Probably no part of the Constitution has been so misunderstood as the Necessary and Proper Clause, which is located at Article I, Section 8, Clause 18. The Necessary and Proper Clause has been called both an “elastic clause” and a “sweeping clause,” and many have claimed it grants vast power to Congress. For example, a recent Supreme Court case, United States v. Comstock, stated that the “Necessary and Proper Clause grants Congress broad authority to enact federal legislation.”

In fact, most federal regulations today are justified by the Necessary and Proper Clause. They are said to be within Congress’s Interstate Commerce Power— but within not the core Commerce Clause (“The Congress shall have Power . . . To regulate Commerce . . . among the several States”). Rather, they are said to be supported by the accompanying authority to “make all Laws which shall be necessary and proper for carrying into Execution” the power to regulate commerce.

Now, here’s the irony of the situation: Far from granting “broad authority” to Congress, the truth is that Necessary and Proper Clause grants no power at all. It is placed at the end of Article I, Section 8 as an explanation—that is, a “recital.” A recital is a passage in a legal document that has no substantive legal effect, but serves to inform the reader of assumptions or facts behind the document. Another example of a recital in the Constitution is the Preamble.

In recent years, several constitutional scholars have investigated the true meaning of the Clause, and have worked to correct the record. The process began with an article written by Professor Gary L. Lawson and Patricia B. Granger: The Proper Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267 (1994). It focused on the meaning of “proper.” A decade later, I delved into the historical record. I found that wording of this kind was extremely common in eighteenth-century documents granting power from one person to another. I also found the courts had issued cases interpreting this language, and that the Founders had adopted the courts’ interpretation. See articles here and here.

Finally, Professors Lawson and I teamed up with two other noted scholars, Geoff Miller, and Guy Seidman, and wrote a book on the subject. (We all have differing political views, by the way.) The book is called The Origins of the Necessary and Proper Clause, and it was published last year by Cambridge University Press.

Here’s what we found:

* The Clause is a mere recital. It informs the reader how to interpret congressional authority. It does not grant any power.

* The term “necessary” tells the reader that congressional authority is interpreted according to the intent behind the document, rather than very strictly (as the Articles of Confederation required).

* The Clause does this by telling the reader that the legal “doctrine of incidental powers” applies to the Constitution. This means that Congress can regulate certain activities outside the strict reading of its powers, but ONLY IF this ancillary regulation is (1) subordinate to an express power, and (2) a customary or necessary way of carrying out the express power. For example, in regulating commerce, Congress can require accurate labels on goods to be shipped in interstate commerce. But Congress cannot regulate the entire manufacturing process.

* The word “proper” means that a law must comply with Congress’s fiduciary (public trust) responsibilities. A law is not “proper”—and is therefore unconstitutional— if it invidiously discriminates among people, violates individual rights, is utterly irrational, or exceeds congressional authority.

* Contrary to prevailing legal mythology, Chief Justice Marshall’s famous case of McCulloch v. Maryland (1819) did not stretch the Clause, but applied it properly and with due regard for its limitations.

Recently, Dave Kopel, the Independence Institute Research Director, filed an amicus curiae brief in the most important anti-Obamacare lawsuit. He did so on behalf of Professors Lawson, Seidman, and me. The goal? To correct the record and inform the courts what the Necessary and Proper Clause REALLY means.

Using the Constitution’s system of a “convention to propose amendments” is likely the only way we’ll ever get a balanced budget amendment, a federal single-subject rule, or other reforms Congress won’t pass. Opponents of the process, however, try to convince people that a convention to propose amendments is a “constitutional convention” (which it is not) and that it could “run away” (which it almost certainly can’t).

Recently I traveled to Indianapolis to testify before the Indiana legislature. While there, I learned that opponents of an amendments convention are circulating questions about a convention, apparently designed to “stump” proponents.

Frankly, when I read what are supposed to be tough questions, I laughed out loud. All the questions are answered easily if you know the history and law applicable to such a convention.

The author of the questions obviously didn’t. He introduced them with this statement: “No convention has been held since 1787, and after two hundred years that experience has little relevance.”

