whenever local assemblies "cannot be competent" to act (emphasis added)); See also, e.g., Report of the Annapolis Convention, 31 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 687 (Gallard Hunt ed., 1912) (considering how far uniform commercial regulations among the states "might be necessary to their Common interest and permanent harmony" (emphasis added)))
112. "Remonstrance of the General Assembly of Virginia to the delegates of the United American States in Congress Assembled (Dec. 14, 1779)," in From Samuel Huntington, Enclosing Papers Relating to Western Claims by the States (Sept. 10, 1780), FOUNDERS ONLINE, http://founders.archives.gov/ documents/Jefferson/01-03-02-0722
113. (expressing the General Assembly's wish to "promote that mutual confidence and harmony between the different States so essential to their true Interest and Safety" (emphasis added)). Furthermore, Madison sometimes used these concepts in his other preconvention writings and letters. See, e.g., James Madison, Vices of the Potential System of the United States (1787), in SELECTED WRITINGS OF JAMES MADISON, supra note 108, at 37 (objecting to commercial practices of the States that "are destructive of the general harmony." (emphasis added)). As I explain in the text, however, the primary issue that ultimately must be addressed is not whether Madison authored the critical language of Resolution VI, but whether the deep attachment to this principle by Wilson and the nationalists influenced how the Committee of Detail drafted the Necessary and Proper Clauses.
114. Six states voted for the Bedford Resolution when it was first adopted on July 17. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 5, at 27 (listing affirmative votes by Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, and North Carolina). Virginia and Connecticut subsequently joined them, Id., leaving only South Carolina and Georgia opposed, presumably because of the implications of the Bedford Resolution for slavery. For a variety of reasons, individual delegates at the convention who, like Wilson, had a special connection or strong attachment to the language of the Bedford Resolution presumably included inter alia George Washington, John Langdon, Nicholas Gilman, Nathanial Gorham, Rufus King, and Alexander Hamilton, along with virtually all of the delegates from Pennsylvania, Delaware, Maryland, and New Jersey. This group formed the core of the nationalist bloc that would likely have supported any effort by Wilson to incorporate the powers envisioned by the Bedford Resolution into the Constitution. An intriguing letter Wilson received from New Jersey Congressman Lambert Cadwalader while Wilson was serving on the Committee of Detail sheds some light on this issue: It is said that a Committee of the Convention is preparing some very important Business, which is in a few Days to be reported to the House - and that it is probabl[e] it will be adopted without any material Alteration. I hope it may be strongly marked with the Features which some of the Members wish to give it. Letter from Lambert Cadwalader to James Wilson (July 31, 1787), reprinted in BURTON ALVA KONKLE, 2 THE LIFE AND WRITINGS OF JAMES WILSON 1748-1798, at 348 (1942) (manuscript on file with author).
115. See generally 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 5, at 137-50. The Randolph draft was discovered in the late nineteenth century among the papers of George Mason, leading one early commentator to suggest that Mason may have had a hand in composing it. See WILLIAM M. MEIGS, THE GROWTH OF THE FEDERAL CONSTITUTION OF 1787, at 4 (1900).
116. Although this is possible, it seems more likely that Randolph originally composed the draft on his own, or with input from other members of the Committee of Detail, and then gave the draft to Mason sometime during the last weeks of the convention, when Randolph and Mason began coordinating their objections to the constitution and considering how to respond. For essential background to the existing records of the Committee of Detail, including full digital reproductions of the records themselves, see generally William Ewald and Lorianne Updike Toler, Committee of Detail Documents, 135 PA. MAG. OF HIST. & BIOGRAPHY 239 (2011)
117. Calvin H. Johnson, The Dubious Enumerated Power Doctrine, 22 CONST. COMMENT. 25, 39-40 (2005).
118. Letter from Edmund Randolph to James Madison (May 21-24, 1782), FOUNDERS ONLINE, http://founders.archives.gov/documents/Madison/01-04-02-0122 ("The arguments against the power of congress were first drawn from the non-enumeration of it in the confederation⋯. I affirmed my opinion to be, that the 2d. article ought not to be understood literally: but that the words 'expressly delegated' meant an obvious and direct consequence from the general powers, briefly sketched in the confederation: that the exclusive right of determining on war and peace, and the direction of military operations obviously and directly led to the power of granting passports⋯.," (footnotes omitted))).
