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The Choice Between Madison and FDR

12 Pages Posted: 16 Mar 2012  

Randy E. Barnett

Georgetown University Law Center

Date Written: March 14, 2012


This exchange is about three clauses that have often been used by the courts since the New Deal to expand federal power: the Commerce Clause, the Necessary and Proper Clause, and the Taxation Clause, from which the spending power has (at least until today) been construed. This Essay addresses the originalist interpretation of the Necessary and Proper Clause.

Keywords: Constitutional law, Federal power, Originalism, Constitutional interpretation

JEL Classification: K00, K1, K3

Suggested Citation

Barnett, Randy E., The Choice Between Madison and FDR (March 14, 2012). Harvard Journal of Law and Public Policy, Vol. 31, 2008; Georgetown Public Law Research Paper No. 12-039. Available at SSRN:

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)


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