Let us compare Hart's and Grice's analysis of legal language in connection with some alleged constitutional implicatures
The distinction Grice draws between entailment and implicature is exceedingly useful for analyzing the implications of everyday acts of communication like Professor Lessig’s letter to Judge Posner, as well as many other ordinary uses of language ("He dresses very smartly").
But can Grice's distinction be fruitfully applied to legal documents like the Constitution?
Of course it can!
At first glance, there would seem to be grounds for American (never British) scepticism on this score.
As Andrei Marmor has emphasized, Grice’s maxims are norms that apply most naturally in ordinary conversation, where the common aim of the participants is the co-operative exchange of information.
The basic model is a simple, bilateral conversation, where one person asserts a proposition (or perhaps asks a question) which says one thing but also communicates something else.
.
(Jerry A. Fodor, Psychological Explanation: An Introduction to the Philosophy of Psychology 153, n. 3 (1968) (“It is difficult to exaggerate the service Grice has performed by reviving and insisting upon what amounts to the distinction between semantic and pragmatic implication”. See Andrei Marmor, The Pragmatics of Legal Language, USC Legal Studies Research Paper No. 08-11, at 19; available on SSRN)
Whatever else is true about the Constitution, it does not seem to fit easily into this model of a simple, bilateral, cooperative conversation.
For one thing, the historical evidence suggests that the framers were often engaged in highly strategic behaviour when they selected what language to use in the Constitution.
Far from adhering to norms like “be brief and orderly,” “avoid ambiguity,’” “avoid obscurity of expression” and the like, the framers sometimes were deliberately verbose, ambiguous, or obscure in their choice of language, particularly when it came to controversial issues like slavery.
In the same vein, they often were less informative and cooperative than they could have been —again, deliberately and self-consciously so.
Likewise, they typically selected the language of particular clauses as result of political compromises.
Finally, some of their most intractable disagreements were settled by what Marmor calls tacitly acknowledged incomplete decisions.
Simply put, they left some issues for another day. And that day is TODAY.
For all these reasons, one might question whether Grice’s philosophy of language has much to teach us about the Italian Constitution.
Yet, upon further reflection, any conclusion of this nature may be overdrawn.
In many cases, Grice’s maxims appear to yield results that are identical or closely analogous to well-established canons of both statutory and constitutional interpretation, such as ejusdem generis, expressio unius, and the rule against surplusage.
Making explicit the precise norms that underlie these canons can thus be quite illuminating.
Grice’s categories of what a sentence means, what an utterer says, and what a speaker means reflect genuine conceptual differences, moreover, which can be applied to constitutions and other legal texts, in addition to everyday uses of language.
Significantly, the same is true of the distinction between entailment and implicature.
George William Van Cleve, A Slaveholders’ Union: Slavery, Politics, and the Constitution in the Early American Republic (2010).
The Constitution is shot through with implicatures, rather than entailments.
Carefully distinguishing the one from the other can be useful for many reasons—including getting clear on the fact that what is commonly referred to as the “original meaning” of the Constitution frequently turns on constitutional implicature, rather than "what is explicitly communicated" or “what is entailed” by constitutional provisions.
To appreciate this last point, consider a historically potent example: the Fugitive Slave Clause of Article IV.
This clause does not say or entail that fugitive slaves must be delivered up to their masters.
Instead, it says:
i. No person held to service or labour
in one state under the laws thereof, escaping into
another, shall in consequence of any law
or regulation therein, be discharged from
such service or labour; but shall be delivered up,
on claim of the party to whom such service or labor may be due.
In 1842, a plausible implicature of this clause may have been that it “secured to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state of the Union into which they might escape.”
Like all implicatures, however, this inference rests on assumptions that go well beyond the syntax and semantics of the particular expression at issue.
Moreover, the inference is cancelable.
The framers could have added the following language to the clause without contradiction:
“Nevertheless, slavery shall not exist in the United States, or in any place subject to its jurisdiction.”
If so, then the clause would naturally be interpreted to refer only to fugitive servants, of which there were many in 1787.
Daniel Webster, Lysander Spooner, and other northern opponents of the Slave Power made arguments along these lines in 1850, insisting that the constitution itself contains no requirement for the surrender of fugitive slaves."
U.S. Const. art. IV, sec. 2.
Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, __ (1842) (Story, J.).
In Grice’s terms, what they argued, in effect, was that constitutional implicatures involving slavery must be resolved in favour of justice and liberty.
Many constitutional provisions can be analysed in a similar fashion.
For example, the Eleventh Amendment reads:
ii.
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”
Does this amendment say or entail that federal courts lack jurisdiction to review state criminal convictions?
No, it does not, nor does it imply this, according to the Supreme Court’s decision in Cohens v. Virginia.
In a closely reasoned opinion, Chief Justice Marshall held that a writ of error to review a state criminal conviction was not a “suit in law or equity,” and that even if it were, the precise language of the Eleventh Amendment does not extend to suits “commenced or prosecuted against one of the United States” by one of its own citizens.
“The framers could have, but didn’t” form of argument on which Marshall implicitly relied in Cohens is familiar and commonplace.
In essence, all such arguments turn on the cancelability of Gricean implicature.
Consider finally the Vesting Clause of Article I, which reads:
iii. All legislative powers herein granted shall be vested in a Congress of the United States.
Does this clause limit Congress to the exercise of its enumerated powers?
With increasing frequency, it seems, many commentators appear to think so.
Lysander Spooner,
“A Defence for Fugitive Slaves Against the Acts of Congress of February 12, 1793, and September 18, 1850” reprinted in Randy E. Barnett, Constitutional Law: Cases in Context 187 (1st ed. 2008).
“A Defence for Fugitive Slaves Against the Acts of Congress of February 12, 1793, and September 18, 1850” reprinted in Randy E. Barnett, Constitutional Law: Cases in Context 187 (1st ed. 2008).
U.S. Const. amend. XI.
19 U.S. 264 (1821).
Id. at __. See generally John V. Orth, The Judicial Power of the United States: The Eleventh Amendment in American History 37-40 (1987); G. Edward White, The Marshall Court and Cultural Change, 1815-35, at 504-24 (1988).
U.S. Const. art. I, sec. 1.
Thus, one often encounters
claims like the following on popular legal blogs in connection with ongoing disputes over the scope of federal powers:
iv. Congress only has the powers ‘herein granted'.
v. The powers of Congress are only those herein granted.
vi. Per Article I, Section 1, Congress' law-making power is textually limited to the ‘legislative powers herein granted’.”
Yet the Vesting Clause does not say—nor does it entail—that Congress has only the powers that are “herein granted” to it in Article I or elsewhere in the Constitution.
Again, this may or may not be a plausible implication of this clause, but, if so, the implication in question is an implicature, not an entailment.
Grice’s test of cancelability is particularly revealing here:
vii.
All legislative powers herein granted shall be vested in a Congress of the United States.
In addition, Congress may exercise any powers it wishes, so long as it thinks they are necessary and proper.
All legislative powers herein granted shall be vested in a Congress of the United States.
In addition, Congress may exercise any powers it wishes, so long as it thinks they are necessary and proper.
viii.
All legislative powers herein granted shall be vested in a Congress of the United States. Congress shall also have whatever other powers are vested in the Swedish Parliament by the Swedish Constitution, now or at any time in the future.
All legislative powers herein granted shall be vested in a Congress of the United States. Congress shall also have whatever other powers are vested in the Swedish Parliament by the Swedish Constitution, now or at any time in the future.
ix. All legislative powers herein granted shall be vested in a Congress of the United States.
However, Congress may also prohibit anything it wants, if it violates the natural moral law or (which is the same thing) if the thought of it makes the man on the Clapham omnibus sick.
