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The Origins of the Necessary and Proper Clause


  • Page extent: 190 pages
  • Size: 228 x 152 mm
  • Weight: 0.48 kg

Library of Congress

  • Dewey number: 342.73/052
  • Dewey version: 22
  • LC Classification: KF4930 .O75 2010
  • LC Subject headings:
    • Legislative power--United States
    • United States.--Congress
    • Legislation--United States
    • Legislators--United States
    • Constitutional law--United States

Library of Congress Record


 (ISBN-13: 9780521119580)

The Origins of the Necessary and Proper Clause
Cambridge University Press
9780521119580 - The Origins of the Necessary and Proper Clause - By Gary Lawson, Geoffrey P. Miller, Robert G. Natelson and Guy I. Seidman

The Origins of the Necessary and Proper Clause

The Necessary and Proper Clause is one of the most important parts of the U.S. Constitution. Today this short thirty-nine-word paragraph is cited as the legal foundation for much of the modern federal government. Yet constitutional scholars have pronounced its origins and original meaning a mystery.

Through three independent lines of research, the authors trace the lineage of the Necessary and Proper Clause to the everyday law of the founding era – the same law that American founders such as Madison, Hamilton, and Washington applied in their daily lives. The origins of the Necessary and Proper Clause can be found in the founding-era law governing agency, public administration, and corporations. All of those areas were undergirded by common principles of fiduciary responsibility – reflecting the founders’ view that a public office is truly a public trust. This explains the choice of language in the clause and provides clues about its meaning. This book thus serves as a reference source for scholars seeking to understand the intellectual foundations of one of the Constitution’s most important clauses.

Gary Lawson is a professor of law and the Abraham and Lillian Benton Scholar at Boston University School of Law. Professor Lawson has authored (with Guy Seidman) The Constitution of Empire: Territorial Expansion and American Legal History, five editions of a casebook on Federal Administrative Law, and more than sixty articles in law reviews and other journals.

Geoffrey P. Miller is the Stuyvesant P. Comfort Professor of Law at New York University Law School. Miller is the director of NYU Law School’s Center for the Study of Central Banks and Financial Institutions and is a founder of the Society for Empirical Legal Studies.

Robert G. Natelson is Senior Fellow in Constitutional Jurisprudence at Independence Institute, and formerly professor of law at the University of Montana. He is an expert on the framing and adoption of the United States Constitution, and on several occasions he has been the first to uncover key background facts about the Constitution’s meaning.

Guy I. Seidman is an assistant professor of law at the Interdisciplinary Center in Herzliya, Israel. He is a former visiting scholar at the University of Chicago and Northwestern University. Dr. Seidman is primarily interested in administrative and constitutional law, and in comparative law and legal traditions.

The Origins of the Necessary and Proper Clause

Gary Lawson

Boston University School of Law

Geoffrey P. Miller

New York University School of Law

Robert G. Natelson

Independence Institute

Guy I. Seidman

The Interdisciplinary Center, Herzliya, Israel

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo, Mexico City

Cambridge University Press
32 Avenue of the Americas, New York, ny 10013-2473, usa
Information on this title:
© Gary Lawson, Geoffrey P. Miller, Robert G. Natelson, and Guy I. Seidman 2010

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published 2010
Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication dataThe origins of the necessary and proper clause / Gary Lawson ... [et al.].p. cm.Includes bibliographical references and index.ISBN 978-0-521-11958-0 (hardback)1. Legislative power – United States. 2. United States. Congress.3. Legislation – United States. 4. Legislators – United States.5. Constitutional law – United States. I. Lawson, Gary, 1958– II. Title.KF4930.O75 2010342.73′052–dc22 2010018051

isbn 978-0-521-11958-0 Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

As with all things, to Patty, Nathaniel, and Noah.

Gary Lawson

March 2010

This book is dedicated in loving memory to my parents, Ady Seidman (1930–2009) and Lea Seidman (né Carmi, 1934–1999).

Guy Seidman

March 2010


1     Raiders of the Lost Clause: Excavating the Buried Foundations of the Necessary and Proper Clause
2     Discretionary Grants in Eighteenth-Century English Legislation
Gary Lawson and Guy I. Seidman
3     An Ocean Away: Eighteenth-Century Drafting in England and America
Gary Lawson and Guy I. Seidman
4     The Legal Origins of the Necessary and Proper Clause
Robert G. Natelson
5     The Framing and Adoption of the Necessary and Proper Clause
Robert G. Natelson
6     Necessity, Propriety, and Reasonableness
Gary Lawson and Guy I. Seidman
7     The Corporate Law Background of the Necessary and Proper Clause
Geoffrey P. Miller


Gary Lawson is grateful to Robert P. Smith for creating and funding the David Saul Smith Award, which was instrumental in producing this book. Professor Lawson is also grateful to the Abraham and Lillian Benton Fund for support and to participants at a workshop at Boston University School of Law for characteristically insightful comments. Portions of Chapter 6 are based on material from Gary Lawson and Guy I. Seidman, The Jeffersonian Treaty Clause, 2006 Ill. L. Rev. 1 (2006), and other portions of that chapter exist only because of the prior scholarship of Professor Robert G. Natelson.

Gary Lawson and Guy I. Seidman March 2010

A version of Geoffrey P. Miller’s chapter was previously published in The George Washington Law Review and is available at 79 Geo. Wash. L. Rev. 1 (2010). I wish to thank Sharae M. Wheeler for superb research assistance on this project.

Geoffrey P. Miller March 2010

Among those deserving credit for my scholarship in general are my wife, Elizabeth J. Natelson, who over the years has supported my research in every way (including some sharp editing), and my parents, Dr. Sydney and Florence Natelson, who paid for my education. Most of this scholarship was conducted while I was a faculty member at The University of Montana, and thus was made possible through the generous support of Montana taxpayers.

A number of people provided assistance specific to this book – among them helpful and intelligent librarians, who located and guided me through the ancient sources: the staff and administration of the Bodleian Law Library, University of Oxford; Dr. Norma Aubertin-Potter, librarian-in-charge of the Codrington Library at All-Souls College, University of Oxford; Dr. Vanessa Hayward, keeper of the Middle Temple Library, London, and her staff; Ms. Virginia Dunn and the Archives Research Services staff at the Library of Virginia in Richmond; and Fritz Snyder, Stacey Gordon, Philip Cousineau, and Robert Peck, all at the Jameson Law Library at The University of Montana.

Finally, great credit goes to Gary Lawson, who conceived of this book, brought the contributors together, wrote much of it, and guided it to fruition.

Robert G. Natelson Missoula, Montana March 2010

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