119. Charles A. Lofgren, The Origins of the Tenth Amendment: History, Sovereignty, and the Problem of Constitutional Intention, in CONSTITUTIONAL GOVERNMENT IN AMERICA 331, 346 (Ronald K. L. Collins ed., 1980) (citing Gilbert Livingston's notes of Hamilton's speech at the New York ratifying convention).
120. WILLIAM LEE MILLER, THE BUSINESS OF MAY NEXT: JAMES MADISON AND THE FOUNDING 124 (1992)
121. DONALD ROBINSON, SLAVERY IN THE STRUCTURE OF AMERICAN POLITICS 1765-1820, at 218 (1971) ("The report of the Committee of Detail was a monument to Southern craft and gall.,")
122. DAVID O. STEWART, THE SUMMER OF 1787: THE MEN WHO INVENTED THE CONSTITUTION 167-75 (2007) (discussing the proceedings of the Committee of Detail under the title "Rutledge Hijacks the Constitution,"). For the references to Robinson and Stewart, I am indebted to Ewald, supra note 24, at 214.
123. John C. Hueston, Altering the Course of the Constitutional Convention: The Role of the Committee of Detail in Establishing the Balance of State and Federal Powers, 100 YALE L.J. 765, 782 (1990).
124. See, e.g., PAUL FINKELMAN, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE AGE OF JEFFERSON 9 (2001) (arguing that "the structure of the entire document ensured against emancipation by the new federal government. Because the Constitution created a government of limited powers, Congress lacked the power to interfere in the domestic institutions of the states.,").
125. WILLIAM P. M URPHY, THE TRIUMPH OF NATIONALISM: STAT E SOVEREIGNTY, THE FOUNDING FATHERS, AND THE MAKING OF THE CONSTITUTION 119 (1967).
126. See MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 126 (1913) (suggesting that Wilson may have worked alone at this stage); Ewald, supra note 24, at 271 (same).
127. See, e.g., JAMES WILSON, Remarks in the Pennsylvania Convention to Ratify the Constitution of the United States (1787), in 1 COLLECTED WORKS OF JAMES WILSON, supra note 8, at 212 ("Enumerate all the rights of men! I am sure, sir that no gentleman in the late convention would have attempted such a thing.,").
128. Id. at 163, 168. On intratextual constitutional analysis, see generally Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999).
129. See J. C. BANCROFT DAVIS, THE COMMITTEES OF THE CONTINENTAL CONGRESS CHOSEN TO HEAR AND DETERMINE APPEALS FROM COURTS OF ADMIRALTY; AND THE COURT OF APPEALS IN CASES OF CAPTURE, ESTABLISHED BY THAT BODY 5 (1888).
130. J. Franklin Jameson, The Predecessor of the Supreme Court, in ESSAYS IN THE CONSTITUTIONAL HISTORY OF THE UNITED STATES IN THE FORMATIVE PERIOD, 1775-1789, at 1, 2-45 (J. Franklin Jameson ed., 1889).
131. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803).
132. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591-92 (2012)
133. See, e.g., 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 5, at 95, 98 (proposing to give the national judiciary a share of the power to negative state laws); 2 Id. at 73 ("The Judiciary ought to have an opportunity of remonstrating agst projected encroachments on the people as well as on themselves.,"); Id. at 391 ("The firmness of Judges is not of itself sufficient⋯. It will be better to prevent the passage of an improper law, than to declare it void when passed.,"); See also, e.g., JAMES WILSON, Remarks in Pennsylvania Convention, in 1 COLLECTED WORKS OF JAMES WILSON, supra note 8, at 246 ("If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates.,")
134. JAMES WILSON, Comparisons of Constitutions (1791), in 1 COLLECTED WORKS OF JAMES WILSON, supra note 8, at 742-43 (explaining that Congressional authority is subject "to the control arising from the constitution" and that the power of "declaring and enforcing the superior power of the constitution," is vested in the judicial department).