The statement is ridiculous. Americans have held hundreds, perhaps thousands, of conventions since 1787. They also have amended the Constitution 27 times, and state legislatures have submitted hundreds of applications for an Article V conventions. This and related experience is a valuable source of precedent. And the legal disputes that arose out of this activity comprise a valuable source of decided case law.

But if what the author meant is that no interstate convention has been held since 1787, then the statement is still ridiculous because the Founding Generation’s copious experience with both interstate and intrastate conventions has tremendous constitutional and practical relevance. This is because the language and powers bestowed by Article V carry meanings and incidental powers fixed by Founding-Era custom and law, particularly the law of agency.

[By the way, that is not the sheet's only inaccuracy---another is the old myth that the 1787 convention was a runaway.]

Anyway, here are the 11 questions the author poses, with answers to each. For further information, see my writings, linked on this website. You can supplement them with the leading book on Article V conventions, Russell Caplan’s Constitutional Brinkmanship (Oxford University Press, 1988). Some of the book’s conclusions and language have been superseded, but it remains a valuable antidote to claimed uncertainty.

1. How is the validity of applications from the states to be determined?
A. Initially by Congress, although congressional decisions are subject to judicial review.

2. How specific must the state legislatures be in asking for amendment?
A. The legislatures may apply either for an unrestricted convention or one devoted to particular subject matter. There is no rule as to specificity, other than that the legislatures may not dictate specific wording to the convention.

3. Must all the applications be in identical language?
A. No. It is enough if they identify the same problem(s) or subject-matter(s). However, prudence suggests that state legislatures coordinate with one another.

4. Within what time period must the required number of applications be received?
A. Since adoption of the 27th amendment, it is clear that there is no time period. Because, however, some are still claiming that applications can go “stale,” prudence suggests that a campaign be completed within a decade or so. (The application campaign for direct election of senators took 14 years.

5. Can Congress refuse to call a convention on demand of two-thirds of the states, and if it does, can it be compelled to act by the courts?
A. No, Congress may not refuse, and the courts can compel it to act.

6. Who are the delegates, and how are they to be chosen?
A. Delegates are representatives of their respective state legislatures, and are chosen as state law directs.

7. Can the convention act by a simple majority vote, or would a two-thirds majority be required, as in Congress, for proposing an amendment?
A. The convention acts by a simple majority of the represented states. The convention may, by a simple majority of the represented states, alter that voting rule.

8. How is a convention to be financed, and where does it meet?
A. A convention for proposing amendments is a conclave of state delegates. It therefore is financed by the states. Congress, in the convention call, specifies the initial meeting place. The convention may alter that meeting place.

9. May the convention propose more than one amendment?
A. Yes—but only if they are all within the agenda of the convention, as prescribed by the applying states.

10. Is there a time limit on the proceedings, or can the convention act as a continuing body?
A. There is no fixed time limit—the convention can meet until it decides whether to propose amendments and which ones to propose. But a convention is, by definition, not a continuing body. It has no authority beyond proposing amendments within the subject matter prescribed in the applications, and once that is performed, it must adjourn. Additionally, states may recall and/or replace their delegates at any time.

11. Can controversies between Congress and the convention over its powers be decided by the courts?
A. Controversies over the scope of the convention’s powers may be decided by the courts. However, the states, not Congress, fix the scope of such powers. The most likely area of controversy between Congress and the convention would be if the convention suggests an amendment that Congress believes is outside the convention’s agenda as fixed in the state applications. If (as is proper) Congress then refused to prescribe a “Mode of Ratification” for the suggested amendment, the courts could resolve the dispute.

I’ve pointed out before that one way to understand how far left the mainstream media are is to see how they classify politicians on the political spectrum. It tells you a lot more about the media than about the politicians.

Many stories (see, for example, here) are now classifying the tragically-wounded Rep. Gabrielle Giffords as a “centrist” or “fiscally conservative” Democrat, despite her support for both heavy “stimulus” spending and the health care takeover.

