128 Harvard Law Review Forum 39 (2014)
16 Pages Posted: 15 Nov 2014 Last revised: 12 Jan 2016
Date Written: November 10, 2014
Few constitutional clauses have been the focus of so many hopes and fears as the Necessary and Proper Clause.
In his Foreword, Professor John Manning puts forward a powerful vision of the clause, challenging the current approach of the Supreme Court. Focusing on the text, Manning suggests that it “has the unmistakable feel of an ‘empty standard,’” and is therefore a source of great interpretive discretion. Manning further argues that the text gives that interpretive discretion to Congress. Many of the congressional power decisions of the Roberts and Rehnquist Courts might fail under this critique.
Constitutional text is a natural focal point for those who challenge current judicial practice, and Manning is right to ask whether the Court’s doctrines have transgressed or misread the text. But Manning’s proposed reading of the text is not the only one. To choose between them, we need additional sources or theories of meaning, and at least some of them will point to a different assessment than Manning’s.
In this Response, I argue that historical practice, McCulloch v. Maryland, and the text itself all permit, though may not require, a less deferential judicial interpretation than Manning advocates.
Keywords: Necessary and Proper, Deference, Great Powers, McCulloch, Manning
Suggested Citation: Suggested Citation
Baude, William, Sharing the Necessary and Proper Clause (November 10, 2014). 128 Harvard Law Review Forum 39 (2014); U of Chicago, Public Law Working Paper No. 506. Available at SSRN: https://ssrn.com/abstract=2523965