However, Congress may also prohibit anything it wants, if it violates the natural moral law or (which is the same thing) if the thought of it makes the man on the Clapham omnibus sick.
Randy Barnett, “Constitutionality and the Real Constitution,” The Volokh Conspiracy, September 22, 2009 (emphasis added).
Nicholas Rosenkranz, “Treaties Can Create Domestic Law of Their Own Force, But It Does Not Follow That Treaties Can Increase The Legislative Power of Congress,” The Volokh Conspiracy, Jan. 19, 2013 (emphasis added).
Michael Ramsey, “Curt Bradley on Bond v. United States (and my response),” The Originalism Blog, January 28, 2013 (emphasis added).
Logically, the fallacy here is to assume
“All A’s which are B’s are also C’s” entails “All A’s which are C’s are also B’s.”
From “All legislative powers [which are] herein granted are [also] vested in Congress,” one cannot infer that
“All legislative powers [which are] vested in Congress are [also] herein granted.”
“All A’s which are B’s are also C’s” entails “All A’s which are C’s are also B’s.”
From “All legislative powers [which are] herein granted are [also] vested in Congress,” one cannot infer that
“All legislative powers [which are] vested in Congress are [also] herein granted.”
None of these vesting clauses is self-contradictory, and all of them effectively cancel the implication that Congress is “textually limited” to the other powers “herein granted” by the Constitution.
The inference that Congress is limited to these powers is not, therefore, part of the original meaning of the Vesting Clause, if that phrase is taken to extend only to the “sentence meaning” of that clause, or to what the clause says or entails.
With this background in mind, let us return to the problem we highlighted earlier.
What powers are vested by the Constitution in the Government of the United States?
For at least three reasons, it seems reasonable to expect a simple and straightforward answer to this question.
First, it has become a virtual axiom of legal and political philosophy that the United States is “a government of limited and enumerated powers.”
If the powers of government are enumerated, then it ought to be possible to enumerate them.
Second, one of the cornerstones of American federalism, the Tenth Amendment, also seems to require a clear answer to our question.
The Tenth Amendment declares that “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.”
To understand what powers are reserved by this amendment, one first needs to know what powers are delegated.
Third, the Constitution itself refers to “powers vested by this Constitution in the Government of the United States” in another important provision, the Necessary and Proper Clause, which declares that “Congress shall have Power . . . to make all Laws which shall be
New York v. United States, 505 U.S. 144, 156 (O’Connor, J.)
“‘Being an instrument of limited and enumerated powers, it follows irresistibly that what is not conferred is withheld, and belongs to the state authorities.’”) (quoting Joseph Story, 3 Commentaries on the Constitution of the United States 752 (1833)). See also, e.g., Steven G. Calabresi, “‘A Government of Limited and Enumerated Powers’: In Defense of United States v. Lopez,” 94 Mich. L. Rev. 752 (1995).
“‘Being an instrument of limited and enumerated powers, it follows irresistibly that what is not conferred is withheld, and belongs to the state authorities.’”) (quoting Joseph Story, 3 Commentaries on the Constitution of the United States 752 (1833)). See also, e.g., Steven G. Calabresi, “‘A Government of Limited and Enumerated Powers’: In Defense of United States v. Lopez,” 94 Mich. L. Rev. 752 (1995).
U.S. Const. amend. X.
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.”
To comprehend this language, one needs to grasp the meaning of its constituents – one of which is the very phrase that interests us.
For all of these reasons, then, one might naturally assume that it should be easy to provide a clear and convincing answer to the question with which we began.
What powers are vested by the Constitution in the Government of the United States?
Here is where the problems begin, and where sensitivity to the lessons Grice taught us reveals that what may look simple on the surface is actually rather complicated.
The question presented is not what powers the Constitution vests in Congress, but what powers it vests in the Government of the United States.
That these are different semantic categories follows from Grice’s maxims, as well as from any number of considerations.
The “stile” or official name of the federal government, which appears on the face of its laws, contracts, and treaties, is “The United States of America.”
Legally speaking, this government is a corporation, an ARTIFICIAL LEGAL PERSON endowed by its creators with various capacities, including the ability to endure in perpetual succession.
By common acknowledgement and established practice, the United States also has the power to sue and be sued; to enter into contracts; to fulfill its treaty obligations; to acquire, sell, hold, and lease property; to operate under a common seal; and a host of other unenumerated powers that are incidental to every corporation, unless they are explicitly denied or
U.S. CONST. art. I, § 8, cl. 18.
United States v. Maurice, 26 F. Cas. 1211, (1826) (Marshall, C. J.)
“The United States is a government, and, consequently, a body politic and corporate, capable of attaining the objects for which it was created, by the means which are necessary for their attainment.
This great corporation was ordained and established by the American people, and endowed by them with great powers for important purposes.”
“The United States is a government, and, consequently, a body politic and corporate, capable of attaining the objects for which it was created, by the means which are necessary for their attainment.
This great corporation was ordained and established by the American people, and endowed by them with great powers for important purposes.”
withheld by its constitution or articles of incorporation.
By contrast, the Congress of the United States is NOT an independent legal corporation, and it does not possess any of these properties.
Congress is a department of the Government of the United States, and it, too, is vested with certain powers by the Constitution, including, of course, the enumerated powers of Article I, Section 8.
All of these enumerated powers, and indeed every power vested in Congress or the other departments or officers of the United States, are also powers vested by the Constitution in the Government of the United States.
But Congress is not the same thing as the Government of the United States.
Nor, for that matter, are the President and two-thirds of the Senate.
he epigram to Moore’s Principia Ethica comes to mind here, and is directly on point. “Everything is what it is, and not another thing.”
The Constitution itself requires us to draw a distinction between the powers it vests in Congress or other Departments or Officers of the United States, on the one hand, and the powers it vests in the Government of the United States, on the other.
It does so in particularly noteworthy provision: the Necessary and Proper Clause.
Like the opening words of the Preamble, “We the People,” this clause was added to the Constitution by
See, e.g., Cotton v. United States, 52 U.S. (11 How.) 229, 231 (Grier, J.) (explaining that “as a corporation or body politic” the United States may bring lawsuits to enforce its contract and property rights).
Collectively, the President and two-thirds of the Senate have the power to make treaties under the authority of the United States, but they are not thereby the party to these treaties, any more than they—or the President, Congress, or any concatenation of the Departments and Officers of the United States—are the party at interest in debts contracted by the United States, lawsuits against the United States, or property owned by the United States.
The United States of America is a distinct LEGAL PERSON, with its own rights, duties, powers, and liabilities, which cannot be reduced to those of its departments or officers, or any combination thereof.
This fact must be kept in mind when interpreting the precise language of the Preamble, Necessary and Proper Clause, Tenth Amendment or other constitutional provisions which refer to the United States.
The United States of America is a distinct LEGAL PERSON, with its own rights, duties, powers, and liabilities, which cannot be reduced to those of its departments or officers, or any combination thereof.
This fact must be kept in mind when interpreting the precise language of the Preamble, Necessary and Proper Clause, Tenth Amendment or other constitutional provisions which refer to the United States.
G.E. Moore, Principia Ethica ii (1903). The quotation is taken from Joseph Butler.
James Wilson, one of the founding generation’s most sophisticated political theorists, and perhaps its most outspoken champion of implied national powers.
Contrary to a popular misconception, the three most significant words Wilson used in drafting this clause were not “necessary and proper” but “and all other”—a common formula by which “sweeping clauses” perform their essential function of canceling the implication that a list of items is exhaustive.
As many astute observers recognized at the time, Wilson’s sweeping clause is exceedingly complex, not only because it cancels the inference that Congress’s other Article I powers are exhaustive, but also because it implicitly differentiates no fewer than six distinct sets of powers vested by the Constitution in the Government of the United States, only some elements of which are clearly specified.
