YEAH, BUT IS IT ALSO "PROPER"?

What does the word "proper" mean in the Necessary and Proper clause? In his recent book, Randy Barnett argues that the Necessary and Proper clause establishes judicially enforceable limits on congressional power. In his argument, the word "proper" here carries a lot of weight. See 184-9, where he searches for the meaning of the term, and the entirety of chapter 11, titled "The Proper Scope of Federal Power: The Meaning of the Commerce Clause." At the beginning of chapter 11 we read:

The Necessary and Proper Clause commands that all laws passed by Congress shall be proper. When a government restriction of liberty is challenged by an affected citizen, a Presumption of Liberty means that the citizen wins, unless the government can justify its restrictions as proper. A "proper" exercise of power is one that is within the jurisdiction of the branch or department in question and that does not violate the rights retained by the people. (274)

(As a side note: the uninitiated might not realize how big a game animal Barnett has in his sights, but suffice it to say that Barnett's position would probably lead him to condemn much of congressional activity throughout U.S. history as unconstitutional and would probably lead him to recommend that the courts begin to invalidate whole chapters of the statute book. Most current congressional regulation in commercial matters would probably fail Barnett's test for constitutionality, as would the 1960s-era civil rights laws that were based on congressional powers to regulate interstate commerce; he may have an alternate reason for agreeing with these civil rights laws, but in the absence of congressional disavowal of the Commerce Clause basis for them, Barnett's position requires that the courts strike them down. The general form of the book's argument -- that constitutional law can only be legitimate if it is fundamentally different from the form it takes today -- is a feature of libertarian thought that in itself needs to be taken seriously, but I'll try to say more about that later.)

It's not clear to me at all that the word "proper" should carry that much weight, however. George Washington asked his first attorney general, Edmund Randolph -- present at the Constitutional Convention but not a signer of the document, because he feared that the government it created was "the foetus of a monarchy" -- whether it was his considered opinion that the Constitution allowed Congress to charter a national bank. He thought it didn't, but what is interesting about Randolph's argument is that he also hinted that the word "proper" in the phrase "necessary and proper" didn't have a separate meaning:

The phrase, "and proper," if it has any meaning, does not enlarge the power of Congress, but rather restricts them. For no power is to be assumed under the general clause, but such as is not only necessary but proper, or perhaps expedient also. But as the friends to the [bank] bill ought not to claim any advantage from this clause, so ought not the enemies to it; to quote the clause as having a restricting effect; both ought to consider it among the surplusage which as often proceeds from inattention as caution. (from Brest, Levinson, Balkin, Amar, Processes of Constitutional Decisionmaking, p.12; emphasis added)

Students always find this passage quite stunning, and they should, coming as it does from a member of the Constitutional Convention and the first Attorney General. Barnett cites Randolph approvingly in several passages in the book; he even refers directly to the letter from Randolph from which the above passage was drawn. As far as I can tell, however, Randolph's suggestion that the word "proper" is essentially meaningless does not draw Barnett's attention, nor, as far as I can tell, does it draw the attention of Gary Lawson and Patricia Granger, whose 1993 article "The 'proper' scope of federal power: a jurisdictional approach to the sweeping clause" in the Duke Law Journal (43 Duke L.J. 267) Barnett relies on in his argument as well.

Perhaps Randolph was suffering from massive cognitive dissonance. Earlier in his book, Barnett quotes approvingly from another of Randolph's opinions as Attorney General, in which Randolph argues that the records of the constitutional convention are not decisive in determining what the meaning of any given clause might be. Instead, Barnett takes Randolph to mean, what is critical is the "original public meaning" of the phrase in question (93-4). To the extent that Randolph is arguing that inattention in the drafting of the document has any significance, he would seem to be conflicting with his general views on constitutional interpretation as understood by Barnett.

Unless, of course, the "original public meaning" of the word "proper" is that it was a kind of formality, a rhetorical flourish, of no more structural significance than a raking cornice. Given Barnett's constant references to the need to take "the text" seriously, I suppose that it's understandable that Randolph's subversive suggestion didn't make it into Barnett's argument, but I would like to see him grapple with this problem nontheless. It seems to me that the problem is quite fundamental. If even the language in the Constitution can have rhetorical significance that might reasonably be said to crowd out any reference or command, then constitutional interpretation itself needs to be looked at in a much more pragmatic, multifaceted way than Barnett seems interested in advancing. I'm fine with that, but in order to cover the revolutionary potential of his approach, Barnett needs to clothe the argument in the comforting garb of constitutional originalism, interpretive authenticity, a reference to our *Founding Document*. Over at Southern Appeal, the word is "fiction," and I'm inclined to agree as a preliminary matter. This is not to say that the book isn't good, of course. I'm definitely enjoying my time with it.

NOTE: Minor grammatical corrections made above.