Unnecessary and unintelligible.

AuthorGraber, Mark A.
PositionConstitutional Stupidities: A Symposium

No constitution produced after much deliberation by reasonably intelligent persons is likely to contain passages that are "stupid" in the sense of being "foolish; dull in intellect; nonsensical."(1) Many constitutional provisions quickly outlived their original purpose (the electoral college)(2) and others are venal (the not-so oblique protections of slavery). Nevertheless, contemporary claims that some constitutional provision is plainly stupid probably overlook the sound reasons the framers had for inserting that particular language into the constitutional text.

Still, if any provision in the constitution merits the appellation "stupid," it is the conclusion of Article I, [sections] 8, which states that "the congress shall have the Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Understood literally, the clause prevents congress from exercising vital constitutional powers. More significantly, the necessary and proper clause satisfies historical tests for stupidity: The framers did not seriously consider its meaning, and prominent defenders of the constitution subsequently confessed that the provision was unnecessary and unintelligible.

The necessary and proper clause apparently establishes a constitutional standard that legislation rarely meets. No necessary means exist in many cases for realizing certain purposes. There is, for example, no necessary way of leaving a room with two doors. Although many policies help further such government goals as reducing poverty, promoting peace or preventing crime, no single legislative strategy seems the necessary means for achieving those ends. The phrase "necessary and proper" also obliterates the distinction between constitutionality and wisdom, a distinction central to the framer's goal of eliminating basic regime questions from normal political discourse.(3) A measure that is unwise cannot be a necessary means for achieving some important constitutional purpose. Hence, a literal reading of the necessary and proper clause suggests imprudent measures must be unconstitutional.

Better would have been emulation of the Massachusetts constitution and its authorization of "wholesome and reasonable orders, laws, statutes, and ordinances."(4) No one besides John Marshall and Alexander Hamilton, however, seriously contends that "necessary ... means no more than needful, requisite, incidental, useful or condusive to,"(5) even if one rejects...

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