Yet two major rating services — one conservative, one liberal — provide a more objective view. Both services identify her as well to the left of center. She has a lifetime rating of 14.67% from the American Conservative Union, indicating that she voted liberal more than 85% of the time. I could not find her lifetime ratings from the liberal Americans for Democratic Action, but the ADA gives her a 2009 liberal rating of 95%.

If this is a centrist, what is a leftist?

A story in today’s Denver Post illustrates the waste in many, if not most, of government’s so-called “economic development” handouts.

In 2008, the City of Aurora, Colorado gave a theater company a $250,000, fully-forgivable urban-renewal loan. The company promised to bring 12,000 people a year into what the city, in its planning wisdom, had decreed would be an arts district. The company further promised to offer public performances at least 40 weekends a year for seven years. Naturally, the theater company also rented space – probably too much space or at least at too much rent, because the tab was $7500 a month in the East Colfax Avenue district.

Fast forward to now: The company hasn’t paid its rent since April, 2009. The landlord cut the rent in half, but the company didn’t pay that either. It also hasn’t paid the actors or the royalties for the plays it has produced – not that it has produced so many: The Post tells us that this year the company put on fewer than half of the plays promised.

The tragedy here is not merely that the company is folding. There is much more to it than that. Because people tend to be more careful with their own money than with other people’s money, if the $250,000 had been left with its real owners in the private sector, chances are it would have been used in more productive ways. Instead, the true owners of the money have lost $250,000 and the opportunities it would have brought. The actors, landlord, and others have largely wasted their time and funds on a failed enterprise, when they might otherwise have won more success for themselves and those they serve. And there has been a very human, non-financial toll as well – as readers of the story can see.

And what about all those politicians who show up for “economic development” ribbon-cutting ceremonies? They almost always are curiously absent when the subsidized enterprises go belly-up.

The constitutional whiz kids at the Denver Post are at it again.

Their latest batch of constitutional miscues appears on page 5A of the December 20 edition, in a story on the “Repeal Amendment.” The Repeal Amendment would change the U.S Constitution to allow two-thirds of state legislatures to veto federal laws and regulations. The idea is to bring some discipline back to an out-of-control federal government.

The story originated from the New York Times, but the Post edited it to make it worse. For example, the Times version, while critical of the Repeal Amendment, did balance its viewpoint with comments from supporters. The Post version left in criticism by liberal law professor Sanford Levinson, but omitted almost all the favorable comments appearing in the Times version.

But errors and omissions appear in both versions. Here are three:

#1: “Like any constitutional amendment,” the story says, “it must be approved by both chambers of Congress.”

FALSE! The Constitution allows the state legislatures to bypass Congress by requiring Congress to call what the Constitution denotes a “convention for proposing amendments.” This is a meeting of state representatives who draft a proposal that Congress is unwilling to draft. The convention is not, as some have thought, a “constitutional convention,” but essentially a drafting task force. Its proposals can be accepted or rejected by the states.

The Repeal Amendment sponsors, like those promoting other amendments to rein in Congress, are currently going the convention route, which the Founders inserted in the Constitution in case Congress ever became abusive.

#2: “[T]he idea that the health care legislation was unconstitutional was dismissed as a fringe argument just six months ago.”

MISLEADING! While some extreme liberals took that position, concerns about the law’s constitutionality were very widespread. Not only does the law violate the Constitution’s original meaning, but most writers recognize that it stretches even modern court interpretations. Whether the Supreme Court strikes down or upholds the law is likely to depend on which of two different groups of cases the Court follows.

#3: States have passed “sovereignty resolutions, largely symbolic, aimed at nullifying federal laws they do not agree with, mostly on health care or gun control.”

FALSE! Most state actions directed against federal overreaching in health care and gun control have nothing to do with nullification, and go far beyond symbolism. The various state “Firearms Freedom Acts,” such as Montana’s, are designed largely to set up court challenges and protect state citizens. The most prominent health care measures, such as Arizona’s, are designed to protect patient rights under state law.

One of the big under-covered stories in this election is the huge shift toward Republicans in state legislatures. The change could portend big changes for national politics, because Republican state lawmakers are more likely to sign onto federalism (“states rights”) initiatives than Democrats are. Even though the U.S. House is now Republican, a liberal President and Senate will block GOP-led efforts to curb federal overreaching — thereby encouraging state action instead.

