University of Chicago Law School
Chicago Unbound
Public Law and Legal Theory Working Papers
Working Papers
2014
Sharing the Necessary and Proper Clause
William Baude
Follow this and additional works at: http://chicagounbound.uchicago.edu/
public_law_and_legal_theory
Part of the Law Commons
Recommended Citation
William Baude, "Sharing the Necessary and Proper Clause," University of Chicago Public Law & Legal Theory Working Paper, No. 506
(2014).
This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public
Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact
[email protected].
CHICAGO
PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 506
SHARING THE NECESSARY AND PROPER CLAUSE
William Baude
THE LAW SCHOOL
THE UNIVERSITY OF CHICAGO
November 2014
This paper can be downloaded without charge at the Public Law and Legal Theory Working Paper Series:
http://www.law.uchicago.edu/academics/publiclaw/index.html
and The Social Science Research Network Electronic Paper Collection.
SHARING THE NECESSARY AND PROPER CLAUSE
William Baude∗
Few constitutional clauses have been the focus of so many hopes
and fears as the Necessary and Proper Clause.
In his Foreword, Professor John Manning puts forward a powerful
vision of the clause, challenging the current approach of the Supreme
Court. Focusing on the text, Manning suggests that it “has the unmistakable feel of an ‘empty standard,’” and is therefore a source of great
interpretive discretion.1 Manning further argues that the text gives
that interpretive discretion to Congress. Many of the congressionalpower decisions of the Roberts and Rehnquist Courts might fail under
this critique.2
Constitutional text is a natural focal point for those who challenge
current judicial practice, and Manning is right to ask whether the
Court’s doctrines have transgressed or misread the text. But Manning’s proposed reading of the text is not the only one. To choose between them, we need additional sources or theories of meaning, and at
least some of them will point to a different assessment than Manning’s.
In this Response, I argue that historical practice, McCulloch v.
Maryland,3 and the text itself all permit, though may not require, a less
deferential judicial interpretation than Manning advocates.
I. CONGRESS’S HISTORICAL ROLE
One way to think about the Necessary and Proper Clause is historically — focusing on the principles that were understood to limit it at
the Founding and how those principles were worked out in practice
afterward. For instance, in a recent article, I argued that the clause
should not be construed to include what I called “great powers,” which
must be expressly enumerated rather than implied.4 I suggested that
this theory is a current part of our constitutional practice, including
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
∗ Neubauer Family Assistant Professor of Law, University of Chicago Law School. Thanks
to Sam Bray, Jud Campbell, Josh Chafetz, Chad Flanders, Michael McConnell, Richard Re, Mark
Shawhan, and David Strauss for quick and insightful advice, and to the Editors of the Harvard
Law Review for helpful editorial suggestions.
1 John F. Manning, The Supreme Court, 2013 Term — Foreword: The Means of Constitutional
Power, 128 HARV. L. REV. 1, 54 (2014).
2 See id. at 30–48, 78–83. Manning also discusses statutory interpretation, which I lack the
space to address here.
3 17 U.S. (4 Wheat.) 316 (1819).
4 William Baude, Rethinking the Federal Eminent Domain Power, 122 YALE L.J. 1738,
1749–55 (2013).
39
Electronic copy available at: http://ssrn.com/abstract=2523965
40
HARVARD LAW REVIEW FORUM
[Vol. 128:39
many of the cases that Manning criticizes,5 but the theory draws on
neglected or ill-understood arguments from the Founding and the nineteenth century, and so it is fair to call it “revisionist.”6
Manning suggests that the “revisionist” theories should also lead to
a deferential reading. That may well be right. There is nothing in the
“revisionist” account that is inconsistent with a strong role for Congress. There is much to be said for giving Congress the lead in interpreting the Necessary and Proper Clause. It has the sanction of
history. And if you read the constitutional debates from that period,
they are often impressive.7
Sometimes the arguments for congressional power prevailed; sometimes they did not. But it is important to note that Congress did not
take charge by treating the clause as an “empty standard.”8 Rather,
members of Congress engaged in substantive legal debates about the
scope of the clause as a matter of text, history, structure, and policy.
And while Congress’s views were important, that substantive debate
was ultimately a shared enterprise.
It was Representative James Madison who articulated the “great
powers” limits to the Necessary and Proper Clause decades before
John Marshall mentioned them in McCulloch v. Maryland.9 Madison
argued that it was unconstitutional to create the bank of the United
States as a corporation because doing so was “a great and important
power” that was not expressly enumerated and therefore could not be
implied.10
It was Representative Philip Barbour who marshalled arguments
against the “Bonus Bill” designed to fund internal improvements to
infrastructure.11 Barbour’s arguments ranged over various federal
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
5 Compare Manning, supra note 1, at 33–39, 78–81 (criticizing theory applied in Printz v.
United States, 521 U.S. 898 (1997), and National Federation of Independent Business v. Sebelius,
132 S. Ct. 2566 (2012)), and id. at 38 n.230 (more obliquely criticizing Alden v. Maine, 527 U.S.
706 (1999), as well), with Baude, supra note 4, at 1815–18 (providing different assessment and
qualified defense of the reasoning in these cases).
