The necessary and proper clause was never
intended to expand federal power. At all.
The way most people treat the Constitution’s
necessary and proper clause today, we could just
as well call it the “whatever is convenient and
possible” clause.
But it was never intended to expand federal power
one iota.
In fact, in Federalist #33, Alexander
Hamilton said the operation of the government
“would be precisely the same” if the clause never existed.
But Hamilton famously flip-flopped a few years
later when he used necessary and proper to
justify his national bank.
Thomas Jefferson vehemently opposed Hamilton’s
bait-and-switch saying that the Constitution only
allows the means which are “necessary,” and not just
those which are merely “convenient” for effecting
the enumerated powers.
In other words, if an action isn't absolutely
essential for carrying out a specifically
delegated power, it isn’t allowed.
This wasn’t merely some legal nitpicking on
Jefferson's part. He understood that accepting
Hamilton’s expansive reading of the clause would
subvert the entire Constitution, turning the
federal government
into one of virtually unlimited power.
He went on to write that if such a “latitude of
construction” could be applied to any non-
enumerated power, it would go to every one, “for there
is not one which ingenuity may not torture into a
convenience in some instance or other.”
He said this would “swallow up all of the
delegated powers, and reduce the whole to one power.”
That’s why, Jefferson wrote, the Constitution
restrained the government to “necessary means, that
is to say, to those means without which the grant
of power would be nugatory.”
In short, necessary and proper does not mean
anything and everything.
