The Agency Law Origins of the Necessary and Proper Clause

80 Pages Posted: 4 Jan 2012

See all articles by Robert G. Natelson

Robert G. Natelson

Independence & Montana Policy Institutes

Date Written: 2004


The U.S. Constitution's Necessary and Proper Clause was based on provisions very common in Founding-Era documents that empowered agents and other fiduciaries. The clause embodied both the common law doctrine of incidental powers (by which the document conveyed unexpressed subsidiary powers meeting certain well-understood criteria), and a requirement that congressional laws enacted pursuant to incidental authority comply with certain fiduciary requirements.

Keywords: constitution, necessary and proper, incidental powers, elastic clause, sweeping clause, federal power, states rights

JEL Classification: K1, K10, K19

Suggested Citation

Natelson, Robert G., The Agency Law Origins of the Necessary and Proper Clause (2004). Case Western Reserve Law Review, Vol. 55, p. 243, 2004. Available at SSRN:

Robert G. Natelson (Contact Author)

Independence & Montana Policy Institutes ( email )

727 E. 16th Ave.
Denver, CO 80203
United States
303-279-6536 (Phone)


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