Gary Lawson - The Origins of the Necessary and Proper Clause

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The Origins of the Necessary and Proper Clause

The Necessary and Proper Clause is one of the most important parts of the

U.S. Constitution. Today this short thirty-nine-word paragraph is cited as the legal foundation for much of the modern federal government. Yet constitutional scholars have pronounced its origins and original meaning a mystery.

Through three independent lines of research, the authors trace the lineage of the Necessary and Proper Clause to the everyday law of the founding era the same law that American founders such as Madison, Hamilton, and Washington applied in their daily lives. The origins of the Necessary and Proper Clause can be found in the founding-era law governing agency, public administration, and corporations. All of those areas were undergirded by common principles of fiduciary responsibility reflecting the founders view that a public office is truly a public trust. This explains the choice of language in the clause and provides clues about its meaning. This book thus serves as a reference source for scholars seeking to understand the intellectual foundations of one of the Constitutions most important clauses.

Gary Lawson is a professor of law and the Abraham and Lillian Benton Scholar at Boston University School of Law. Professor Lawson has authored (with Guy Seidman) The Constitution of Empire: Territorial Expansion and American Legal History , five editions of a casebook on Federal Administrative Law , and more than sixty articles in law reviews and other journals.

Geoffrey P. Miller is the Stuyvesant P. Comfort Professor of Law at New York University Law School. Miller is the director of NYU Law Schools Center for the Study of Central Banks and Financial Institutions and is a founder of the Society for Empirical Legal Studies.

Robert G. Natelson is Senior Fellow in Constitutional Jurisprudence at Independence Institute, and formerly professor of law at the University of Montana. He is an expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key back ground facts about the Constitutions meaning.

Guy I. Seidman is an assistant professor of law at the Interdisciplinary Center in Herzliya, Israel. He is a former visiting scholar at the University of Chicago and Northwestern University. Dr. Seidman is primarily interested in administrative and constitutional law, and in comparative law and legal traditions.

The Origins of the Necessary and Proper Clause

Gary Lawson

Boston University School of Law

Geoffrey P. Miller

New York University School of Law

Robert G. Natelson

Independence Institute

Guy I. Seidman

The Interdisciplinary Center, Herzliya, Israel

CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, So Paulo, Delhi, Dubai, Tokyo

Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org Information on this title: www.cambridge.org/9780521119580

Gary Lawson, Geoffrey Miller, Robert Natelson, and Guy I. Seidman 2010

This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published in print format 2010

ISBN-13 978-0-511-77672-4 eBook (NetLibrary)

ISBN-13 978-0-521-11958-0 Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

As with all things, to Patty, Nathaniel, and Noah.

Gary Lawson

March 2010

This book is dedicated in loving memory to my parents , Ady Seidman (19302009) and Lea Seidma n (n Carmi, 19341999) .

Guy Seidman

March 2010

Content s

Acknowledgments
	Raiders of the Lost Clause: Excavating the Buried Foundations of the Necessary and Proper Clause
	Discretionary Grants in Eighteenth-Century English Legislation Gary Lawson and Guy I. Seidman
	An Ocean Away: Eighteenth-Century Drafting in England and America Gary Lawson and Guy I. Seidman
	The Legal Origins of the Necessary and Proper Clause Robert G. Natelson
	The Framing and Adoption of the Necessary and Proper Clause Robert G. Natelson
	Necessity, Propriety, and Reasonableness Gary Lawson and Guy I. Seidman
	The Corporate Law Background of the Necessary and Proper Clause Geoffrey P. Miller
Index

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Acknowledgment s

Gary Lawson is grateful to Robert P. Smith for creating and funding the David Saul Smith Award, which was instrumental in producing this book. Professor Lawson is also grateful to the Abraham and Lillian Benton Fund for support and to participants at a workshop at Boston University School of Law for characteristically insightful comments. Portions of are based on material from Gary Lawson and Guy

I. Seidman, The Jeffersonian Treaty Clause , 2006 Ill. L. Rev. 1 (2006), and other portions of that chapter exist only because of the prior schol arship of Professor Robert G. Natelson.

Gary Lawson and Guy I. Seidman March 2010

A version of Geoffrey P. Millers chapter was previously published in The George Washington Law Review and is available at 79 Geo. Wash. L. Rev. 1 (2010). I wish to thank Sharae M. Wheeler for superb research assistance on this project.

Geoffrey P. Miller

March 2010

Among those deserving credit for my scholarship in general are my wife, Elizabeth J. Natelson, who over the years has supported my research in every way (including some sharp editing), and my parents, Dr. Sydney and Florence Natelson, who paid for my education. Most of this scholar ship was conducted while I was a faculty member at The University of Montana, and thus was made possible through the generous support of Montana taxpayers.

A number of people provided assistance specific to this book among them helpful and intelligent librarians, who located and guided me

ix

Acknowledgments

through the ancient sources: the staff and administration of the Bodleian Law Library, University of Oxford; Dr. Norma Aubertin-Potter, librarian-in-charge of the Codrington Library at All-Souls College, University of Oxford; Dr. Vanessa Hayward, keeper of the Middle Temple Library, London, and her staff; Ms. Virginia Dunn and the Archives Research Services staff at the Library of Virginia in Richmond; and Fritz Snyder, Stacey Gordon, Philip Cousineau, and Robert Peck, all at the Jameson Law Library at The University of Montana.

Finally, great credit goes to Gary Lawson, who conceived of this book, brought the contributors together, wrote much of it, and guided it to fruition.

Robert G. Natelson

Missoula, Montana

March 2010

Raiders of the Lost Clause

Excavating the Buried Foundations of th e Necessary and Proper Claus e