135. See SMITH, supra note 105, at 159-68; JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS: HIDDEN HISTORIES OF AMERICAN LAW 15-82 (2007). As Witt emphasizes, "Wilson's land speculations are critically significant if we are to understand him.," WITT, supra, at 30.
136. See 5 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789-1800: SUITS AGAINST STATES 282 n. 50 (Maeva Marcus ed., 1994) (documenting that Wilson owned 300 shares in the company, as confirmed by a 1781 list of shareholders).
137. James Wilson, The Plan of The Bank of Pennsylvania, established for Supplying the Army of the United States for Two Months, reprinted in 3 KONKLE, supra note 173, at 108, 112 (emphasis added).
138. See Gerard Magliocca, Bingham on the Necessary and Proper Clause, CONCURRING OPINIONS (May 2, 2013, 12:43 PM), http://www.concurringopinions.com/ archives/2013/05/bingham-on-the-necessary-and-proper-clause/ ("It would appear that 'necessary and proper' was a phrase that was conjured out of thin air at the Constitutional Convention.,")
139. Letter from George Washington to Edmund Randolph (Mar. 18, 1784), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/04-01-02-0167 (emphasis added).
140. Letter from George Washington to John Marshall (Apr. 5, 1789), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/05-02-02-0021 (emphasis added).
141. Letter from Robert Morris to Benjamin Franklin (June 8, 1781), in 1 THE PAPERS OF ROBERT MORRIS 124 (E. James Ferguson ed., 1975) (emphasis added).
142. Preamble and Resolution of the Virginia Convention (May 15, 1776), AVALON PROJECT, http://avalon.law.yale.edu/18th-century/const02.asp#1 (emphasis added).
143. Enclosure I: Resolution of the Virginia Assembly (Dec. 28, 1784), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/04-02-02- 0186-0002 (emphasis added).
144. See New York Assembly Resolution on the Call of a Convention of the States (Feb. 17, 1787), FOUNDERS ONLINE, http://founders.archives.gov/documents/ Hamilton/01-04-02-0032 (emphasis added).
145. Constitution of the Bank of New York (Feb. 23-Mar. 15, 1784), FOUNDERS ONLINE, http://founders.archives.gov/documents/Hamilton/01-03-02-0332 (emphasis added).
146. ALFRED P. JAMES, THE OHIO COMPANY: ITS INNER HISTORY 208 (1959) (emphasis added).
147. See supra notes 311-12 and accompanying text; See also, e.g., Letter from George Washington to William Burnet (June 30, 1776), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/03-05-02-0105 ("refusing to comply with such terms as they deemed necessary and proper" (emphasis added))
148. Letter from Major General William Heath to George Washington (Sept. 6, 1776), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/03-06- 02-0189 ("Every necessary and Proper preparation" (emphasis added))
149. Letter from George Washington to Brigadier General John Cadwalader (Aug. 28, 1777), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/ 03-11-02-0079 ("giving such advice and direction to the Officers as shall appear to you necessary and proper" (emphasis added))
150. Letter from George Washington to Brigadier General William Maxwell (Oct. 2, 1778), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/03- 17-02-0235 ("the necessary and proper dispositions to be made" (emphasis added))
151. Letter from Brigadier General Henry Knox to George Washington (Dec. 30, 1778), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/03-18- 02-0594 ("a necessary and proper Service" (emphasis added))
152. Letter from George Washington to William Greene (May 25, 1780), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/99-01-02-01859 ("necessary and proper upon the occasion" (emphasis added))
153. Letter from Joseph Reed to George Washington (Aug. 7, 1780), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/99-01-02-02849 ("as a necessary and proper, tho an unexpected event" (emphasis added))
154. Letter from Theodorick Bland to George Washington (July 2, 1781), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/99-01-02- 06263 ("the requisition was in every sense so necessary and proper" (emphasis added))
155. Letter from Henry Knox to George Washington (Feb. 27, 1787), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/04-05-02-0051 ("circumstances have rendered it necessary, and proper" (emphasis added))
156. All of these references can be found by searching for "necessary and proper," in the Founders Online database, at http://founders.archives.gov.