Because of this complexity, teasing apart the various powers given and reserved by the Constitution is no easy task—a feature of the document that Wilson and its other leading advocates often exploited during the campaign to ratify the Constitution, and that was not lost on its most perceptive critics.
Before the adoption of the Constitution, a distinction between the powers vested in Congress and the powers vested in the Government of the United States was not easily drawn.
For all intents and purposes, Congress and the Government of the United States were one and the same, a fact illustrated by the common use of the phrase
“the United States in Congress assembled”
in the Articles of Confederation and other American state
“the United States in Congress assembled”
in the Articles of Confederation and other American state
See generally John Mikhail, The Necessary and Proper Clauses, 102 Geo. L. J. 1045, 1106-1128 (2014).
Wilson’s Necessary and Proper Clause was one of the main reasons why three delegates to the constitutional convention—George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts—refused to sign the Constitution.
Along with the absence of a reserved powers clause, it also was one of the principal reasons why Brutus, An Old Whig, Federal Farmer, and other Antifederalists warned of the uncertain and potentially dangerous powers implicit in the Constitution. Id. at 1050-51.
Along with the absence of a reserved powers clause, it also was one of the principal reasons why Brutus, An Old Whig, Federal Farmer, and other Antifederalists warned of the uncertain and potentially dangerous powers implicit in the Constitution. Id. at 1050-51.
papers.
Moreover, federal authority did not rest on popular sovereignty, but on an agreement between the states.
In his early drafts of the Constitution for the Committee of Detail, Wilson managed to change all this, making clear
1) that “the United States of America” was the official name of a "government", not a confederation;
2) that “Congress” was the name of a department of that government, not the government itself
3) that the powers vested by the Constitution in Congress and the other Departments and Officers of the United States did not exhaust, but instead were merely a proper subset of, the powers vested by the Constitution in the Government of the United States.
1) that “the United States of America” was the official name of a "government", not a confederation;
2) that “Congress” was the name of a department of that government, not the government itself
3) that the powers vested by the Constitution in Congress and the other Departments and Officers of the United States did not exhaust, but instead were merely a proper subset of, the powers vested by the Constitution in the Government of the United States.
Finally, Wilson clarified that the ultimate source of political sovereignty was the people themselves.
The records of the Committee of Detail lend support to these conclusions and shed light on the subtleties of Wilson’s thought process.
For example, they indicate that Wilson toyed with different versions of the Preamble, all of which used the transformative language,
“We the People,”
before settling on the following version:
We the People of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia, do ordain declare and establish the following Constitution for the Government of ourselves and our Posterity.
See, e.g., Articles of Confederation of 1781, art V (“In determining questions in the United States in Congress assembled, each State shall have one vote”); id. at art VI (“nor shall the United States in Congress assembled, or any of them, grant any title of nobility”); id.
“No state shall engage in any war without the consent of the United States in Congress assembled”). See also, e.g., Declaration of Independence
“A Declaration by the Representatives of the United States of America in Congress Assembled, July 4, 1776”); id. at para 32 (“We, therefore, the representatives of the United States of America, in general Congress assembled….”).
“No state shall engage in any war without the consent of the United States in Congress assembled”). See also, e.g., Declaration of Independence
“A Declaration by the Representatives of the United States of America in Congress Assembled, July 4, 1776”); id. at para 32 (“We, therefore, the representatives of the United States of America, in general Congress assembled….”).
See 2 Farrand 150
“We the People of the States of New Hampshire & C do agree upon, ordain declare and establish the following Frame of Government as the Constitution of ‘the United States of America’ according to which we and our Posterity shall be governed under the Name and Stile of the ‘United States of America’”); id.
“We the People of the States of New Hampshire & C do ordain declare and establish the following Frame of Govt as the Constitution of the said United States”); id.
“We the People of the States of New Hampshire & C, already confederated united and known by the Stile of the “United States of America,” do ordain declare and establish the following Frame of Government as the Constitution of the said United States.”).
“We the People of the States of New Hampshire & C do agree upon, ordain declare and establish the following Frame of Government as the Constitution of ‘the United States of America’ according to which we and our Posterity shall be governed under the Name and Stile of the ‘United States of America’”); id.
“We the People of the States of New Hampshire & C do ordain declare and establish the following Frame of Govt as the Constitution of the said United States”); id.
“We the People of the States of New Hampshire & C, already confederated united and known by the Stile of the “United States of America,” do ordain declare and establish the following Frame of Government as the Constitution of the said United States.”).
Likewise, although he patterned the first two articles of his draft on their counterparts in the Articles of Confederation, Wilson made a pair of significant revisions along the way.
First, the “United States of America” became the official name of a “government”, not a confederation.
Second, the powers vested in the United States were now “supreme legislative, executive, and judicial powers”60 rather that only those expressly delegated.
First, the “United States of America” became the official name of a “government”, not a confederation.
Second, the powers vested in the United States were now “supreme legislative, executive, and judicial powers”60 rather that only those expressly delegated.
With respect to the national legislature, Wilson drafted multiple versions of what became the Vesting Clause of Article I, including one version that used the familiar phrase “U.S. in Congress assembled,” before declaring instead:
“The legislative Power shall be vested in a Congress, to consist of two separate and distinct Bodies of Men, a House of Representatives, and a Senate; each of which shall in all Cases, have a Negative on the other.”
Turning finally to the Necessary and Proper Clause, Wilson took John Rutledge’s initial draft of that clause, which had given Congress the power “to make all Laws necessary to carry the foregoing Powers into Execution,” and first revised and expanded it as follows.
“The legislative Power of the United States shall be vested in two Branches a Senate and a House of Representatives; each of which Bodies shall have a Negative on the other”); id.
“The legislative Power of the United States shall be vested in a general Assembly to consist of two separate and distinct Bodies of Men, the one to be called the House of Representatives, of the People of the United States and the other the Senate of the United States”); id at 152 (“The Supreme legislative Power of the United States shall be vested in a general Assembly to consist of two separate and distinct Bodies of Men, one to be called the House of Representatives, the other to be called the Senate, each of which shall in all Cases have a Negative on the other in all cases not otherwise provided for in this Constitution”); id. (“The legislative Power of the United States shall be vested in a general Assembly to consist of two separate and distinct Bodies of Men, a House of Representatives and a Senate, each of which shall in all Cases have a Negative on the other”).
The Legislature shall consist of two distinct Branches—a Senate and a House of Delegates, each of which shall have a Negative on the other, and shall be stiled the U.S. in Congress assembled.”
and to make all laws that shall be necessary and proper for carrying into full and complete execution the foregoing powers65
Wilson then added the crucial sweeping clause language (“and all other powers”) to Rutledge’s “foregoing powers’ provision, while taking care to differentiate the “other powers” vested in the Government of the United States from the “other powers” vested in its Departments or Officers:
and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof;
Perhaps because he thought it was superfluous, Wilson actually deleted Rutledge’s “foregoing powers” provision altogether, along with the phrase “full and complete.”
As a result, his draft of the Necessary and Proper Clause looked like this for a time:
As a result, his draft of the Necessary and Proper Clause looked like this for a time:
and to make all laws that shall be necessary and proper for carrying into execution all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof;
Nevertheless, Wilson or another committee member—or perhaps the full committee—later decided to put Rutledge’s “foregoing powers” language back into the Necessary and Proper Clause, while retaining Wilson’s “all other powers” provision.
Consequently, the version of the clause that the Committee of Detail presented to the convention on August 6 included both Rutledge’s “foregoing powers” provision and Wilson’s “all other powers” provision:
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;68
Apart from a few minor edits, this language is identical to the final version of the Necessary and Proper Clause that appears in the Constitution.
