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11/18/2019

Rob Natelson on McCulloch v. Maryland
Michael Ramsey

At the Epoch Times, Rob Natelson: Why McCulloch v. Maryland—Now 200 Years Old—Is Not a ‘Big Government’ Manifesto.  From the introduction:

This year marks the 200th anniversary of the Supreme Court’s ruling in McCulloch v. Maryland. In that case, Chief Justice John Marshall upheld Congress’s power to charter a national bank—a distant forerunner of the modern Federal Reserve System.

Nearly all constitutional writers consider McCulloch one of the Supreme Court’s most important cases. They are correct to do so.

But many also depict the McCulloch ruling as justifying vast federal powers under a broad interpretation of the Constitution. They portray Marshall as a “big government” judge. That portrayal is wrong.

And from further on, some important points about the necessary and proper clause: 

The Constitution lists the powers of Congress. These include such functions as national defense, borrowing money, taxing, the postal system, the monetary system, and regulating foreign and interstate commerce. In addition to these explicit items, the Constitution adds that “the Congress shall have Power … To make all Laws, which shall be necessary and proper for carrying into Execution” its listed powers.

The Constitution’s list of explicit powers doesn’t include chartering a national bank. In McCulloch, the court had to determine whether chartering the bank was “necessary and proper” to carry out Congress’s explicit powers.

Marshall, like other lawyers of his time, was familiar with documents by which one person or group granted authority to another—documents such as powers of attorney, wills, trust instruments, and statutes. The phrase “necessary and proper” was common in such documents.

As used in the Constitution, the “necessary and proper” phrase meant that in addition to the functions explicitly listed, the person or group receiving authority could exercise incidental powers. These were lesser powers intended to accompany the listed ones. Lesser powers usually were incidental if they were customary or necessary to carrying out the listed functions.

For example, it is customary for a manager hiring employees to investigate candidates before hiring them. So a manager with power to hire employees usually has incidental authority to investigate candidates. Similarly, a real estate broker with authority to sell a vacant building may have incidental authority to clean it for showing.

In like manner, the Constitution’s grant of power to Congress to impose taxes carries with it incidental authority to obtain office space for revenue officers.

Marshall’s McCulloch opinion shows that he understood the necessary and proper clause as embodying the law of incidental powers ...

Seems right to me.  Correctly read, I don't regards McCulloch as either a "big government" opinion or as a nonoriginalist opinion.