157. See supra notes 313-16 and accompanying text; See also, e.g., Letter from Robert Morris to George Washington (Dec. 26, 1776), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/03-07-02-0350 ("Mr Clymer, Mr Walton & myself, are appointed a Committee to transact the Continental business here that may be necessary & proper ⋯." (emphasis added))
158. Letter from Robert Morris to John Jay (Jan. 12, 1777), in 6 LETTERS OF MEMBERS OF THE CONTINENTAL CONGRESS 87 (Edmund C. Burnett ed., 1963) [hereinafter CONTINENTAL CONGRESS] ("They have appointed Mr Walton of Georgia, Mr Clymer & myself a Committee to transact all Continental business that may be necessary & proper in this place." (emphasis added))
159. See, e.g., Letter from Benjamin Franklin to Isaac Norris (Jan. 14, 1758), FOUNDERS ONLINE, http://founders.archives.gov/documents/Franklin/01-07-02-0153 (recognizing "an undoubted Right of the House of Commons to name Commissioners in Bills in all Cases where they thought it necessary and proper" (emphasis added))
160. Letter from John Adams to the Duc de La Vauguyon (May 1, 1781), FOUNDERS ONLINE, http://founders.archives.gov/documents/Adams/06-11-02-0218 ("I shall be ready in behalf of the United States to do, whatever is necessary and proper for them to do, upon the occasion." (emphasis added))
161. Letter from Benjamin Franklin and Thomas Jefferson to M. Favi, Charge des Affaires of Tuscany (June 8, 1785), FOUNDERS ONLINE, http://founders.archives. gov/documents/Jefferson/01-08-02-0147 ("But we wish then to add two modifications to that article which seem equally necessary and proper for both parties." (emphasis added))
162. Letter from John Jay to George Washington (Jan. 7, 1787), FOUNDERS ONLINE, http://founders.archives.gov/documents/Washington/04-04-02-0427 ("make such alterations amendments and additions [to the Articles of Confederation] as to them should appear necessary and proper" (emphasis added)).
163. See, e.g., Letter from John Adams to Abigail Adams (Feb. 13, 1776), 3 CONTINENTAL CONGRESS, supra note 328, at 241 ("In the Beginning of a War, in Colonies like this and Virginia, where the martial Spirit is but just awakened and the People are unaccustomed to Arms, it may be proper and necessary for such popular Orators as Henry and Dickenson to assume a military Character." (emphasis added))
164. See Great Britain: Parliament - The Townshend Act, art. 5 (Nov. 20, 1767), AVALON PROJECT, http://avalon.law.yale.edu/18th-century/townsend-act- 1767.asp (authorizing "such monies to be applied, out of the produce of the duties granted by this act, as his Majesty⋯ shall think proper or necessary" (emphasis added)).
165. See Great Britain: Parliament - The Massachusetts Government Act, art. 23 (May 20, 1774), AVALON PROJECT, http://avalon.law.yale.edu/18th-century/mass- gov-act.asp (enacting "that it will be proper and necessary that the jurors who are to try the issues in any such actions, should have the view of the messuages, lands, or place in question" (emphasis added)).
166. See Great Britain: Parliament - The Quebec Act, art. 17 (Oct. 7, 1774), AVALON PROJECT, http://avalon.law.yale.edu/18th-century/quebec-act-1774.asp (appointing the judges and officers "as his Majesty, his Heirs and Successors, shall think necessary and proper" (emphasis added)).
167. See Resolves Adopted in Charlotte Town, Mecklenburg County, North Carolina (May 31, 1775), AVALON PROJECT, http://avalon.law.yale.edu/18th- century/charlott.asp ("To provide in some Degree for the Exigencies of the County in the present alarming Period, we deem it proper and necessary to pass the following Resolves⋯." (emphasis added))).