6 Manning, supra note 1, at 57–60. The leading “revisionist” theory, which mine builds off of,
is put forth in GARY LAWSON, GEOFFREY P. MILLER, ROBERT G. NATELSON & GUY I.
SEIDMAN, THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE (2010).
7 On whether those debates are, or could be, impressive today, consider J. MITCHELL
PICKERILL, CONSTITUTIONAL DELIBERATIONS IN CONGRESS (2004), and its review, Keith
E. Whittington, James Madison Has Left the Building, 72 U. CHI. L. REV. 1137 (2005).
8 Manning, supra note 1, at 6, 53, 54. To be clear, because Manning is writing the Supreme
Court Foreword, I do not mean to blame him for omitting a discussion of how Congress might
implement the Clause; but readers should not infer from its omission that there is nothing to say.
9 See 17 U.S. (4 Wheat.) 316, 409 (1819).
10 James Madison, Statement on the Grant of the First Charter of the Bank of the United
States (Feb. 2, 1791), in LEGISLATIVE AND DOCUMENTARY HISTORY OF THE BANK OF THE
UNITED STATES 39, 43 (M. St. Clair Clarke & D.A. Hall eds., 1832) [hereinafter Madison, Statement on the Bank]; see also Baude, supra note 4, at 1751–55.
11 30 ANNALS OF CONG. 896–99 (1817).
Electronic copy available at: http://ssrn.com/abstract=2523965
2014]
SHARING THE NECESSARY AND PROPER CLAUSE
41
powers including the Necessary and Proper Clause and the debate
started by the bill has been called “one of the most intense and important constitutional controversies in the history of the Republic.”12
And it was Representative Thaddeus Stevens who aired concerns
about Congress’s power to create a railroad corporation that would
exercise eminent domain power in the states.13 (Stevens was not concerned about Congress’s power in the Territories, where the Necessary
and Proper Clause was not in play.14)
While Congress sometimes took the lead in expounding the scope of
the Necessary and Proper Clause, it did not go it alone. For instance,
the President was involved over and over again — President George
Washington deliberated with his cabinet on the constitutionality of the
national bank;15 President Andrew Jackson resurrected the constitutional objections in his veto message twenty-one years later;16 thenPresident Madison vetoed the “Bonus Bill” on constitutional grounds;17
and President James Monroe18 and others19 subsequently exercised internal-improvements vetoes on constitutional grounds.
States have interpreted the clause too, sometimes with important
effects. The Kentucky and Virginia Resolutions opposed the Alien and
Sedition Acts, in substantial part on federalism grounds.20 Those resolutions have been described as “a public rallying point . . . ‘an integral
part of the Republican national campaign in 1800,’ a campaign that
the Republicans won decisively.”21 Of course there were other famous
state resolutions about federalism that were more ill-fated.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
12 DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801–
1809, at 260 (2001).
13 See Baude, supra note 4, at 1779 (citing sources).
14 Id.
15 See LEGISLATIVE AND DOCUMENTARY HISTORY OF THE BANK OF THE UNITED
STATES, supra note 10, at 86–112.
16 Andrew Jackson, Veto Message (July 10, 1832), in 2 A COMPILATION OF THE MESSAGES
AND PAPERS OF THE PRESIDENTS, 1789–1897, at 576 (James D. Richardson ed., 1897).
17 James Madison, Veto Message (Mar. 3, 1817), in 1 A COMPILATION OF THE MESSAGES
AND PAPERS OF THE PRESIDENTS, supra note 16, at 584; CURRIE, supra note 12, at 265–66.
18 James Monroe, Views of the President of the United States on the Subject of Internal Improvements (May 4, 1822), in 2 A COMPILATION OF THE MESSAGES AND PAPERS OF THE
PRESIDENTS, supra note 16, at 144; see also Baude, supra note 4, at 1769–70.
19 See DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: DEMOCRATS AND WHIGS,
1829–1861, at 9–28 (2005) (collecting examples).
20 James Madison, Virginia Resolutions of 1798, in 4 THE DEBATES IN THE SEVERAL
STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 528 (Jonathan
Elliot ed., 2d. ed. 1891); Thomas Jefferson, Kentucky Resolutions of 1798 and 1799, in 4 THE
DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL
CONSTITUTION, supra, at 540.
21 Josh Chafetz, Multiplicity in Federalism and the Separation of Powers, 120 YALE L.J. 1084,
1111 (2011) (book review) (footnote omitted) (quoting Adrienne Koch & Harry Ammon, The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties, 5 WM. & MARY Q. 145, 170 (1948)).
