Volume 102 - Issue 4 Georgetown Law Journal

The Necessary and Proper Clauses

The main purpose of this Article is to provide a new and more accurate account of the origins of the Necessary and Proper Clauses. I refer to the Necessary and Proper “Clauses” rather than to the Necessary and Proper “Clause” to emphasize that the relevant text of the Constitution is comprised of three distinct provisions, only the first of which refers to the enumerated powers in Article I, Section 8:

1. “Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

2. “Congress shall have 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”

3. “Congress shall have Power . . . 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 United States]”

James Wilson was probably the most skilled and accomplished lawyer at the constitutional convention, and he devoted great care and attention to drafting these clauses as a member of the Committee of Detail. Just why he drafted these clauses in this manner and how they influenced the development of American law are the primary subjects of this Article and of the broader research project of which it forms a part.
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