Necessary Does not Mean Useful or Convenient

By: TJ Martinell

One of the most famous and important Supreme Court opinions is from the 1819 McCulloch v. Maryland case. It set the stage for massive expansion of federal power by incorrectly defining the Constitutional meaning of the word “necessary.”

In its majority opinion, SCOTUS found that the federal government had the constitutional authority to charter a national bank despite the fact that none of the Constitution’s enumerated powers expressly permit it to do so.

The crux of the opinion revolves around the Necessary and Proper Clause found in Article I Section 8. This clause delegates to Congress 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, or any Department or Officer thereof.”

The common frame of debate about the opinion is whether it extends to Congress greater authority relating to other matters it deems “necessary and proper.” While Hamiltonians would argue “yes,” others, such as constitutional scholar Rob Natelson, have noted the limited scope of Chief Justice John Marshall’s opinion.

Yet, there is another separate but related issue: What does “necessary” even mean under the Constitution, and did McCulloch v. Maryland define it correctly?

As the title suggests, the paper What McCulloch V. Maryland Got Wrong: The Original Meaning Of “Necessary” Is Not “Useful,” “Convenient,” Or “Rational” argues it did not.

Written by Steven G. Calabresi, Elise Kostial, and Gary Lawson, the paper takes a unique research approach to determine what “necessary” meant to those who wrote the Constitution.

They note, “today, the meaning of the term ‘necessary’ is rarely debated, or even mentioned, in the courts. Instead, the dictum of McCulloch is treated as canonically dispositive of the question, and attention turns to relatively implausible interpretations of ‘Commerce among the several States.’”

The relevance is that “there is value in getting such things right, including focusing attention on the extent to which the Necessary and Proper Clause rather than the Commerce Clause is the key to understanding the scope of federal power.” [Emphasis added]

However, they also write that they are not trying to provide a specific definition to “necessary.” Rather, “it only tests the specific linguistic arguments on which the McCulloch decision rests.”

The verbal debates in McCulloch v. Maryland pitted two very different definitions of “necessary,” a broad one touted by Alexander Hamilton and a very narrow one advocated by Thomas Jefferson and the state of Maryland. Hamilton claimed that the word meant “convenient” or “useful.”

His concept of “necessary” was originally articulated during the debate in 1791 regarding the first bank bill:

“It is a common mode of expression to say, that it is necessary for a government or a person to do this or that thing, when nothing more is intended or understood, than that the interests of the government or person require, or will be promoted by, the doing of this or that thing.”

During the verbal arguments, Daniel Webster took a similar stance, arguing that “necessary” meant Congress could do things that “are suitable and fitted to the object” and “best and most useful in relation to the end proposed.”

Meanwhile, Jefferson believed “necessary” was tantamount to “indispensable.”

Obviously, these opposing definitions had enormous constitutional implications regarding federal authority. One would severely limit Congress’ powers, the other would permit a significant degree of subjectivity and provide great latitude for federal action.

Incidentally, James Madison, often called “the Father of the Constitution,” felt both definitions were too extreme.

Chief Justice John Marshall ultimately sided with Hamilton, writing in his opinion that “If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another.”

Madison criticized Marshall’s definition in a letter to letter to Spencer Roane, writing that the Constitution would have never been ratified had this been the commonly understood meaning of the word:

“It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise, in expounding terms & phrases necessarily used in such a Charter, more especially those which divide legislation between the General and the local Governments; and that it might require a regular course of practice to liquidate and settle the meaning of some of them. But it was anticipated, I believe, by few if any of the friends of the Constitution, that a rule of construction would be introduced, as broad and as pliant as what has occurred.” [Emphasis added]

While Madison’s status as one of the primary architects of the Constitution gives weight to his opinion, Madison was also known to change his mind on matters. He later approved the charter of the Second Bank of the United States.

Calabresi, Kostial, and Lawson turn to a research approach known as Corpus Linguistics that goes beyond merely looking at dictionaries of the time. In addition, they studied searchable databases of texts showing how ordinary people at the time used a word. While conceding that “it should by no means be held up as the silver bullet of originalist research,” they conclude that that ordinary American, and some United Kingdom speakers of English, in fact agreed with our reliance on some of the dictionary definitions.”

Rather than Marshall and Hamilton’s “necessary really means convenient” view, they theorize that the constitutional framers meant “needful.” Under that definition, the question then becomes whether the federal government needs to do it, rather than whether it’s convenient to do it.

Additionally, the authors note that prior research by Robert Natelson found the phrase “necessary and proper” was among the most restrictive of those used to describe the extent of government power.

What implications does this have for both McCulloch v. Maryland and other subsequent SCOTUS opinions?

Calabresi, Kostial, and Lawson are rather restrained in their conclusions. They write that Marshall’s erroneous interpretation of “necessary” doesn’t mean the overall decision was wrong, i.e. the bank was unconstitutional. Nor are they claiming emphatically that their definition of “necessary” is the correct one.

Citing a variety of opinions following McCulloch dealing with the Commerce Clause and the Necessary and Proper Clause, they also refuse to speculate whether “those decisions to be correct or incorrect, for the same reasons that we do not issue an ultimate judgment on McCulloch There are simply too many factors that enter into those kinds of judgments for us to address here. Instead, we aim simply to fix a linguistic mistake, with whatever consequences do or do not flow from that correction.”

Instead, they conclude that “further research, employing corpus linguistics and other methods, is necessary to explore the original meaning of the phrase “necessary and proper.”

But, as Thomas Jefferson put it in his 1791 Opinion on the Constitutionality of a National Bank, “the Constitution allows only the means which are “necessary,” not those which are merely “convenient” for effecting the enumerated powers.

As to that as a starting point, the authors certainly seem to agree.