42
HARVARD LAW REVIEW FORUM
[Vol. 128:39
History suggests that Manning is quite right that judicial supremacy is not the original, best, or only approach to the clause. But the historical practice is also not one of congressional supremacy; it is one
where different officials have made substantive legal arguments as
part of the shared project of interpreting the limits of Congressional
power.
II. MCCULLOCH
The courts have shared the task of interpreting the Necessary and
Proper Clause too.22 Take, for instance, the decision in McCulloch v.
Maryland, which upheld the bank that Representative Madison had
opposed. McCulloch is now viewed as a canonical statement about the
scope of Congress’s powers under the Necessary and Proper Clause.
(Even Justice Thomas does not maintain that it was wrongly decided.23)
But McCulloch is subject to revisionism too: McCulloch is often
taught as a very nationalist opinion, and it was — but not entirely. At
the Founding there was a broad spectrum of possible positions about
the Necessary and Proper Clause. In McCulloch, the Court adopted a
generally broad and deferential test, and specifically rejected many of
the narrow readings, such as the argument that “necessary” meant “indispensable” or even “most direct and simple,”24 or the argument that
the clause should be read as diminishing Congress’s powers compared
to what they would have been without the clause.25 By doing so, the
Court picked a point toward the nationalist end of the spectrum.
But it did not go all the way to the end. That is demonstrated by
the Court’s reassurances that the means chosen by Congress must be
“plainly adapted to [their] end,” must “consist with the letter and spirit
of the constitution,”26 and must be “implied as incidental” rather than
“a great substantive and independent power.”27 While those limitations are probably less important than the broad deference adopted by
the rest of the opinion, they are still potentially important.
It is worth noting that these limitations echoed similar theories that
had been debated in Congress and the executive branch. The previous
bank debates between Representative Madison and the various members of Washington’s cabinet had also taken as common ground that
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
22 For a survey of early judicial review, see Keith E. Whittington, Judicial Review of Congress
Before the Civil War, 97 GEO. L.J. 1257 (2009).
23 See, e.g., United States v. Comstock, 560 U.S. 126, 158–80 (2010) (Thomas, J., dissenting)
(relying extensively on McCulloch); Gonzales v. Raich, 545 U.S. 1, 59–66 (2005) (Thomas, J.,
dissenting) (same).
24 17 U.S. (4 Wheat.) 316, 413 (1819).
25 Id. at 419–21.
26 Id. at 421.
27 Id. at 411.
2014]
SHARING THE NECESSARY AND PROPER CLAUSE
43
the Necessary and Proper Clause extended only to incidental powers,
and not potentially great ones.28
While Manning says that the “great powers” test “was not central
to McCulloch’s analysis,”29 it is also worth noting that these limitations
provide important support for the McCulloch Court’s otherwise broad
reading of the clause. The outer limits provide a backstop against
what would otherwise be a potentially unacceptable consequence of
the broad deference.
For instance, even arch-nationalist Charles Black once conceded
that the Constitution would not allow Congress to require state gover30
nors to be confirmed by the U.S. Senate. I suspect that most people
would make a similar concession. So long as that is true, the limiting
principles provide support for an interpretation of the clause that is
broader in other ways: If the clause cannot be interpreted to allow certain extreme exercises of power, and if the limiting principles are
abandoned, then the clause would instead have to be interpreted to
have a tighter connection between means and ends, a review of legislative purpose, or something else.
Hence, while Manning repeatedly notes that his theory of judicial
deference has roots in McCulloch,31 he is right to acknowledge that the
Court’s less deferential review does too.32 I would emphasize the
point: McCulloch contains both a deferential standard and limiting
principles. The post–New Deal Court emphasized the deferential
standard; the Court’s more recent decisions have also emphasized the
limiting principles.
So the most widely accepted case about the Necessary and Proper
Clause does not tell us whether to prefer the current era of Alden v.
Maine, Printz v. United States, and Free Enterprise Fund v. Public
Company Accounting Oversight Board33 or the earlier era of Buckley v.
Valeo, Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,
and INS v. Chadha.34 It may well be that the more recent decisions
do reflect a difference in emphasis, in attitude, even in substantive interpretive methodology.35 It may also be that some of them are
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
28
29
30
See sources cited supra notes 10–12, 15; see also Baude, supra note 4, at 1751–53.
Manning, supra note 1, at 59 n.349.
Charles L. Black, Jr., Foreword: The Myth and Reality of Federalism, 9 U. TOL. L. REV.
615, 616 (1978) (“The subjection of state Governors to confirmation by the United States Senate
would have been evidently instrumental to national interest, in the days of the civil rights
struggle, but no one even thought of such a step.”). On Black as an arch-nationalist, see Charles
L. Black, Jr., On Worrying About the Constitution, 55 U. COLO. L. REV. 469, 471–72, 485–86
(1984).