When one carefully examines the language of the Necessary and Proper Clause, it seems clear that one of its functions was to give Congress the instrumental power to carry into effect its other enumerated powers, while a second function was to cancel the implication that Congress’s “foregoing” enumerated powers were exhaustive.
The clause Wilson drafted did much more than this, however.
Just this much could have been achieved by means of a more targeted sweeping clause, which referred only to “all other powers” vested in Congress.
For example, Wilson could have achieved both of these ends using the following language:
Just this much could have been achieved by means of a more targeted sweeping clause, which referred only to “all other powers” vested in Congress.
For example, Wilson could have achieved both of these ends using the following language:
Alternative #1
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 Legislature of the United States.
Because he understood that Congress would need to carry into effect the powers vested in other parts of the federal government, Wilson also could have drafted a broader “all other powers” provision, which encompassed all of the government’s other departments and officers:
Alternative #2
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.
Finally, if Wilson had wanted to re-inforce the notion that all of the powers delegated to the Government of the United States are assigned to one or more of its departments or officers, he might have omitted the second provision entirely and drafted the full clause in this manner:
Alternative #3
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 any Department or Officer of the United States.
Each of these clauses is a genuine alternative to the Necessary and Proper Clause that Wilson could have drafted, but did not.
Moreover, each has its own unique set of implications, which
Moreover, each has its own unique set of implications, which
were evidently appealing to various political interests and factions at the time.
To understand why and to grasp what made critics of the Constitution anxious about the more complex
69 Alternative #1 is identical in relevant respects to a provision Pierce Butler of South Carolina drafted and may have proposed to the convention in late August, in an apparent effort to curtail the implications of the Necessary and Proper Clause. See Supplement to Max Farrand’s The Records of the Federal Convention of 1787, at 231 (James H. Hutson ed., 1987) (“And to make all Laws, not repugnant to this Constitution that may be necessary for carrying into execution the foregoing powers and such other powers as may be vested by this Constitution in the Legislature of the United States”).
Alternative #2 is identical to the abridged version of the Necessary and Proper Clause that appeared in the original version of Madison’s Federalist No. 44, which Madison never corrected until thirty years later, when the Gideon edition of The Federalist was published in 1818 after Madison had stepped down from the Presidency and retired from public life. See The Federalist No. 44, at 302 (James Madison) (Jacob E. Cooke ed., 1961)
(“The sixth and last class [of powers lodged in the general government] consist of the several powers and provisions by which efficacy is given to all the rest. ‘Of these the first is the power to make all laws which 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.’”); id. at 632 (listing the following edit supplied by Madison in 1818: “Or in any department or officer thereof”). By quoting only two of the three Necessary and Proper Clauses in his original published essay, Madison managed to convey the impression, or at least the potential implication, that all of the constitutional powers vested in the Government of the United States are delegated to one or more of its departments or officers.
(“The sixth and last class [of powers lodged in the general government] consist of the several powers and provisions by which efficacy is given to all the rest. ‘Of these the first is the power to make all laws which 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.’”); id. at 632 (listing the following edit supplied by Madison in 1818: “Or in any department or officer thereof”). By quoting only two of the three Necessary and Proper Clauses in his original published essay, Madison managed to convey the impression, or at least the potential implication, that all of the constitutional powers vested in the Government of the United States are delegated to one or more of its departments or officers.
Finally, Alternative #3 tracks in relevant respects the precise meaning of the Necessary and Proper Clause that was presupposed, and thus reinforced, by the reserved powers clauses that were offered as constitutional amendments by three of the most “Anti-federalist” state ratifying conventions: Virginia, New York, and North Carolina. See The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (Neil H. Cogan, ed. 1997), at 675 (Virginia, June 27, 1788) (“That each state in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Foederal Government.”) (emphasis added); id. at 674 (New York, July 26, 1788)
(“[T]hat every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same”) (emphasis added); id. at 675 (North Carolina, August 1, 1788) (“That each state in the union shall, respectively, retain every power, jurisdiction, and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.”) (emphasis added).
More importantly, Alternative #3 also tracks the meaning of the Necessary and Proper Clause that was presupposed, and thus reinforced by, the language of the original Tenth Amendment that Madison proposed to Congress on June 8, 1789. Id. at 662 (Proposal by Madison in House, June 8, 1789)
(“The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed….The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively”) (emphasis added).
Because all these proposals encompass only the powers vested in Congress and the other Departments and Officers of the United States, they leave no room for additional national powers implicitly delegated by the Constitution to the Government of the United States. Thus, these amendments would have deprived Wilson and the nationalists of the substantial victory they achieved when the Constitution was adopted.
(“[T]hat every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same”) (emphasis added); id. at 675 (North Carolina, August 1, 1788) (“That each state in the union shall, respectively, retain every power, jurisdiction, and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.”) (emphasis added).
More importantly, Alternative #3 also tracks the meaning of the Necessary and Proper Clause that was presupposed, and thus reinforced by, the language of the original Tenth Amendment that Madison proposed to Congress on June 8, 1789. Id. at 662 (Proposal by Madison in House, June 8, 1789)
(“The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed….The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively”) (emphasis added).
Because all these proposals encompass only the powers vested in Congress and the other Departments and Officers of the United States, they leave no room for additional national powers implicitly delegated by the Constitution to the Government of the United States. Thus, these amendments would have deprived Wilson and the nationalists of the substantial victory they achieved when the Constitution was adopted.
Madison’s effort to limit the scope of implied national powers in this manner has apparently been overlooked by historians, who tend to accept at face value his assurances that his amendments were meant to leave the powers of government untouched. See, e.g., Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic 285 (1995).
Madison’s effort was defeated when his prefatory language, stating that all the powers granted by the Constitution “are appropriated to the departments to which they are respectively distributed,” was first revised in such a way as to negate its intended implications, and then was struck altogether.
Later, Roger Sherman in the House and Oliver Ellsworth in the Senate each inserted the crucial phrase “to the United States” after the word “delegated” in Madison’s original proposal, thereby insuring that whatever implied national powers were vested in the 27
Madison’s effort was defeated when his prefatory language, stating that all the powers granted by the Constitution “are appropriated to the departments to which they are respectively distributed,” was first revised in such a way as to negate its intended implications, and then was struck altogether.
Later, Roger Sherman in the House and Oliver Ellsworth in the Senate each inserted the crucial phrase “to the United States” after the word “delegated” in Madison’s original proposal, thereby insuring that whatever implied national powers were vested in the 27
language that Wilson did in fact use, it is important to recognize that the Necessary and Proper Clause is comprised of three distinct provisions, not merely one or two.
To tease apart their full implications, a useful first step is to distinguish all three provisions and to assign them different names.
To tease apart their full implications, a useful first step is to distinguish all three provisions and to assign them different names.
Foregoing Powers Provision
“Congress shall have the Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”
Government Powers Provision
“Congress shall have the 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”71
Department or Officer Powers Provision:
“Congress shall have the 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]”
When read in the context of the other two provisions, the CENTRAL IMPLICATURE of the Government Powers Provision is that the “other powers” vested by the Constitution in the Government of the United States are not merely identical or co-extensive with the powers vested in Congress or other Departments or Officers of the United States.
Otherwise, the GPP is redundant and violates Grice’s cooperative maxims.
The conclusion that these “other” powers are not express but implied powers is not an implication of this provision in its own right; instead, it derives from the meaning of that provision, together with the fact that the Constitution does not expressly vest any powers in the Government of the United States as such, as distinct from its various departments or officers. The key language of the GPP that refers to “other powers vested by the
Otherwise, the GPP is redundant and violates Grice’s cooperative maxims.