168. See Contract Between the King and the Thirteen United States of North America, signed at Versailles (July 16, 1782), AVALON PROJECT, http://avalon.law.yale.edu/18th-century/fr-1782.asp ("The King⋯ having had the goodness to support them, not only with his forces by land and sea, but also with advances of money⋯ it has been judged proper and necessary to state exactly the amount of those advances⋯." (emphasis added))).
169. See George Washington, Circular Letter Addressed to the Governors of all the States on Disbanding the Army (June 14, 1783), in 10 THE WRITINGS OF GEORGE WASHINGTON 254, 258 (Worthington Chauncey Ford ed., 1891) (inquiring whether "it may not be necessary or proper for me, in this place, to enter into a particular disquisition on the principles of the Union" (emphasis added))).
170. Moore v. Magrath, (1774) 98 Eng. Rep. 939, 941 (K.B.).
171. Lessee of Moor v. Moor, (1774) 98 Eng. Rep. 714, 714 (K.B.). In this case, Mansfield also characterized an "all other" clause in a will as a "sweeping clause.," Id.
172. See, e.g., Herndon v. Carr, Jeff. 132, 132-33 (Va. 1772) (quoting the phrase "all the rest of my estate, both real and personal, not herein particularly mentioned" (emphasis added))). The defendant's lawyer in this 1772 Virginia case called this clause a "sweeping residuary clause," and the plaintiff's lawyer called it "the residuary clause.," Id. at 135.
173. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 5, at 167-68 (emphasis added).
174. See SMITH, supra note 105, at 170-77 (summarizing the dispute with Connecticut over the Wyoming Valley in northeastern Pennsylvania and Wilson's legal representation of Pennsylvania in that case). For an extensive summary of this case, including a record of the legal arguments given to the commissioners by James Wilson and William Samuel Johnson, see The Connecticut-Pennsylvania Territorial Dispute, in 6 THE PAPERS OF THOMAS JEFFERSON 474-507 (Julian Boyd ed., 1952).
175. PA. CONST. ch. 2, § 9 (1776) (emphasis added). Wilson was a prominent critic of the "radical" Pennsylvania constitution. Along with John Dickenson, Robert Morris, Benjamin Rush, and other members of Philadelphia's merchant community, he helped to organize an opposition party that sought to replace it with one constructed on sound "Republican," principles. See SMITH, supra note 105, at 107-115. I am not aware of any evidence, however, that his opposition to this constitution extended to its sweeping clause per se. The Pennsylvania Constitution of 1790, which has been claimed to be Wilson's handiwork in large measure, concludes its enumeration of legislative powers in the same way as its predecessor: "Each house⋯ shall have all other powers necessary for a branch of the Legislature of a free State." Constitution of the Commonwealth of Pennsylvania - 1790, reprinted in 10 PENNSYLVANIA ARCHIVES, THIRD SERIES: PRINTED UNDER DIRECTION OF FRANK REEDER, SECRETARY OF THE COMMONWEALTH 737, 739 § 13 (William Henry Engle ed., 1896).
176. One of the principal authors of the Vermont Constitution, Dr. Thomas Young, proposed the Pennsylvania constitution to residents of Vermont "as a model, which, with very little alteration, will, in my opinion, come as near perfection as anything yet concocted by mankind.," See Robert F. Williams, The State Constitutions of the Founding Decade: Pennsylvania's Radical 1776 Constitution and its Influences on American Constitutionalism, 62 TEMP. L. REV. 541, 570 (1989) (quoting M. JONES, VERMONT IN THE MAKING, 1750-1777, at 379 (reprint ed., 1968).