31 Manning, supra note 1, at 9–11, 14, 20, 66.
32 Id. at 42, 54–55.
33 Criticized in id. at 33–39, 43–48.
34 Defended in id. at 31, 79.
35 See generally id. at 30–48.
44
HARVARD LAW REVIEW FORUM
[Vol. 128:39
wrongly decided, by whatever the correct methodology is. But those
possibilities are not settled, or even indicated, by McCulloch.
III. DOES THE TEXT CHALLENGE THIS HISTORY?
I have recounted the tradition of the Necessary and Proper Clause
in a slightly different way than Manning has, but I am not sure that he
would really disagree with the account. While he repeatedly invokes
McCulloch, the core of his argument is not that the Roberts Court is
misreading that case, but rather that the Court is misreading the text
of the Necessary and Proper Clause. That is an important charge, but
I am not sure that it sticks.
Manning’s textual argument has two essential moves. First, the
Necessary and Proper Clause is an “empty standard,” meaning that
somebody must exercise significant interpretive discretion. Second, the
text of the clause indicates that Congress should be the one to exercise
that discretion. For now, let’s accept the first move,36 and ask whether
the text necessarily yields the second.
At the outset it is helpful to remember the historical context of the
clause. In The Federalist both Hamilton and Madison defended the
clause as doing nothing more than restating what would have been
rightly implied from Congress’s other enumerated powers. Hamilton
called it “declaratory,” “chargeable with tautology or redundancy,” and
“at least perfectly harmless.”37 Madison said that it was the same as if
“the Constitution [had] been silent on this head.”38 And while it has
been pointed out that one should use The Federalist with “no small
degree of caution,”39 it is nonetheless “a valuable resource for making
sense of other evidence of meaning.”40 This suggests that we should
not lightly assume that the text of the clause commits us to a historically contested form of judicial deference.
And indeed, the text can be read in multiple ways. Consider first
the “vertical” Necessary and Proper Clause, which authorizes Congress
to enact “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”41 Manning places some weight on
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
36
37
On whether the Clause is really an empty standard, see infra Part IV.
THE FEDERALIST NO. 33, at 158 (Alexander Hamilton) (George W. Carey & James
McClellan eds., 2001).
38 THE FEDERALIST NO. 44, supra note 37, at 234–35 (James Madison).
39 John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication,
66 GEO. WASH. L. REV. 1337, 1358 (1998).
40 Id. at 1360. For other evidence consistent with The Federalist’s view, see Randy E. Barnett,
The Original Meaning of the Necessary and Proper Clause, 6 U. PA. J. CONST. L. 183, 185–87
(2003); see also Madison, Statement on the Bank, supra note 10, at 42.
41 U.S. CONST. art. I, § 8, cl. 18.
2014]
SHARING THE NECESSARY AND PROPER CLAUSE
45
the fact that the clause “identifies Congress as the recipient of that
power,” though he admits that it is not a decisive point.42
I would go further: The fact that one entity possesses a power tells
us nothing about whether that entity should receive any deference in
interpreting that power. To be sure, those who exercise power will
usually take the first cut at interpreting their own authority, but that
tells us nothing about who gets the final say.
For instance, one could reverse Manning’s logic to argue that states
should be given deference in interpreting the scope of the Tenth
Amendment since they are identified as possessors of the reserved
power.43 But because the Tenth Amendment is the flipside of the
Necessary and Proper Clause, both views cannot be correct. We need
some other argument to decide whose views control.
In between these polar views of deference is the more conventional
view, also permitted by the text, that the scope of the Necessary and
Proper Clause is simply an ordinary question of constitutional interpretation, subject to the ordinary standard of judicial review. Here is
Madison again:
If it be asked what is to be the consequence, in case the Congress shall
misconstrue [the Necessary and Proper Clause], and exercise powers not
warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power
had been reduced to particulars, and any one of these were to be violated;
the same, in short, as if the State legislatures should violate the irrespective constitutional authorities. In the first instance, the success of the
usurpation will depend on the executive and judiciary departments, which
are to expound and give effect to the legislative acts . . . .44
Maybe Madison is wrong, but I do not see how the text says so.
Manning also argues that the specification of Congress is especially
relevant because the Necessary and Proper Clause “is a kind of master
clause — one that is directed explicitly at the allocation of [constitu–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
42
43
Manning, supra note 1, at 62.
U.S. CONST. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
Cf. Kurt T. Lash, The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty, and “Expressly” Delegated Power, 83 NOTRE DAME L. REV. 1889, 1954 (2008) (discussed
in Manning, supra note 1, at 60 n.353); Gary Lawson, Legal Indeterminacy: Its Cause and Cure,
19 HARV. J.L. & PUB. POL’Y 411, 426 (1996) (“[T]he first allocation of the burden of proof always
will be on the federal government to prove that it is not acting ultra vires.”).