The conclusion that these “other” powers are not express but implied powers is not an implication of this provision in its own right; instead, it derives from the meaning of that provision, together with the fact that the Constitution does not expressly vest any powers in the Government of the United States as such, as distinct from its various departments or officers. The key language of the GPP that refers to “other powers vested by the
Government of the United States by the Constitution would be preserved by the Tenth Amendment. See The Complete Bill of Rights, supra at __.
70 U.S. Const. art. I, sec. 8, cl. 18.
Constitution in the Government of the United States” must, therefore,
be taken to refer to implied powers.
The Foregoing Powers Provision adds a great deal of complexity to this picture.
On its face, the FPP affirms the existence of another set of powers—namely, those “which shall be necessary and proper for carrying into execution the foregoing powers” of Article I, Section 8. Like the implied powers of the Government of the United States to which the GPP refers, the content of these instrumental powers given by the FPP is left unspecified.
The language, structure, and context of its first two provisions thus point to at least two sets of unspecified powers given by the Necessary and Proper Clause.
The first is the set of implied powers vested by the Constitution in the Government of the United States to which the GPP refers.
The second is the set of unspecified powers given by the FPP to carry Congress’s “foregoing” enumerated powers into effect.
The language, structure, and context of its first two provisions thus point to at least two sets of unspecified powers given by the Necessary and Proper Clause.
The first is the set of implied powers vested by the Constitution in the Government of the United States to which the GPP refers.
The second is the set of unspecified powers given by the FPP to carry Congress’s “foregoing” enumerated powers into effect.
Are these two sets of powers coextensive?
Applying Grice’s maxims and the rule against surplusage, the best answer must be they are not.
The powers given by the FPP are vested directly in Congress, and on its face they are clearly meant to be instrumental to the exercise of the other enumerated powers in Article I, Section 8.
Although the latter are not ends-in-themselves, the powers given by the FPP thus stand to the enumerated powers as means to ends.
This relationship is asymmetrical.
Congress may utilize these unspecified powers if and only if it does so in order to carry into effect the enumerated powers, but not the other way around.
The unspecified powers given by the FPP might appropriately be called “subordinate” powers, therefore, because they are incidental or instrumental to the exercise of the enumerated powers.
Although the latter are not ends-in-themselves, the powers given by the FPP thus stand to the enumerated powers as means to ends.
This relationship is asymmetrical.
Congress may utilize these unspecified powers if and only if it does so in order to carry into effect the enumerated powers, but not the other way around.
The unspecified powers given by the FPP might appropriately be called “subordinate” powers, therefore, because they are incidental or instrumental to the exercise of the enumerated powers.
By contrast, the unspecified
powers to which the GPP refers are vested in the first instance in the Government of the United States, and they are not necessarily subordinate to the other enumerated powers of Article I, Section 8. Moreover, it seems clear that they cannot be subordinate to these powers, for at least two reasons. First, if these powers were subordinate to the enumerated powers, then they already would be encompassed by the FPP.
Thus, the GPP would be redundant, and Grice’s maxims would be violated again.
Second, the language of the third provision of the Necessary and Proper Clause—the Department or Officer Powers Provision—evidently presupposes a background principle, according to which the legislative, executive, and judicial departments of the Government of the United States are components of that government, rather than the other way around.
If so, then it follows that the two sets of powers given by the Necessary and Proper Clause examined thus far—one, the set of relationally subordinate legislative powers given by the FPP, and the other, the set of relationally super-ordinate government powers presupposed by the GPP—not only cannot be coextensive.
These sets of powers also must be mutually exclusive.
All this seems complicated, but in fact, the semantic complexity of the Necessary and Proper Clause is just beginning to unfold.
The DOPP also refers to a set of instrumental powers; namely, those powers “which shall be necessary and proper for carrying into execution” whatever “other powers” are vested by the Constitution “in any Department or Officer [of the United States].”
On the most natural and plausible reading of this provision, these “other powers” include all of the executive powers delegated in
The DOPP also refers to a set of instrumental powers; namely, those powers “which shall be necessary and proper for carrying into execution” whatever “other powers” are vested by the Constitution “in any Department or Officer [of the United States].”
On the most natural and plausible reading of this provision, these “other powers” include all of the executive powers delegated in
This principle was a resolution given to the Committee of Detail. See 2 Farrand 129
“Resolved: That the Government of the United States ought to consist of a Supreme Legislative, Judiciary and Executive”).
The principle was made explicit in the Committee of Detail’s August 6 draft, the second article of which reads:
“The Government shall consist of supreme legislative, executive, and judicial powers.”
Article II, all of the judicial powers delegated in Article III, and—since Congress itself is a “Department” of the U.S. Government—all of the legislative powers delegated outside of Article I, Section 8, such as the power to create inferior tribunals (Article III), the power to dispose of property belonging to the United States (Article IV), and the power to admit new states (also Article IV).
Likewise, the “other powers” encompassed by the DOPP presumably also encompass all of the shared powers given to more than one departments or officers of the government, such as the Treaty and Appointment powers of Article II, which are jointly delegated to the President and the Senate.
The instrumental powers to which the DOPP refers gives Congress the authority to carry these other powers into effect by necessary and proper means.
Finally, the GPP also refers to a set of instrumental powers—namely, those powers “necessary and proper for carrying into execution” the unspecified “other powers” presupposed by that provision.
Like the instrumental powers assigned by the FPP and DOPP, these instrumental powers are vested directly in Congress and are subordinate to the “other powers vested by this Constitution in the Government of the United States.”
The instrumental powers to which the DOPP refers gives Congress the authority to carry these other powers into effect by necessary and proper means.
Finally, the GPP also refers to a set of instrumental powers—namely, those powers “necessary and proper for carrying into execution” the unspecified “other powers” presupposed by that provision.
Like the instrumental powers assigned by the FPP and DOPP, these instrumental powers are vested directly in Congress and are subordinate to the “other powers vested by this Constitution in the Government of the United States.”
All told, then, the underlying semantic structure of the Necessary and Proper Clause points to the existence of no fewer than six different powers or sets of powers.
Four of these sets are vested directly in Congress, three of which are relationally subordinate and introduced by the first sentence of Article I, Section 8.
The fourth is relationally super-ordinate: namely, the “foregoing” powers presupposed by the FPP.
The last two sets of powers to which the full Necessary and Proper Clause refers are: (1)
Four of these sets are vested directly in Congress, three of which are relationally subordinate and introduced by the first sentence of Article I, Section 8.
The fourth is relationally super-ordinate: namely, the “foregoing” powers presupposed by the FPP.
The last two sets of powers to which the full Necessary and Proper Clause refers are: (1)
Does this mean that all of the “other powers” to which the DOPP refers are express powers?
No, not necessarily; once one recognizes that the “other powers” to which the GPP refers are or at least may be implied powers, then the same could be true of at least some of the “other powers” to which the DOPP refers.
the set of “other
powers” vested in the Government of the United States; and (2) the set of “other powers” vested in any Department or Officer of the United States.
Each of these sets is relationally super-ordinate to the powers given to Congress to carry these “other powers” into effect.
Once again, these two sets cannot be equivalent, however, unless one of them is redundant.
In sum, by inserting all of the foregoing properties and qualifications into the text, the entire scheme of powers presupposed by the Necessary and Proper Clause can be given as follows:
Once again, these two sets cannot be equivalent, however, unless one of them is redundant.
