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6. The Necessary and Proper Clause

Article One, Section 8 of the Constitution enumerates the powers of Congress. The eighteenth and final entry says: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." When and how did this phrase make its appearance in the convention deliberations?

The necessary and proper clause is a constitutional compromise, one somewhere between the Federalist disposition not to enumerate any Congressional powers at all—a vital part of a wholly national arrangement—and the Antifederalist concern to limit the reach of Congress to those items expressly itemized

The Virginia Plan was wholly national in terms of powers. Of particular importance, here, is the absence of 1) an enumeration of Congressional powers whatsoever—Congress was empowered to legislate in all areas where the states were "incompetent"—and 2) a Bill of Rights on behalf of either the states or the people.

On July 17, the delegates agreed (6-4) to adhere to the "incompetent" powers provision of the Virginia Plan. This vote, however, should not be interpreted as a Madisonian victory; rather it is a prelude to his fourth serious defeat on the federal-national issue. Prior to July 17, the "incompetent" clause sailed through without more than a murmur of opposition. Now it was on its last gasp.

On August 6, the Committee of Detail presented the first draft of the Constitution and, the next day, the delegates began their deliberations of the 23 Articles. What is really significant about the report is that the powers of Congress are enumerated for the first time. On August 20, the delegates turned to the final enumerated power which had never before been part of the constitutional conversation: "And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested, by this Constitution, in the government of the United States, or in any department or officer thereof."

According to Madison's Notes, on August 20, the clause was read and then: "Mr. Madison and Mr. Pinckney moved to insert between "laws" and "necessary" "and establish all offices," it appearing to them liable to cavil that the latter was not included in the former."

It is unclear, however, what future "cavil" Madison and Pinckney hoped to avoid, but what is clear is that they thought that the clause, as at it stood, had the "potentiality" to undermine the ability of the nation to take care of itself. Apparently three members of the Committee of Detail thought it unnecessary to adopt the Madison-Pinckney amendment.

From September 12 to September 17, the delegates debated The Committee of Style Report; the necessary and proper clause received the most attention. One gets the impression, especially during the September 14 discussion, that the Framers were engaged in an initial "liquidation" of the meaning of the necessary and proper clause. An exchange on September 14 leaves us pondering what is included from what is excluded.

Mr. Madison and Mr. Pinckney then moved to insert in the list of powers vested in Congress a power—"to establish an University, in which no preferences or distinctions should be allowed on account of religion."

Mr. Wilson supported the motion.

Mr. Govr Morris. It was not necessary. The exclusive power at the Seat of Government will reach the object.

On the question, it was defeated Ayes 4, Noes 6, divided 1.