44 THE FEDERALIST NO. 44, supra note 37, at 235 (emphases added). Madison went on to
say “and in the last resort a remedy must be obtained from the people who can, by the election of
more faithful representatives, annul the acts of the usurpers.” Id. This can be seen as a nod toward what we would now call the “political safeguards of federalism.” See Manning, supra note
1, at 67 n.398 (citing sources). But notice that Madison lists it as an adjunct to judicial review, not
a replacement. Accord Bradford R. Clark, Essay, Putting the Safeguards Back into the Political
Safeguards of Federalism, 80 TEX. L. REV. 327, 339–41 (2001).
46
HARVARD LAW REVIEW FORUM
[Vol. 128:39
tional] decisionmaking authority.”45 Yet one could just as easily see
the clause as servant, rather than master, including only incidental
powers to effectuate the others. As a “servant clause,” it would authorize Congress to implement other constitutional powers without altering the broad outline of congressional or judicial power. The historical statements about the clause being tautologous and redundant and
excluding great powers seem to point to this more modest reading.
The question of whether the Necessary and Proper Clause is to be
a master clause or a servant clause arises again in Manning’s supplementary textual argument about the separation of powers. The “horizontal” component of the clause authorizes Congress “to make all
Laws which shall be necessary and proper for carrying into Execution
. . . all other Powers vested by this Constitution . . . in any Department
or Officer [of the U.S. government.]”46 Manning reads it this way: “as
long as Congress acts constitutionally, the clause gives it express
priority over the coordinate branches as implementer-in-chief.”47
But, again, that is not the only reading. One can instead read the
requirement that the law be “proper for carrying into execution” the
executive power as a requirement that the law be in aid or support of
the President’s constitutional judgment about what is proper. As Professors Sai Prakash and Michael Ramsey have put it: “Since it is derivative of the President’s power, it must be exercised in coordination
with, and not in opposition to, the President.”48
The text can be read to impose similar limits on the scope of Congress’s power to make laws “necessary and proper for carrying into
Execution” the power of the federal courts. While the clause has long
been read to establish Congress’s power to create procedural rules,49
the text does not seem to take a position on whether those rules can be
valid when in opposition to the Supreme Court’s own judgment about
how to implement the judicial power.50 Again my point is not that
these more limited readings of the horizontal Necessary and Proper
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
45
46
47
48
Manning, supra note 1, at 63.
U.S. CONST. art. I, § 8, cl. 18.
Manning, supra note 1, at 65.
Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs,
111 YALE L.J. 231, 256 (2001).
49 Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825).
50 Cf. Kansas v. Colorado, 556 U.S. 98, 110 (2009) (Roberts, C.J., concurring) (declaring that
Supreme Court, rather than Congress, has ultimate power to set procedures in original jurisdiction cases). For restrictions on the powers of lower courts, as with restrictions on the powers of
statutory officers, Congress’s implementing powers might be bolstered by the fact that it is the
one that creates them.
2014]
SHARING THE NECESSARY AND PROPER CLAUSE
47
Clause are necessarily right.51 But they are plausible, and the text itself does not tell us how to choose between them.
Ultimately, the text of the Necessary and Proper Clause just does
not speak with enough specificity to address the question Manning is
interested in. The Court, Manning, and I all agree that ultimately
judgments under the clause must be shared: The clause has limits that
the Court should enforce. Congress has power to make its own choices
within those limits.
Manning’s disagreement with the Court rests on his proposed
standard of review — that the Court should displace Congress’s judgments only when the latter are “unreasonable.”52 But the choice of
that reasonableness standard, as opposed to any other possible standard of review, is more fine-grained than the text. From the text we can
infer that Congress has the power to enact, and the Court has the
power to judge. It does not say how broad, or how stringently.
IV. MUDDLING THROUGH
Manning concludes: “The Constitution came out unfinished. It includes a great many specific clauses that structure, limit, and prescribe
procedures for the exercise of the powers it confers. But it also leaves
a lot blank.”53
True. I would submit that one of those things that the Constitution
leaves blank is how the Court should review Congress’s exercises of
power under the Necessary and Proper Clause. Ultimately, there is no
textual bar to simply muddling through interbranch and intergovernmental disputes about constitutional meaning the way we have done
for centuries.
At the same time, I am not sure that the process of muddling
through is inevitably as formless as Manning sometimes hints it is.
Let’s return briefly to Manning’s first charge, that the clause is an
“empty standard.” Many theories of interpretation have the power to
put flesh on the bones of the constitutional text. One example, as I’ve
mentioned, is a historical approach. Behind the text lie background
principles of law that can inform the meaning of its vague provisions,
such as the scope of legislative, executive, and judicial power.54 And
beyond the Founding era, subsequent historical practice, like judicial
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
51 For the classic view, see 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 (1975).
52 Manning, supra note 1, at 79.
53 Id. at 83.
54 See Stephen E. Sachs, Constitutional Backdrops, 80 GEO. WASH. L. REV. 1813, 1859–75
(2012).