In sum, by inserting all of the foregoing properties and qualifications into the text, the entire scheme of powers presupposed by the Necessary and Proper Clause can be given as follows:
Foregoing Powers Provision:
“Congress shall have the [unspecified, instrumental] Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing [specified, enumerated] Powers”75
Government Powers Provision:
“Congress shall have the [unspecified, instrumental] Power to make all LAWS which shall be necessary and proper for carrying into Execution … all other [unspecified, implied] Powers vested by this Constitution in the Government of the United States”
Department or Officer Powers Provision:
Congress shall have the [unspecified, instrumental] Power to make all LAWS which shall be necessary and proper for carrying into Execution, all other [unspecified, express or implied] Powers vested by this Constitution in any Department or Officer [of the United States]”
Again, the key element of this scheme—the one which probably meant the most to Wilson, Gouverneur Morris, Alexander Hamilton, and the other leading nationalists at the constitutional convention, and which probably caused the greatest concern to Mason, Randolph, and Gerry—is the set of “other powers vested by this Constitution in the Government of the United States,” to which the GPP refers.
The Constitution never vests power expressly to “the Government of the United States” as a single unified entity,
The Constitution never vests power expressly to “the Government of the United States” as a single unified entity,
although there are clauses which presuppose or imply the existence of such powers
Yet the GPP clearly refers to such powers and gives Congress the explicit authority to carry them into effect.
If one assumes that Wilson was an intelligent draftsman and traces the implications of all three Necessary and Proper Clauses, the conclusion to which one is gradually led is that the Constitution vests implied powers in the Government of the United States, which are distinct from all of the express or implied powers delegated to the Departments and Officers of the United States.
This conclusion, however, hardly leaps off the page.
On the contrary, the grant of power appears somewhat disguised.
If one assumes that Wilson was an intelligent draftsman and traces the implications of all three Necessary and Proper Clauses, the conclusion to which one is gradually led is that the Constitution vests implied powers in the Government of the United States, which are distinct from all of the express or implied powers delegated to the Departments and Officers of the United States.
This conclusion, however, hardly leaps off the page.
On the contrary, the grant of power appears somewhat disguised.
This appears to be what John Marshall had in mind when he offered this curious and telling remark about the Necessary and Proper Clause in McCulloch v. Maryland.
“The framers of the constitution wished its adoption, and well knew that it would be
“The framers of the constitution wished its adoption, and well knew that it would be
The Constitution arguably vests the Government of the United States with the implied power:
(1) to sue and be sued -- assumed by Article III, Section 2, which refers to “controversies to which the United States shall be a party” --
(2) to acquire and own real estate and other property -- assumed by Article IV, Section 2, which gives Congress the authority “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”);
(3) to enter into contracts and incur debts (assumed by Article IV, Section 1, which refers to “Debts contracted and Engagements entered into…[by] the United States,” as well as by Article I, Section 8, which authorizes Congress “[t]o borrow Money on the credit of the United States” and “[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States”); and
(4) to enter into treaties with other nations (assumed by Article III, Section 2, which extends the judicial power of the United States “to all cases . . . arising under . . . Treaties made, or which shall be made, under [the] Authority {of the United States]” and by Article VI, Section 2—the Supremacy Clause—which also refers to “Treaties made, or which shall be made, under the Authority of the United States”). Furthermore, the Republican Guarantee Clause of Article IV, Section 4 vests an obligation in the United States to
“guarantee to every State in this Union a Republican Form of Government, and protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
If “ought” implies “can,” then this clause also would seem to vest the United States with the implied power to: (5) guarantee each State a Republican Form of Government; (6) protect each State against Invasion; and (7) protect each State against domestic Violence under the specified circumstances. Cf. Gary Lawson, Geoffry P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper Clause 1 (2010)
“The Constitution never grants power to the ‘national government’ or the ‘federal government’ as an undifferentiated entity, but instead grants various aspects of governmental power to discrete actors”); Gary Lawson, “Delegation and the Constitution,” 22 Regulation 23 (“The Constitution nowhere grants power to ‘the federal government’ as a unitary entity.”).
(1) to sue and be sued -- assumed by Article III, Section 2, which refers to “controversies to which the United States shall be a party” --
(2) to acquire and own real estate and other property -- assumed by Article IV, Section 2, which gives Congress the authority “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”);
(3) to enter into contracts and incur debts (assumed by Article IV, Section 1, which refers to “Debts contracted and Engagements entered into…[by] the United States,” as well as by Article I, Section 8, which authorizes Congress “[t]o borrow Money on the credit of the United States” and “[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States”); and
(4) to enter into treaties with other nations (assumed by Article III, Section 2, which extends the judicial power of the United States “to all cases . . . arising under . . . Treaties made, or which shall be made, under [the] Authority {of the United States]” and by Article VI, Section 2—the Supremacy Clause—which also refers to “Treaties made, or which shall be made, under the Authority of the United States”). Furthermore, the Republican Guarantee Clause of Article IV, Section 4 vests an obligation in the United States to
“guarantee to every State in this Union a Republican Form of Government, and protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
If “ought” implies “can,” then this clause also would seem to vest the United States with the implied power to: (5) guarantee each State a Republican Form of Government; (6) protect each State against Invasion; and (7) protect each State against domestic Violence under the specified circumstances. Cf. Gary Lawson, Geoffry P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper Clause 1 (2010)
“The Constitution never grants power to the ‘national government’ or the ‘federal government’ as an undifferentiated entity, but instead grants various aspects of governmental power to discrete actors”); Gary Lawson, “Delegation and the Constitution,” 22 Regulation 23 (“The Constitution nowhere grants power to ‘the federal government’ as a unitary entity.”).
endangered by its strength, not by its weakness.
Had they been capable of using language which would convey to the eye one idea, and, after deep reflection, impress upon the mind another, they would rather have disguised the grant of power, than its limitation.”
The grant of authority at issue also supplies a plausible explanation of many other curious historical observations.
To elaborate on these topics is beyond the scope of this essay.
Instead, we wish to conclude by returning to the progressive theory of LAW which rests on an implied power to promote the general welfare.
To elaborate on these topics is beyond the scope of this essay.
Instead, we wish to conclude by returning to the progressive theory of LAW which rests on an implied power to promote the general welfare.
How exactly is the core argument of that theory supposed to go?
In its most compressed and simplified form, we suggest it consists of the following steps:
---------------
STEP 1. The Necessary and Proper Clause implies that the Constitution vests powers in the Government of the United States that are not coextensive with the powers it vests in its Departments or Officers.
2. The United States of America is a LEGAL corporation.
3. A corporation is vested with the implied power to fulfill its purposes.
4. The purposes of the United States include promoting the general welfare.
5. The Constitution vests the Government of the United States with the implied power to promote the general welfare (from 1, 2, 3, and 4)
6. The Necessary and Proper Clause gives Congress the authority to make all LAWS which are necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States.
7. The Constitution authorizes Congress to carry into effect the implied power of the United States to promote the general welfare (from 5 and 6).
This reasoning may strike some readers as new and outlandish, but in fact it is not new, nor does it seem particularly outlandish.
