17 Jan 2023


The "Necessary and Proper" Clause of the Constitution

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The Constitution of the Unites States of America is the source of the supreme law in the Nation. It is made up of seven articles that explain the frame of the government, power separation, concepts of federalism, and the procedures used to ratify the constitution. Since its installation in the year 1789, it has undergone several amendments. Perhaps one of the clauses that have been a recipient of mixed reactions is the Article 1 section 18 known as the “Necessary and Proper Clause” (Reinstein, 2015). This paper seeks to explain the meaning of the clause, its consequences and provide an example where it has been utilized to justify the law .

Meaning of the Clause 

The term “Necessary and Proper Clause” was first used by an associate justice named Louis Brandeis in the year 1926. He used the term while writing a court decision that upheld a law that restricted the use of alcohol for medicinal purposes. The power to do this was cited as contained in the 18 th Amendment. It was the precursor to the prohibition law. The term became widely adopted and received congressional approval in 1994.

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The full text of the clause is: “ The Congress shall have the Power to make all Laws which shall be needed and right for execution of the foregoing powers, and all other powers provided by the Constitution in the United States Government, or in any Department or Officer thereof” (Lawson et al., 2010). The meaning of the clause thus is that the constitution grants some enumerated powers to the government. It is the only clause that grants powers incidentally to the congress. The powers the government is allowed to exercise are justified for use in this clause.

The underlying motive for the “Necessary and Proper Clause” to be absorbed in the constitution is to provide the foundation that the congress can use to create laws that carry out the power provided to the Congress by the Constitution. It allows the government to do a number of essential things such as facilitation and organization of the judiciary. The clause was of great importance in the formation of the central government. It gave the congress authority to establish and organize it.

Consequences of the Ruling That Still Affect Us 

The consequences are still felt to this day. This is because it describes how the government can offer justification for the power it possesses under the constitution of the United States of America. For several years after the constitution was adopted, the interpretation of this clause caused contention between the political parties in the country at the time: the Republican Party, the Federalist Party, and the Democratic Party among other parties.

Differences in interpretation have led to some controversies and disagreement regarding the content of the clause over the past years. What is more, even the United Stated Supreme Court has in some occasions presented varying ideas regarding the interpretation of the clause. Perhaps one of the most historical uses of the clause in a ruling was in 1790 by the Chief Justice Marshal. He made reference to the clause while reading the majority decision on the creation of a national bank. Hamilton had burrowed the clause to support the creation of the first federal bank in the US. The bill was passed later passed by the congress. It was signed in to law by President George Washington (Levy, 2006).

In the ruling, Chief Justice John Marshall pointed out that the provision of the clause is meant to endure for ages in the constitution and will be adapted to various crises. Up to these days, the clause is still being applied to validate laws by both the congress and the President of the United States of America.

An Example of a Law Justified By This Clause 

The Necessary and Proper Clause has been used to provide a constitutional basis for several laws. It has sometimes been combined with the “Commerce Clause” to offer extensive use in the laws affecting economic activities in the country. The clause has also been used to validate some criminal laws (Reinstein, 2015). For instance, under the Federal Kidnapping Act, the congress applied this clause, and as a result, it became a federal offense to transport an abducted human being across a state border

The law gives authority to federal authorities to cross the borders in pursuance of a kidnapper upon crossing state boundaries with a victim. The laws were created on the precedence that normal law enforcement officers were not able to pursue kidnappers over borders. The congress vested this authority in federal law enforcers to make pursuance of kidnappers effective.

Congress and the president have furthermore used the justification of the Necessary and Proper Clause to exercise several other powers. For instance, the clause alongside the Commercial Clause had implications in the Affordable Health Care Act. In line with one of the aims of the constitution which are to promote General Welfare, the clause played a role in the adoption of the healthcare act under the Obama presidency. The act signed in 2010 contains sections in the reformation of the health industry and health insurance.


In conclusion, the clause has been utilized in various occasions to justify the practice of authority by both the president and the congress. It has been the cause of fear and other times hope in the lives of the United States of America’s citizens. Despite being to be used when absolutely necessary, the clause is still listed as a power of the Congress and not a limitation. Several disagreements are still experiencing this day on the interpretation of the clause.


Lawson, G., Miller, G. P., Natelson, R. G., & Seidman, G. I. (2010). The origins of the Necessary and Proper Clause. New York NY: Cambridge University Press.

Levy, R. E. (2006). The Power to Legislate (No. 17). Santa Barbara, California: Greenwood Publishing Group.

Reinstein, R. (2015). The Great Power of the Necessary and Proper Clause. SSRN . Retrieved from http://dx.doi.org/10.2139/ssrn.2644326

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StudyBounty. (2023, September 15). The "Necessary and Proper" Clause of the Constitution.


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