48
HARVARD LAW REVIEW FORUM
[Vol. 128:39
precedent, can also serve to “liquidate” or fix the meaning of opentextured constitutional phrases.
Manning has put it aptly in previous writing: “the most important
factor in assessing the [Necessary and Proper C]lause’s present meaning may be, in Madison’s words, the way it came to be ‘liquidated’
over time.”55 Liquidation (think “liquidated damages”) was a term for
settling the meaning of a contested or vague legal provision through
practice.56 As the founding generation and its successors wrestled with
and ultimately coordinated on the text’s meaning, liquidation could
give clarity or stability that the bare text might lack.
We just don’t know yet how much that inquiry will yield, and
what the answers will be.57 Much of the post-Founding discussion relevant to these questions will probably be found in congressional and
executive materials, not case law, and nobody has yet systematically
perused those materials with the relevant “revisionist” lens.58 And historical inquiry might also tell us how much clarity to demand when
the Court is engaged in judicial review.59
Of course, there are other substantive methods of constitutional interpretation too, and those could also provide alternative answers to
the questions of congressional power or judicial review. But in any
event, completing the unfinished Necessary and Proper Clause may
just remain a shared project of Congress, the courts, and others.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
55 John F. Manning, The Necessary and Proper Clause and Its Legal Antecedents, 92 B.U. L.
REV. 1349, 1375 (2012) (book review).
56 See Baude, supra note 4, at 1811–12; Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 VA. L. REV. 1, 10–14 (2001).
57 Accord Manning, supra note 1, at 80 (“Perhaps support for some of the Court’s holdings remains to be found in parts of the historical record it has yet to explore.”).
58 One such example, eminent domain, was the focus of Baude, supra note 4. The fact that
much of the analysis happened outside the courts is a response to Manning’s observation that the
concept of great powers does not appear in many Supreme Court cases. Manning, supra note 1,
at 59 n.349.
59 Cf. Sachs, supra note 54, at 1868; John O. McGinnis, Is Judicial Deference Part of the
Originalist Method? (unpublished manuscript) (on file with the author).
Readers with comments may address them to:
Professor William Baude
University of Chicago Law School
1111 East 60th Street
Chicago, IL 60637
[email protected]
The University of Chicago Law School
Public Law and Legal Theory Working Paper Series
For a listing of papers 1–400 please go to http://www.law.uchicago.edu/publications/papers/publiclaw.
401.
402.
403.
404.
405.
406.
407.
408.
409.
410.
411.
412.
413.
414.
415.
416.
417.
418.
419.
420.
421.
422.
423.
424.
425.
426.
427.
428.
429.
430.
431.
432.
Gary Becker, François Ewald, and Bernard Harcourt, “Becker on Ewald on Foucault on
Becker” American Neoliberalism and Michel Foucauilt’s 1979 Birth of Biopolitics
Lectures, September 2012
M. Todd Henderson, Voice versus Exit in Health Care Policy, October 2012
Aziz Z. Huq, Enforcing (but Not Defending) “Unconstitutional” Laws, October 2012
Lee Anne Fennell, Resource Access Costs, October 2012
Brian Leiter, Legal Realisms, Old and New, October 2012
Tom Ginsburg, Daniel Lnasberg-Rodriguez, and Mila Versteeg, When to Overthrow
Your Government: The Right to Resist in the World’s Constitutions, November 2012
Brian Leiter and Alex Langlinais, The Methodology of Legal Philosophy, November
2012
Alison L. LaCroix, The Lawyer’s Library in the Early American Republic, November
2012
Alison L. LaCroix, Eavesdropping on the Vox Populi, November 2012
Alison L. LaCroix, On Being “Bound Thereby,” November 2012
Alison L. LaCroix, What If Madison had Won? Imagining a Constitution World of
Legislative Supremacy, November 2012
Jonathan S. Masur and Eric A. Posner, Unemployment and Regulatory Policy, December
2012
Alison LaCroix, Historical Gloss: A Primer, January 2013
Jennifer Nou, Agency Self-Insulation under Presidential Review, January 2013
Aziz Z. Huq, Removal as a Political Question, February 2013
Adam B. Cox and Thomas J. Miles, Policing Immigration, February 2013
Anup Malani and Jonathan S. Masur, Raising the Stakes in Patent Cases, February 2013
Ariel Porat and Lior Strahilevits, Personalizing Default Rules and Disclosure with Big
Data, February 2013
Douglas G. Baird and Anthony J. Casey, Bankruptcy Step Zero, February 2013
Alison L. LaCroix, The Interbellum Constitution and the Spending Power, March 2013
Lior Jacob Strahilevitz, Toward a Positive Theory of Privacy Law, March 2013
Eric A. Posner and Adrian Vermeule, Inside or Outside the System? March 2013
Nicholas G. Stephanopoulos, The Consequences of Consequentialist Criteria, March
2013
Aziz Z. Huq, The Social Production of National Security, March 2013
Aziz Z. Huq, Federalism, Liberty, and Risk in NIFB v. Sebelius, April 2013
Lee Anne Fennell, Property in Housing, April 2013
Lee Anne Fennell, Crowdsourcing Land Use, April 2013
William H. J. Hubbard, An Empiritcal Study of the Effect of Shady Grove v. Allstate on
Forum Shopping in the New York Courts, May 2013
Daniel Abebe and Aziz Z. Huq, Foreign Affairs Federalism: A Revisionist Approach,
May 2013
Albert W. Alschuler, Lafler and Frye: Two Small Band-Aids for a Festering Wound,
June 2013
Tom Ginsburg, Jonathan S. Masur, and Richard H. McAdams, Libertarian Paternalism,
Path Dependence, and Temporary Law, June 2013
Aziz Z. Huq, Tiers of Scrutiny in Enumerated Powers Jurisprudence, June 2013
433.
