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.

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.

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.

When: September 12th, 2009
Time: 9am to 12 noon.
Location: University of Denver, Sturm Hall, Davis auditorium, 2nd floor
2000 East Asbury Ave.
Denver, CO 80208
Price: $10, (parking available for $6).

Lecturers: Mike Holler, Paul Prentice, and Fred Holden.

Whenever legal restrictions on abortion are proposed, many express doubt about the constitutionality of interjecting government between patients and their doctors.

But those voices have been mostly silent about the constitutionality of empowering the federal government with decisions over the life, death, and health of three hundred million Americans.

In fact, the constitutional difficulties are profound. This is certainly so for those who believe the Constitution means what our Founders understood it to mean. But it is even true for those interested only in modern Supreme Court jurisprudence.Following are some of the ways in which current health care proposals potentially clash with our nation’s Basic Law:

Enumerated powers. The Constitution grants the federal government about thirty-five specific powers – eighteen in Article I, Section 8, and the rest scattered throughout the document. (The exact number depends on how you count.) None of those powers seems to authorize control of the health care system outside the District of Columbia and the federal territories.

To be sure, since the late 1930s, the Supreme Court has been tolerant of the federal welfare state, usually justifying federal ad hoc programs under specious interpretations of the congressional Commerce Power. But, except in wartime, the Court has never authorized an expansion of the federal scope quite as large as what is being proposed now. And in recent years, both the Court and individual justices – even “liberal” justices – have said repeatedly that there are boundaries beyond which Congress may not go.

The greatest Chief Justice, John Marshall, once wrote that if Congress were to use its legitimate powers as a “pretext” for assuming an unauthorized power, “it would become the painful duty” of the Court “to say that such an act was not the law of the land.” But health care bills such as the Obama-favored HB 3200 do not even offer a pretext. The only reference to the Constitution in HB 3200 is a severability clause that purports to save the remainder of the bill if part is declared unconstitutional. HB 3200 contains no reference to the Commerce Power or to any other enumerated power.

Excessive Delegation. The Constitution “vests” legislative authority in Congress. Congress is not permitted to delegate that authority to the executive branch. This is another realm in which the modern Supreme Court has been lenient, while affirming that there are limits. Thus, in Schecter Poultry Corp. v. United States (1935), a unanimous court struck down a delegation of authority that looked much like the delegations in some current health care proposals.

Substantive Due Process. The Substantive Due Process doctrine was not contemplated by the Founders, but the courts have engrafted onto constitutional jurisprudence. The courts employ this doctrine to invalidate laws they think are unacceptably intrusive of personal liberty or privacy. The most famous modern Substantive Due Process case is Roe v. Wade, which struck down state abortion laws that intruded into the doctor-patient relationship. But the intrusion invalidated in Roe was insignificant compared to the massive intervention contemplated by schemes such as HB 3200. “Global budgeting” and “single-payer” plans go even further, and seem clearly to violate the Supreme Court’s Substantive Due Process rules.

Tenth Amendment. Technically, the Tenth Amendment is merely a declaration that the federal government has no powers beyond those enumerated in the Constitution. However, the modern Supreme Court has cited the Tenth Amendment in holding that Congress may not “commandeer” state decision making in the service of federal goals.

It is permissible for Congress to condition grants of funds to the states, if the conditions are related to the funding program and are not “coercive.” Thus, in 1986 the Court ruled that Congress may, because of highway safety issues, reduce highway grants by five percent to states refusing to raise their drinking ages to 21. But the mandates that some health care plans would impose on states certainly could be found “coercive,” both because they are excessive (HB 3200, for instance, would withdraw all Public Health Service Act money from non-cooperating states) and because they are unrelated to the program.

A major goal of our Constitution and Bill of Rights is to limit government power, especially federal power. National health care proposals would increase that power greatly, so it is not surprising that those proposals have constitutional difficulties. Whatever the merits of federal control of health care, moving in that direction is (as former Justice David Souter might say) a change of “constitutional dimension.” The proper way to make such a change is not through an ordinary congressional bill. The proper way is by constitutional amendment.