Look for state-level measures such as –

* Health Care Choice laws like Amendment 63, designed to protect citizens from ObamaCare;

* Formal applications, under Article V of the U.S. Constitution, for a “convention for proposing amendments” — a device the Framers inserted into the Constitution in case the states ever needed to rein in an out-of-control Congress;

* Rejections of federal funds and federal mandates;

* More state lawsuits against federal overreaching; and

* Resolutions claiming sovereignty over land within state boundaries held by the federal government in violation of the Constitution.

Constitutional mistakes just keep coming out of the Denver Post.

One was the editorial board’s assessment that “ObamaCare” is somehow constitutional.

Two more mistakes have just come from Post columnist Mike Littwin. In his Oct. 23 profile of the Tea Party Littwin wrote, that “the founders’ visions were often in complete opposition.”

Actually, the Founders’ visions were remarkably consistent — their disagreements were about how best to achieve common goals. Those common goals included a limited, republican federal government held to trust-style standards and protecting personal liberty. (American dissenters from those goals were called “Tories” and fled the country or dropped out of public life after the Revolution.) You can find the details in my new book The Original Constitution: What It Really Said and Meant.

Littwin returned with another column on October 27, in which if he didn’t make an error, he certainly left an mistaken impression.

He wrote “It was only recently that O’Donnell was laughed at by a group of law students . . . for saying that the separation of church and state was not guaranteed by the First Amendment. It’s an old argument, since the words themselves aren’t in the Constitution. But it was Thomas Jefferson, one of your more important founders, who did say exactly that in an 1802 letter to the Danbury Baptists concluding that the First Amendment built ‘a wall of separation between Church & State.’”

What Littwin apparently doesn’t understand is that “separation of church and state” meant something different to Jefferson than it means in discourse today.

Today the term is used for the view that both federal and state governments must divorce themselves from all religious recognition, even at the risk of seeming anti-religion. Believers in this view are called “strict separationists.”

That was hardly Jefferson’s view, since when he was governor of Virginia he supported religious holidays and blasphemy laws.

Actually (as most recent scholarship confirms), the Establishment Clause of the First Amendment meant only that the federal government could not establish a national church or otherwise favor some religions over others. My own research on the subject appears here.
[For the future, please note that Jefferson is not a very reliable source of constitutional meaning anyway, since he was in France when the Constitution was drafted and ratified.]

Senate candidates Ken Buck and Christie O’Donnell have gotten a lot of flak for saying they don’t buy the current notion of “separation of church and state.” Critics have tried to portray this as an opinion that is somehow looney or extremist. If so, then the current Supreme Court of the United States is looney or extremist, because it doesn’t agree with strict separation, either.

The legal whizzes on the editorial board of the Denver Post have spoken: Amendment 63, the Right to Health Care Choice Initiative, is bad because Obama Care is constitutional. Today’s editorial reads:

[W]e believe [Obama Care] will survive legal challenges and will be found to be constitutional. The Constitution provides Congress authority to impose an individual mandate through the power to regulate interstate commerce and the power to tax.

The Post says so, even though, “We’re sympathetic to the argument that an individual mandate is a curtailment of personal freedom or an infringement of states’ rights.”

Well . . .  maybe not too sympathetic.

Because if they were more sympathetic, they might have noticed that the merits of Amendment 63 don’t depend at all on the constitutionality or non-constitutionality of Obama Care.   Amendment 63 merely says that whatever the feds can or can’t do, Colorado state government isn’t going to join any jack-booted drive to crush our health care freedom.

Anyway, the Post is also wrong on the constitutional issue.   First, it’s flat wrong about what the Constitution really means.  Second, it may well be wrong on how the courts will rule.

According to the real meaning of the Constitution—as the Founders understood it—a “tax” is a levy to raise revenue for the government.  Obama Care’s mandates aren’t designed to raise money.  They are designed purely to punish innocent people.  President Obama himself has denied they are a form of taxation.   Even if they were a form of taxation, they would violate the Constitution’s requirement that direct taxes, other than income taxes, be apportioned among the states.  The modern Supreme Court still respects that rule.