434.
435.
436.
437.
438.
439.
440.
441.
442.
443.
444.
445.
446.
447.
448.
449.
450.
451.
452.
453.
454.
455.
456.
457.
458.
459.
460.
461.
462.
463.
Bernard Harcourt, Beccaria’s On Crimes and Punishments: A Mirror of the History of
the Foundations of Modern Criminal Law, July 2013
Zachary Elkins, Tom Ginsburg, and Beth Simmons, Getting to Rights: Treaty
Ratification, Constitutional Convergence, and Human Rights Practice, July 2013
Christopher Buccafusco and Jonathan S. Masur, Innovation and Incarceration: An
Economic Analysis of Criminal Intellectual Property Law, July 2013
Rosalind Dixon and Tom Ginsburg, The South African Constitutional Court and SocioEconomic Rights as 'Insurance Swaps', August 2013
Bernard E. Harcourt, The Collapse of the Harm Principle Redux: On Same-Sex Marriage,
the Supreme Court’s Opinion in United States v. Windsor, John Stuart Mill’s essay On
Liberty (1859), and H.L.A. Hart’s Modern Harm Principle, August 2013
Brian Leiter, Nietzsche against the Philosophical Canon, April 2013
Sital Kalantry, Women in Prison in Argentina: Causes, Conditions, and Consequences,
May 2013
Becker and Foucault on Crime and Punishment, A Conversation with Gary Becker,
François Ewald, and Bernard Harcourt: The Second Session, September 2013
Daniel Abebe, One Voice or Many? The Political Question Doctrine and Acoustic
Dissonance in Foreign Affairs, September 2013
Brian Leiter, Why Legal Positivism (Again)? September 2013
Nicholas Stephanopoulos, Elections and Alignment, September 2013
Elizabeth Chorvat, Taxation and Liquidity: Evidence from Retirement Savings,
September 2013
Elizabeth Chorvat, Looking Through' Corporate Expatriations for Buried Intangibles,
September 2013
William H. J. Hubbard, A Theory of Pleading, Litigation, and Settlement, November
2013
Tom Ginsburg, Nick Foti, and Daniel Rockmore, “We the Peoples”: The Global Origins
of Constitutional Preambles, March 2014
Lee Anne Fennell and Eduardo M. Peñalver, Exactions Creep, December 2013
Lee Anne Fennell, Forcings, December 2013
Jose Antonio Cheibub, Zachary Elkins, and Tom Ginsburg, Beyond Presidentialism and
Parliamentarism, December 2013
Nicholas Stephanopoulos, The South after Shelby County, October 2013
Lisa Bernstein, Trade Usage in the Courts: The Flawed Conceptual and Evidentiary Basis
of Article 2’s Incorporation Strategy, November 2013
Tom Ginsburg, Political Constraints on International Courts, December 2013
Roger Allan Ford, Patent Invalidity versus Noninfringement, December 2013
M. Todd Henderson and William H.J. Hubbard, Do Judges Follow the Law? An
Empirical Test of Congressional Control over Judicial Behavior, January 2014
Aziz Z. Huq, Does the Logic of Collective Action Explain Federalism Doctrine? January
2014
Alison L. LaCroix, The Shadow Powers of Article I, January 2014
Eric A. Posner and Alan O. Sykes, Voting Rules in International Organizations, January
2014
John Rappaport, Second-Order Regulation of Law Enforcement, April 2014
Nuno Garoupa and Tom Ginsburg, Judicial Roles in Nonjudicial Functions, February
2014
Aziz Huq, Standing for the Structural Constitution, February 2014
Jennifer Nou, Sub-regulating Elections, February 2014
Albert W. Alschuler, Terrible Tools for Prosecutors: Notes on Senator Leahy’s Proposal
to “Fix” Skilling v. United States, February 2014
464.
465.
466.
467.
468.
469.
470.
471.