In essence, it is the same basic argument that Mason, Randolph, and Gerry perceived at the close of the constitutional convention;81
In essence, it is the same basic argument that Mason, Randolph, and Gerry perceived at the close of the constitutional convention;81
79 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, __ (1819)
80 See, e.g., Mikhail, supra note 54, at 1129-30.
81 See Hutson, Supplement to Farrand’s Records 249 (August 30: Objections to the Constitution, attributed to George Mason) (“The sweeping clause absorbs every thing almost by construction”); id. at 251 (August 31:
Alterations to the Constitution, proposed by Mason) (
“The Objects of the National Government to be expressly defined, instead of indefinite powers, under an arbitrary constructions of General Clauses”); 2 Farrand 563-64 (September 10: statement of Edmund Randolph) (objecting to
“the general clause concerning necessary and proper laws” and “the want of a more definite boundary between the General and State Legislatures”); id. at 631 (September 15: statement of Randolph) (criticizing the “indefinite and 34
Alterations to the Constitution, proposed by Mason) (
“The Objects of the National Government to be expressly defined, instead of indefinite powers, under an arbitrary constructions of General Clauses”); 2 Farrand 563-64 (September 10: statement of Edmund Randolph) (objecting to
“the general clause concerning necessary and proper laws” and “the want of a more definite boundary between the General and State Legislatures”); id. at 631 (September 15: statement of Randolph) (criticizing the “indefinite and 34
that “Federal Farmer,” “Brutus,” and other Antifederalists warned against during ratification;82 that Franklin drew upon when he called on Congress to abolish slavery; that Hamilton and his supporters used to defend the first Bank of the United States; that Marshall outlined in McCulloch and other landmark opinions;8 that Frederick Douglass drew upon when he called on Congress to abolish slavery; and that Theodore Roosevelt
dangerous power given by the Constitution to Congress”); id. at 633 (September 15: statement of Elbridge Gerry) (objecting to
“the general power of the legislature to make what LAWS they may please to call necessary and proper”); id. at 635 (September 15: Mr. Gerry’s objections) (“The Legislature allowed to make any laws they please”); id. (September 15: Gerry’s Objections) (highlighting
“the power in the last clause to make any laws pursu[ant] to [the] Con[stitution] to carry the same into Effect”).
“the general power of the legislature to make what LAWS they may please to call necessary and proper”); id. at 635 (September 15: Mr. Gerry’s objections) (“The Legislature allowed to make any laws they please”); id. (September 15: Gerry’s Objections) (highlighting
“the power in the last clause to make any laws pursu[ant] to [the] Con[stitution] to carry the same into Effect”).
Brutus, No. 5, 13 December 1787, New York Journal, in BERNARD BAILYN, 1 THE DEBATE ON THE CONSTITUTION 499, 500 (1993) (linking the Necessary and Proper Clause with the ends of the Preamble and observing:
“The great objects then are declared in this preamble in general and indefinite terms to be to provide for the common defence, promote the general welfare, and express power being vested in the legislature to make all LAWS which shall be necessary and proper for carrying into execution all the powers vested in the general government.
The inference is natural that the LEGISLATURE will have an authority to make all LAWS which they shall judge necessary to the common safety, and to promote the general welfare.”
“The great objects then are declared in this preamble in general and indefinite terms to be to provide for the common defence, promote the general welfare, and express power being vested in the legislature to make all LAWS which shall be necessary and proper for carrying into execution all the powers vested in the general government.
The inference is natural that the LEGISLATURE will have an authority to make all LAWS which they shall judge necessary to the common safety, and to promote the general welfare.”
83 See supra note 13.
84 See, e.g., 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, MARCH 4, 1789—MARCH 3, 1791 (Linda Grant Depauw et al, eds.) 390, 393 (1972) (Statement of Rep. Ames) (explaining that
“that construction [of the Necessary and Proper Clause] may be maintained to be a safe one which promotes the good of the society, and the ends for which the government was adopted, without impairing the rights of any man, or the powers of any state”); 4 Elliot’s Debates 418 (Statement of Rep. Laurence)
“The principles of government, and ends of the Constitution, he remarked, were expressed in its preamble. It is established for the common defence and general welfare.
The body of that instrument contained provisions best adapted to the intention of those principles and the attainment of those ends. To these ends, principles, and provisions, Congress was to have, he conceived, a constant eye: and then, by the sweeping clause, they were vested with powers to carry the ends into execution”).
See generally Joseph M. Lynch, Negotiating the Constitution: The Earliest Debates over Original Intent 83-92 (1999).
“that construction [of the Necessary and Proper Clause] may be maintained to be a safe one which promotes the good of the society, and the ends for which the government was adopted, without impairing the rights of any man, or the powers of any state”); 4 Elliot’s Debates 418 (Statement of Rep. Laurence)
“The principles of government, and ends of the Constitution, he remarked, were expressed in its preamble. It is established for the common defence and general welfare.
The body of that instrument contained provisions best adapted to the intention of those principles and the attainment of those ends. To these ends, principles, and provisions, Congress was to have, he conceived, a constant eye: and then, by the sweeping clause, they were vested with powers to carry the ends into execution”).
See generally Joseph M. Lynch, Negotiating the Constitution: The Earliest Debates over Original Intent 83-92 (1999).
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (Marshall, C.J.) -- construing the Necessary and Proper clause to embrace
“all [legislative] means which are appropriate” to carry out “the legitimate ends” of the Constitution); see also, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, __ (1821) (Marshall, C.J.
“To this supreme government ample powers are confided; and if it were possible to doubt the great purposes for which they were so confided, the people of the United States have declared that they are given ‘in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity."
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, __ (1824) (Marshall, C.J.)
“If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction."
"We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.”
“all [legislative] means which are appropriate” to carry out “the legitimate ends” of the Constitution); see also, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, __ (1821) (Marshall, C.J.
“To this supreme government ample powers are confided; and if it were possible to doubt the great purposes for which they were so confided, the people of the United States have declared that they are given ‘in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity."
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, __ (1824) (Marshall, C.J.)
“If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction."
"We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.”
Frederick Douglass, The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery? Speech Delivered in Glasgow, Scotland, March 26, 1860, reprinted in Barnett.
“It has been said that Negroes are not included within the benefits sought under the Preamble. This is said by the slaveholders in America. But it is not said by the Constitution itself. Its language is “we the people;” not we the high, we the low, but we the people; we the human inhabitants; and, if Negroes are people, they are included in the benefits for which the Constitution was established."
"If there is once a will in the people of America to abolish slavery, there is no word, no syllable in the Constitution to forbid that result.”
“It has been said that Negroes are not included within the benefits sought under the Preamble. This is said by the slaveholders in America. But it is not said by the Constitution itself. Its language is “we the people;” not we the high, we the low, but we the people; we the human inhabitants; and, if Negroes are people, they are included in the benefits for which the Constitution was established."
"If there is once a will in the people of America to abolish slavery, there is no word, no syllable in the Constitution to forbid that result.”
and Franklin D. Roosevelt announced in 1906 and 1937, respectively.
Perhaps most significantly, it is also the same basic argument that James Madison employed in 1789 to justify the need for a bill of rights.
Is the argument’s conclusion valid, and can each premise along the way be given a reasonable justification?
Without pretending to settle these questions conclusively, let me conclude by saying a brief word about each step of the argument, leaving a more extensive discussion for another occasion.
Is the argument’s conclusion valid, and can each premise along the way be given a reasonable justification?
Without pretending to settle these questions conclusively, let me conclude by saying a brief word about each step of the argument, leaving a more extensive discussion for another occasion.
The first premise is a restatement of the main thesis of Section 6.
The implication to which it refers may seem like an entailment, but in fact it seems more accurately classified as an implicature.
The framers could, in principle, have added a rider to the Necessary and Proper Clause that states:
“However, there are no powers vested by this Constitution in the Government of the United States that are not delegated to one or more of its Departments or Officers.”
“However, there are no powers vested by this Constitution in the Government of the United States that are not delegated to one or more of its Departments or Officers.”
This statement does not generate a contradiction.
Instead, it merely implies that a particular definite description in the Constitution picks out a null set.
The language would be a roundabout and uncooperative piece of draftsmanship, but it does not quite amount to affirming P and not-P.
The language would be a roundabout and uncooperative piece of draftsmanship, but it does not quite amount to affirming P and not-P.
1 ANNALS OF CONG. 455 (June 8, 1789) (statement of Rep. Madison) (explaining that
“because in the constitution of the United States there is a clause granting to Congress the power to MAKE all LAWS which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof,”
the federal government possesses
“certain extraordinary powers” which “enables it to fulfill every purpose for which the government was established”).
