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09/05/2022

Steven Calabresi, Gary Lawson & Elise Kostial: What McCulloch v. Maryland Got Wrong [Updated]
Michael Ramsey

Steven G. Calabresi (Northwestern University - Pritzker School of Law), Gary Lawson (Boston University School of Law) & Elise Kostial (Yale Law School J.D. '22) have posted What McCulloch v. Maryland Got Wrong: The Original Meaning of 'Necessary' is Not 'Useful', 'Convenient', or 'Rational' (109 pages) on SSRN.  Here is the abstract:

McCulloch v. Maryland, echoing Alexander Hamilton nearly thirty years earlier, claimed of the word 'necessary' in the Necessary and Proper Clause: 'If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports that one thing is convenient, or useful . . . to another.'. Modern case law has translated that understanding into a rational-basis test that treats the issue of necessity as all but nonjusticiable; The Supreme Court has never found a congressional law unconstitutional on the ground that it was not 'necessary . . . for carrying into Execution' a federal power. Marshall, and Hamilton before him, were simply wrong in their empirical claim about the meaning of 'necessary'. We show, using founding-era dictionaries, an extensive corpus linguistic study of founding-era sources, and intertextual and intratextual analysis, that the original meaning of 'necessary' cannot plausibly be equated with 'convenient', 'useful', 'conducive to', or 'rational'. The case against Marshall and Hamilton’s linguistic claim is simply overwhelming. That does not mean that executory laws are 'necessary' only if 'indispensable', as the State of Maryland, echoing Thomas Jefferson, argued in McCulloch. While that strict meaning finds support in many of the sources that we examine, it does not constitute the best meaning in the specific context in which the term 'necessary' appears in the Constitution: A clause defining the incidental powers of agents. In that setting, familiar from the law of agency, a better fit is James Madison’s view that executory laws are necessary if they exhibit “a definite connection between means and ends, ”'showing some obvious and precise affinity' between the laws and the powers which they implement. In modern parlance drawn from another context, one might say that executory laws are necessary if they are congruent and proportional to the task to which they are put. Our principal goal in this article is not to defend this Madisonian view of necessity but simply to show that Marshall and Hamilton’s linguistic claim about the meaning of 'necessary' is false. We do not offer a comprehensive account of the original meaning of the Necessary and Proper Clause beyond this simple observation. But because McCulloch’s dictum has become canonical, we examine some of the leading cases involving federal power to see whether substituting a congruence-and-proportionality test for the test of usefulness, convenience, or rationality would make a large difference in outcomes. Holding all other elements and applications of doctrine equal, we find only a few cases in which getting right the original meaning of 'necessary' might make a difference – and those cases are already widely seen as anomalous under current doctrine. Nonetheless, 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.

Agreed, and I think the conclusion is more significant than the abstract (toward the end) suggests.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended.  Download it while it's hot!"

UPDATE #2:  At Volokh Conspiracy, Samuel Bray comments: Is "Necessary and Proper" a Hendiadys? Responding to Calabresi, Kostial, and Lawson.  From the introduction:

Like the Dude, McCulloch v. Maryland abides. Steve Calabresi, Elise Kostiel, and Gary Lawson have a new paper called "What McCulloch v. Maryland Got Wrong: The Original Meaning of 'Necessary' Is Not 'Useful,' 'Convenient,' or 'Rational.'" Anyone interested in McCulloch should read their article, but I want to keep the conversation going about whether "necessary and proper" is a hendiadys. That's a claim I advanced in "Necessary AND Proper" and "Cruel AND Unusual": Hendiadys in the Constitution. A hendiadys occurs when two words, separated by a conjunction, are used as a single unit of meaning (with each contributing something distinctive--not mere repetition).

In text, the authors suggest that my argument is opposed to Chief Justice Marshall's, because he treats each term as having "independent significance," while if the phrase is a hendiadys that would not be true. (I'm not sure Chief Justice Marshall actually argues that, but let's leave that aside for now.) The authors then drop [an extensive] footnote ...  [quotation of footnote omitted].

There are three different arguments here, and I'll give the briefest of responses with pointers for anyone who wants to read more....