The last paragraph of Article I, Section 8 supports the position that the federal government’s authority ends at the limit of the enumerated powers, and any other specifically authorized power expressed in the Constitution. The words necessary and proper are also found in the list of enumerated powers again in Article I, Section 8. They are in the eighteenth power or clause. These too have been misinterpreted and looked to by those who feel that the federal government can be whatever it chooses to be, and as big as it wants to be. The eighteenth clause has been called the elastic clause, because it has been stretched to meet just about any direction the federal government moves.
Well, anyone bringing the “Necessary and Proper” clause to a neighborhood near you should also bring along some additional words – FOREGOING POWERS. We looked at foregoing powers in the “Myths of the ‘General Welfare’ Clause”. Progressives and big central government types have tried to use this “Necessary and Proper” clause over time to eliminate the states’ status in this Republic by conveniently quoting only a portion of the clause in support of their initiatives.
We should call this “foregoing powers” phrase the Rodney Dangerfield phrase, because it just does not get any respect.
Alexander Hamilton, a strong proponent of a powerful and vast federal government, was not only a Federalist, but also the founder of the Federalist Party (the big government party). Mr. Hamilton wrote heavily on the “necessary and proper” clause in The Federalist Papers. His defense of the insertion of the clause into the enumerated powers was based on protection of the federal government from the states trying to erode the federal government’s power. Yet his defense points to the specific powers found in Section 1, and not a broad ability to pass any law it pleases. In Federalist 31 he writes:
“And it is expressly to execute these powers that the sweeping clause, as it has been affectionately called, authorizes the national legislature to pass all necessary and proper laws. If there be anything exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated.”
James Madison also wrote extensively in The Federalist Papers on the reasons why necessary and proper were inserted. His point was that to enable the federal government to meet its obligation of providing for the enumerated powers, laws would have to be passed. This is similar to what Hamilton was saying. The federal government had to pass laws that were necessary and proper to deliver on the enumerated powers – the foregoing powers. Nowhere can founder’s support be found stating the that necessary and proper laws meant that the federal government could pass whatever it wishes; that it could depart from its limited charge of delivering on the enumerated powers.