“because in the constitution of the United States there is a clause granting to Congress the power to MAKE all LAWS which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof,”
the federal government possesses
“certain extraordinary powers” which “enables it to fulfill every purpose for which the government was established”).
One possibility worth considering is that the implication in Step 1 is a presupposition.
Grice held “that any alleged presupposition is either an entailment or an implicature, and hence the notion of presupposition, to the extent it was ever coherent, can be dispensed with altogether.”
Not all philosophers would agree, however, and most probably conceive presupposition as a genuine third category at the borderline of semantics and pragmatics.
See, e.g., Gennaro Chierchia and Sally McConnell-Ginet, Meaning and Grammar: An Introduction to Semantics __ (1999).
Some distinguish two classes of presupposition: semantic presupposition and pragmatic presupposition.
A standard definition holds that a sentence, S, semantically presupposes a proposition, P, if P must be true in order for S to have a truth-value; and that the use of a sentence, S, in a
Grice held “that any alleged presupposition is either an entailment or an implicature, and hence the notion of presupposition, to the extent it was ever coherent, can be dispensed with altogether.”
Not all philosophers would agree, however, and most probably conceive presupposition as a genuine third category at the borderline of semantics and pragmatics.
See, e.g., Gennaro Chierchia and Sally McConnell-Ginet, Meaning and Grammar: An Introduction to Semantics __ (1999).
Some distinguish two classes of presupposition: semantic presupposition and pragmatic presupposition.
A standard definition holds that a sentence, S, semantically presupposes a proposition, P, if P must be true in order for S to have a truth-value; and that the use of a sentence, S, in a
The second premise, that the United States is "a legal corporation", appears to have been embraced by an unbroken string of authorities.
The same is true of the third premise, which in many respects is the core principle of the argument.
The remaining steps are relatively simple and straightforward.
The fourth step is a direct inference from the Preamble.
The fifth step follows from the first four premises.
The sixth step is merely a paraphrase of the Government Powers Provision of the Necessary and Proper Clause.
Finally, the seventh step follows directly from steps five and six.
The same is true of the third premise, which in many respects is the core principle of the argument.
The remaining steps are relatively simple and straightforward.
The fourth step is a direct inference from the Preamble.
The fifth step follows from the first four premises.
The sixth step is merely a paraphrase of the Government Powers Provision of the Necessary and Proper Clause.
Finally, the seventh step follows directly from steps five and six.
As indicated, the third premise is in many respects the heart of the argument.
Here, there are at least two mutually reinforcing points worth emphasizing by way of conclusion.
First, it seems noteworthy that many of the sharpest legal minds in the founding generation—Wilson, Hamilton, Marshall, and others—repeatedly explained that
Here, there are at least two mutually reinforcing points worth emphasizing by way of conclusion.
First, it seems noteworthy that many of the sharpest legal minds in the founding generation—Wilson, Hamilton, Marshall, and others—repeatedly explained that
particular context, C, pragmatically presupposes a proposition, P, if P is a member of a set of background assumptions that is taken for granted by the speaker in C. Id. at __.
Accordingly, there are at least two possible ways that a presupposition relation might exist between the Necessary and Proper Clause and the implication at issue in Step 1.
First, the latter could be a semantic presupposition of former, that is, a proposition that must be assumed to be true if the clause itself is capable of being either true or false.
Second, the implication could be a pragmatic presupposition of the Necessary and Proper Clause, that is, a background assumption taken for granted by the framers (or ratifiers) when the clause was written (or adopted.)
Accordingly, there are at least two possible ways that a presupposition relation might exist between the Necessary and Proper Clause and the implication at issue in Step 1.
First, the latter could be a semantic presupposition of former, that is, a proposition that must be assumed to be true if the clause itself is capable of being either true or false.
Second, the implication could be a pragmatic presupposition of the Necessary and Proper Clause, that is, a background assumption taken for granted by the framers (or ratifiers) when the clause was written (or adopted.)
Cotton v. United States. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 446 (Iredell, J..
“The word ‘corporations,’ in its largest sense, has a more extensive meaning than people generally are aware of."
"Any body politic (sole or aggregate), whether its power be restricted or transcendent, is in this sense, ‘a corporation.’.
"In this extensive sense, not only each state singly, but even the United States may, without impropriety, be termed ‘corporations’”.
Respublica v. Cornelius Sweers, 1 U.S. (1 Dall.) 41, 44 (1779)
“From the moment of their association, the United States necessarily became a body corporate.
"For, there was no other superior from whom that character could otherwise be derived."
"In England, the queen and the Parliament -- lords, and commons -- are certainly a body corporate" (cfr. Hart's rule of recognition: "What the queen in parliament enacts is law."
"And yet there never was any charter or statute, by which they were expressly so created.”
“The word ‘corporations,’ in its largest sense, has a more extensive meaning than people generally are aware of."
"Any body politic (sole or aggregate), whether its power be restricted or transcendent, is in this sense, ‘a corporation.’.
"In this extensive sense, not only each state singly, but even the United States may, without impropriety, be termed ‘corporations’”.
Respublica v. Cornelius Sweers, 1 U.S. (1 Dall.) 41, 44 (1779)
“From the moment of their association, the United States necessarily became a body corporate.
"For, there was no other superior from whom that character could otherwise be derived."
"In England, the queen and the Parliament -- lords, and commons -- are certainly a body corporate" (cfr. Hart's rule of recognition: "What the queen in parliament enacts is law."
"And yet there never was any charter or statute, by which they were expressly so created.”
Collected Works of James Wilson.
“The next accusation I shall consider is that which represents the federal constitution, as not only calculated, but designedly framed, to reduce the state governments to mere corporations and eventually to annihilate them."
"Those who have employed the term "corporation" upon this occasion are not perhaps aware of its extent."
"In common parlance, indeed, "corporation" is generally applied to petty associations for the ease and convenience of a few individuals."
"But in its enlarged "sense", it will comprehend the government of Pennsylvania, the existing union of the States, and even this projected system is nothing more than a formal act of incorporation."
“When a corporation is duly established, there are many powers, rights, and capacities, which are annexed to it tacitly and of course."
"The general duties of every corporation may be collected from the nature and design of its institution."
"It should act agreeably to its nature, and fulfill the purposes for which it was formed.”
“The next accusation I shall consider is that which represents the federal constitution, as not only calculated, but designedly framed, to reduce the state governments to mere corporations and eventually to annihilate them."
"Those who have employed the term "corporation" upon this occasion are not perhaps aware of its extent."
"In common parlance, indeed, "corporation" is generally applied to petty associations for the ease and convenience of a few individuals."
"But in its enlarged "sense", it will comprehend the government of Pennsylvania, the existing union of the States, and even this projected system is nothing more than a formal act of incorporation."
“When a corporation is duly established, there are many powers, rights, and capacities, which are annexed to it tacitly and of course."
"The general duties of every corporation may be collected from the nature and design of its institution."
"It should act agreeably to its nature, and fulfill the purposes for which it was formed.”
Second, James Madison is often called “the father of the constitution,” but this label is in many respects more myth than reality.
In fact, Madison had less to do with the precise language of the constitution than is commonly believed.
The best reading of the available evidence suggests that the two principal draftsmen of the Constitution were James Wilson and Gouvernuer Morris.
Both were lawyers who conceived of the United States of America as a legal corporation, who were strongly committed to vesting the government of the United States with implied national powers, and who clearly understood how the objects clause and sweeping clause of a corporate charter could work in tandem to vest the corporation with the implied power to fulfill its purposes.
Wilson was largely responsible for drafting the necessary and proper clause, and both men were responsible for the preamble.
Thre must be a Griceian moral there, somewhere.
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