177. Wilson's broad conception of the inherent sovereign powers of the United States during the revolutionary period was later partly affirmed by the Supreme Court on several occasions. See, e.g., United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316 (1936) ("By the Declaration of Independence, 'the Representatives of the United States of America' declared the United (not the several)) Colonies to be free and independent states, and, as such to have 'full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.',"); Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889) (recognizing "incident[s] of sovereignty belonging to the government of the United States as part of those sovereign powers delegated by the constitution,")
178. see also Penhallow v. Doane's Adm'rs, 3 U.S. (3 Dall.) 54, 91 (1795)
179. (Iredell, J., concurring) ("The powers of Congress at first were indeed little more than advisory; but, in proportion as the danger increased, their powers were gradually enlarged, either by express grant, or by implication arising from a kind of indefinite authority, suited to the unknown exigencies that might arise. That an undefined authority is dangerous, and ought to be entrusted as cautiously as possible, every man must admit, and none could take more pains, than Congress for a long time did, to get their authority regularly defined by a ratification of the articles of confederation. But that previously thereto they did exercise, with the acquiescence of the States, high powers of what I may, perhaps, with propriety for distinction, call external sovereignty, is unquestionable.,"). The notion of inherent constitutional powers of the United States is, of course, controversial, particularly in light of the Tenth Amendment. See MICHAEL D. RAMSEY, THE CONSTITUTION'S TEXT IN FOREIGN AFFAIRS 13-48 (2007).
180. See THE CONSTITUTION AND FRAME OF GOVERNMENT OF THE FREE AND INDEPENDENT STATE AND COMMONWEALTH OF NEW IRELAND (1780), in 1 CONSTITUTIONS OF THE WORLD FROM THE LAT E 18TH CENTURY TO THE MIDDLE OF THE 19TH CENTURY: CONSTITUTIONAL DOCUMENTS OF THE UNITED STATES 1776-1860, VOLUME V: NEW IRELAND-RHODE ISLAND 18 (Horst Dippel ed., 2007) ("The General Assembly of Representatives for the Freemen of New Ireland⋯ shall have all other Powers necessary for the Legislature of a free State⋯." (emphasis added)).
181. See, e.g., 2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 454 (Dec. 1, 1787) ("The gentleman in opposition⋯ strongly insists, that the general clause at the end of the eighth section, gives to Congress a power of legislating generally; but I cannot conceive by what means he will render the word susceptible of that expansion. Can the words, the Congress shall have power to make all laws which shall be necessary and proper to carry into execution the foregoing powers, be capable of giving them general legislative power?,"); Id. at 482 (Dec. 4, 1787) (rejecting the criticism that "'the powers of Congress are unlimited and undefined, and that they will be the judges, in all cases, of what is necessary and proper for them to do'" because "when it is said, that Congress shall have the power to make all laws which shall be necessary and proper, those words are limited, and defined by the following, 'for carrying into execution the foregoing powers.' It is saying no more than that the powers we have already particularly given shall be effectually carried into execution.,").
182. See, e.g., A Landholder (Essay V), in 14 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 334-339 (defending the Necessary and Proper Clause by explaining that Congress "must have authority to enact any laws for executing their [sic] own powers, or those powers will be evaded by the artful and unjust"); Alexander Contee Hanson, Remarks on the Proposed Plan of a Federal Government by Aristides, in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES: PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE 217, 233-34 (Paul Leicester Ford ed., 1888) (responding to the charge that the Necessary and Proper Clause would "afford pretext, for freeing congress from all constitutional restraints" by observing: "Consider the import of the words. I take the construction of these words to be precisely the same, as if the clause had preceded further and said, 'No act of congress shall be valid, unless it have relation to the foregoing powers, and be necessary and proper for carrying them into execution.',").
183. See 3 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 439 (Jonathan Elliot ed., 1836) (explaining that a construction according to which Congress would be "vested with supreme power of legislation" and "would not be confined to the enumerated powers" was implied, "by the addition of the word department, at the end of the clause, and that they could make any laws which they might think necessary to execute the powers of any department or officer of the government").
184. Printz v. United States, 521 U.S. 898, 923-24 (1997) (alterations in original) (emphasis omitted) (footnotes omitted) (citations omitted).