472.
473.
474.
475.
476.
477.
478.
479.
480.
481.
482.
483.
484.
485.
486.
487.
488.
489.
490.
491.
492.
493.
494.
495.
496.
Aziz Z. Huq, Libertarian Separation of Powers, February 2014
Brian Leiter, Preface to the Paperback Edition of Why Tolerate Religion? February 2014
Jonathan S. Masur and Lisa Larrimore Ouellette, Deference Mistakes, March 2014
Eric A. Posner, Martii Koskenniemi on Human Rights: An Empirical Perspective, March
2014
Tom Ginsburg and Alberto Simpser, Introduction, chapter 1 of Constitutions in
Authoritarian Regimes, April 2014
Aziz Z. Huq, Habeas and the Roberts Court, April 2014
Aziz Z. Huq, The Function of Article V, April 2014
Aziz Z. Huq, Coasean Bargaining over the Structural Constitution, April 2014
Tom Ginsburg and James Melton, Does the Constitutional Amendment Rule Matter at
All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty, May
2014
Eric A. Posner and E. Glen Weyl, Cost-Benefit Analysis of Financial Regulations: A
Response to Criticisms, May 2014
Paige A. Epstein, Addressing Minority Vote Dilution Through State Voting Rights Acts,
February 2014
William Baude, Zombie Federalism, April 2014
Albert W. Alschuler, Regarding Re’s Revisionism: Notes on "The Due Process
Exclusionary Rule", May 2014
Dawood I. Ahmed and Tom Ginsburg, Constitutional Islamization and Human Rights:
The Surprising Origin and Spread of Islamic Supremacy in Constitutions, May 2014
David Weisbach, Distributionally-Weighted Cost Benefit Analysis: Welfare Economics
Meets Organizational Design, June 2014
William H. J. Hubbard, Nuisance Suits, June 2014
Saul Levmore and Ariel Porat, Credible Threats, July 2014
Brian Leiter, The Case Against Free Speech, June 2014
Brian Leiter, Marx, Law, Ideology, Legal Positivism, July 2014
John Rappaport, Unbundling Criminal Trial Rights, August 2014
Daniel Abebe, Egypt, Ethiopia, and the Nile: The Economics of International Water Law,
August 2014
Albert W. Alschuler, Limiting Political Contributions after Mccutcheon, Citizens
United, and SpeechNow, August 2014
Zachary Elkins, Tom Ginsburg, and James Melton, Comments on Law and Versteeg's
“The Declining Influence of the United States Constitution,” August 2014
William H. J. Hubbard, The Discovery Sombrero, and Other Metaphors for
Litigation, September 2014
Genevieve Lakier, The Invention of Low-Value Speech, September 2014
Lee Anne Fennell and Richard H. McAdams, Fairness in Law and Economics:
Introduction, October 2014
Thomas J. Miles and Adam B. Cox, Does Immigration Enforcement Reduce Crime?
Evidence from 'Secure Communities', October 2014
Ariel Porat and Omri Yadlin, Valuable Lies, October 2014
Laura M. Weinrib, Civil Liberties outside the Courts, October 2014
Nicholas Stephanopoulos and Eric McGhee, Partisan Gerrymandering and the Efficiency
Gap, October 2014
Nicholas Stephanopoulos, Aligning Campaign Finance Law, October 2014
John Bronsteen, Christopher Buccafusco and Jonathan S. Masur, Well-Being and Public
Policy, November 2014
Lee Anne Fennell, Agglomerama, December 2014
497.
498.
499.
500.
501.
502.
503.
504.
505.
506.
507.
508.
509.
Avital Mentovich, Aziz Z. Huq, and Moran Cerf, The Psychology of Corporate Rights,
December 2014
Lee Anne Fennell and Richard H. McAdams, The Distributive Deficit in Law and
Economics, January 2015
Omri Ben-Shahar and Kyle D. Logue, Under the Weather: Government Insurance and the
Regulation of Climate Risks, January 2015
Adam M. Samaha and Lior Jacob Strahilevitz, Don't Ask, Must Tell—and Other
Combinations, January 2015
Eric A. Posner and Cass R. Sunstein, Institutional Flip-Flops, January 2015
Albert W. Alschuler, Criminal Corruption: Why Broad Definitions of Bribery Make
Things Worse, January 2015
Jonathan S. Masur and Eric A. Posner, Toward a Pigovian State, February 2015
Richard H. McAdams, Vengeance, Complicity and Criminal Law in Othello, February
2015
Richard H. McAdams, Dhammika Dharmapala, and Nuno Garoupa, The Law of Police,
February 2015
William Baude, Sharing the Necessary and Proper Clause, November 2014
William Baude, State Regulation and the Necessary and Proper Clause, December
2014
William Baude, Foreword: The Supreme Court's Shadow Docket, January 2015
Lee Fennell, Slicing Spontaneity, February 2015