78 Pages Posted: 22 Oct 2015 Last revised: 12 May 2016
Date Written: April 21, 2016
Constitutional doctrine is often shaped by the details of the constitutional text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.” Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship. That assumption is incorrect.
This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, work together as a single complex expression. It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale,” “open and notorious.” When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual. Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty. If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action. The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, while “proper” instructs us not to interpret “necessary” in its strictest sense. “Proper” also reminds us that the incidental power Congress is exercising must belong to an enumerated power.
To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland. The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.
Keywords: necessary and proper, cruel and unusual, hendiadys, constitution, interpretation, figure of speech
Suggested Citation: Suggested Citation
Bray, Samuel L., 'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution (April 21, 2016). 102 Virginia Law Review 687 (2016); UCLA School of Law Research Paper No. 15-43. Available at SSRN: https://ssrn.com/abstract=2676347
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