Title: The Necessary and Proper Clause
Original CoS Document (slug): the-necessary-and-proper-clause
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Attached File: Article20_TheNecessaryAndProperClause_COSA122022.pdf
The Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention\rBy Robert Natelso
Created: 2024-02-08 15:22:44
Updated: 2025-02-08 19:00:01
Published: 2024-02-08 03:00:00
Converted: 2025-04-14T20:16:34.110119856
The Framers inserted the “Convention
for proposing Amendments” in the
Constitution to provide the states
with a way of obtaining constitutional
amendments without federal interference.
THE NECESSARY AND PROPER CLAUSE
DOES NOT EMPOWER CONGRESS TO
CONTROL AN AMENDMENTS CONVENTION
Robert Natelson, Independence Institute’s Senior Fellow in Constitutional Jurisprudence and Head of the Institute’s
Article V Information Center
Updated November 2022
I heard a presentation by a spokesman for
a group that claims to defend the Consti-
tution and revere the Founders. Yet the
spokesman trashed the Constitution’s
Framers for allegedly exceeding their au-
thority and claimed they added a provision
that largely rendered another provision
useless. In other words, the spokesman
charged the Framers with being both (1)
dishonorable and (2) incompetent.
The Framers inserted the “Convention
for proposing Amendments” in the Consti-
tution to provide the states with a way
of obtaining constitutional amendments
without federal interference. Tench Coxe,
a leading advocate for the Constitution
during the ratification debates, pointed
out that the convention device allows the
states to obtain whatever amendments
they choose, “although the President,
Senate and Federal House of Representa-
tives should be unanimously opposed to
each and all of them.”
The spokesman, however, asserted that the
Constitution allowed Congress, through the
Necessary and Proper Clause, to dictate,
either in the convention call or by previous
legislation, how an amendments convention
is structured and how commissioners (dele-
gates) are selected and apportioned.
The claim that Congress can use the Nec-
essary and Proper Clause to structure
the convention was first advanced in the
1960s, and has been repeated numerous
times since then. A Congressional Re-
search Service report published earlier this
year noted that some in Congress have
taken the same line, although the report
did not actually endorse it.
But pause to consider: Why would the
Framers place in the Constitution a meth-
od by which Congress could largely control
a convention created to bypass Congress?
Were the Framers that stupid?
Of course not. Most of them were high-
ly experienced and extremely deft legal
drafters.
Behind the belief that the Necessary and
Proper Clause empowers Congress to
structure the convention are three dis-
tinct assumptions—all erroneous. They
are (1) that the scope of Congress’s author-
ity under the Necessary and Proper Clause
is broader than it is, (2) that the Clause cov-
ers the amendment process, and (3) that
ordinary legislation may govern the amend-
ment process.
The Necessary and Proper Clause is the
last item in the Article I, Section 8 list of
congressional powers. It reads:
“The Congress shall have Power…To make all
Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitu-
tion in the Government of the United States,
or in any Department or Officer thereof.”
It happens that the most extensive
treatment of the Necessary and Proper
Clause is an academic book I co-
authored with Professors Gary Lawson,
Guy Seidman, and Geoff Miller: The
Origins of the Necessary and Proper Clause
(Cambridge University Press, 2010) (cited
by Justice Thomas in a Supreme Court
case in 2014 and apparently relied on by
Chief Justice Roberts in 2012). This book
reveals the Necessary and Proper Clause to
be a masterpiece of legal draftsmanship.
Continued on back page
Continued from front page
The Clause was based on usage common
in 18th-century legal documents. It is not
a grant of authority, but a rule of interpre-
tation. It tells us to construe certain enu-
merated powers as the ratifiers understood
them, rather than in an overly narrow way.
In legal terms, the Necessary and Proper
Clause informs us that those enumerated
powers include “incidental” authority.
Even if the Clause did apply to the amend-
ment process, the authority “incidental”
to Congress’s call would be quite narrow.
An entity that calls an interstate conven-
tion always has been limited to specifying
the time, place, and subject matter. It is the
state legislatures that control selection of
their own commissioners.
But, in fact, the Necessary and Proper
Clause does not extend to the amendment
process. To explain:
The Constitution includes numerous
grants of power. These grants are made to
Congress, to the President, to the courts,
to the Electoral College, and to state legis-
latures, state governors, and various con-
ventions. An entity exercising a power un-
der one of those grants is said to exercise a
“federal function.”
The Necessary and Proper Clause is
crafted to apply to most federal functions,
but it also excludes a number of them.
Specifically, it covers only the grants
listed in Article I, Section 8, and those
vested in the “Government of the United
States” and in “Departments” and
“Officers” of that government.
In other words, the Clause omits con-
stitutional grants made to entities that
are not part of the “Government of the
United States,” even when those entities
exercise “federal functions.” See, for ex-
ample, Ray v. Blair, 343 U.S. 214 (1952)
(holding that presidential electors, who
ultimately derive their power from the
Constitution, exercise a federal function
but are not federal officers or agents). The
convention for proposing amendments is
one of a handful of entities that falls into
this category.
Even if we did assume, for sake of argu-
ment, that Congress is a “Department” of
the federal government for other purposes,
the rules for Article V are different.
The difference is that (according to the
courts) when Congress and state legisla-
tures act in the amendment process, they
do not act as the legislative branches of their
respective governments. Instead, they act
as ad hoc assemblies for registering the pop-
ular will. They can exercise only the power
granted by Article V, and not powers grant-
ed by other parts of the U.S. Constitution
or by state constitutions. Thus, in Idaho v.
Freeman (1981), a federal court ruled that:
“Congress, outside the authority granted by
Article V, has no power to act with regard to
an amendment, i.e., it does not retain any of
its traditional authority vested in it by Ar-
ticle I” [which includes the Necessary and
Proper Clause].
(This case was later vacated as moot, but
there were no problems with the merits
of the ruling.) Or, as the Supreme Court
of Missouri pointed out when addressing
the state legislature’s Article V functions,
“[The legislature] was not, strictly speaking,
performing the functions of a legislative body
for the state, but was acting as a representa-
tive of the people, pursuant to authority del-
egated to it by the federal Constitution. . . ”
State ex rel. Tate v. Sevier (1933).
(The U.S. Supreme Court denied cer-
tiorari in that case, meaning it refused to
consider reversing this decision.)
Again, when legislatures act under Article
V they do so as separate assemblies, not
as the legislative branches of their govern-
ments. This is a very old principle, dating
back to 1798, when the Supreme Court
held that congressional amendment pro-
posals do not need presidential signature.
See also United States v. Sprague (1931).
Well, if Congress cannot insert language
in the “call” structuring the convention,
can it pass laws for the same purpose?
Again, the answer is “no.” A long list of
20th century cases from courts at all lev-
els holds that the amendment process is
governed by the express and implied pro-
visions of Article V, not by other sources
of law, such as statutes, state constitu-
tions, or ordinary legislative rules. See,
for example, Leser v. Garnett (1922) and
Dyer v. Blair (1975).
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Why would the Framers place in the
Constitution a method by which Congress
could largely control a convention
created to bypass Congress? Were the
Framers that stupid? Of course not.