So the only way to justify Obama Care constitutionally is to claim that Congress can take over the health care system because the Constitution grants Congress power to pass “necessary and proper” laws to “regulate Commerce . . . among the several States.”

But as the Constitution uses the term, “Commerce” doesn’t include all economic activity.  It means trade among merchants, mercantile finance, mercantile insurance and a few other items.  It does not include health care.  It does not include health insurance.  And—as advocates of the Constitution explained while the document was being debated—it does not include social services.

Even if it did, Obama Care goes far beyond regulating insurance “among the several States” to include health care decisions made solely within individual states.

Now, I recognize that the modern Supreme Court has stretched the congressional Commerce Power far beyond its original meaning.  The Court’s persistent misreading in this area is probably what the Post is counting on.  But even under its modern rulings, the Court has never gone as far as those who claim that regulating “Commerce” includes punishing innocent people because they refuse to engage in commerce.

The Constitution grants Congress power to “define and punish Piracies and Felonies committed on the High Seas.”  Does that mean Congress has power to punish people who refuse to engage in piracy?   The Constitution grants Congress power to “provide for the Punishment of counterfeiting.”  Does that includes authority to punish citizens who refuse to counterfeit?

The Post should consider one more point: Today the feds are attacking doctors, nurses, insurers, and patients, but not newspapers.   But tomorrow they may be coming for the editorial board of the Post.   Yes, the Constitution says that “Congress shall make no law . . . abridging the freedom of . . . . the press.”  But if we read that language the way the Post reads the Commerce Clause, perhaps it means Congress may make laws abridging freedom of the press.

The Post needs to remember that there’s nothing unscrupulous and power-hungry people can’t do with a little clever wordplay.  Our Constitution is too important to subject it to that kind of treatment.

One question I often get (that is, I, Rob Natelson, not Jon Caldara, although he may get the question, too)  is “Can you recommend a book I that will tell me in simple language what the entire Constitution was originally supposed to mean?”

I haven’t been able to recommend one, so I wrote The Original Constitution: What It Actually Said and Meant. It is now available in e-book form. Hard copy will follow in a few weeks.  (Folks at the Independence Institute assisted with production.)

The book surveys in fairly easy language the legal meaning of the entire Constitution as of late 1791, just after adoption of the Bill of Rights.

(Another shameless plug:  For those interested a more academic approach, Cambridge University Press will be publishing my co-authored work, The Origins of the Necessary and Proper Clause, later this year.)

A few law professors have been arguing that it’s constitutional to force people to buy health insurance, because the Constitution gives Congress power to “regulate Commerce among the several States.”

Under the very broad formulation of the federal Commerce Power issued by the modern Supreme Court, Congress can regulate not just interstate commerce and certain related activities (as the Founders intended) but also any “economic activities” that “substantially affect interstate Commerce.” This, the new argument goes, includes a power to punish non-activity (i.e., failure to buy insurance).

Let’s examine some of the implications of this novel argument:

* The Constitution grants Congress authority to “provide for the Punishment of counterfeiting. . . ” By the same reasoning, Congress enjoys power to punish anyone who doesn’t counterfeit.

* The Constitution grants Congress authority to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Hence, Congress may punish anyone who does not commit those crimes.

* The Constitution grants Congress’ authority to “declare the Punishment of Treason.” Hence, Congress may “declare the Punishment” for people who do not commit treason.

These examples show how ridiculous such “reasoning” is. Ridiculous, but also dangerous, because it can be used to obliterate meaning from the constitutional language, and, thereby, all constitutional limits on government.

Some of the Founders warned us that unscrupulous advocates would try to subvert the Constitution in this way — by arguments those Founders called “sophistry.”

Sophistry is defined by Merriam-Webster’s Collegiate Dictionary (11th ed.) as “subtly deceptive reasoning or argumentation.” The term comes from the practice of professional mouth-pieces in ancient Greece, who to demonstrate their rhetorical prowess would construct clever arguments for a proposition, and then just as slyly tear it down.