The meaning of ‘necessary’; the meaning of ‘proper’

Excerpt from Vol. 3, The Kiss of Judice: The Constitution Betrayed: A Coroner’s Inquest

Coroner: So far, Mr. J. Story, Mr. Madison, and Mr. Hamilton are singing in the same key. However, Mr. J. Story soon began a surprise solo, imparting his own meaning to the word necessary, which he said meant “appropriate” or “suitable”—a serious departure from the text. What did you say, Mr. J. Story?

Mr. J. Story: [What I said by no means was a departure.] The plain import of the present clause is, that Congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution the other express powers, not merely such as are indispensably necessary in the strictest sense, (for then the word “proper” ought to have been omitted,) but such also as are appropriateto the end required. Indeed, it would otherwise be difficult to give any rational interpretation to the clause; for it can scarcely be affirmed, that one means only exists to carry into effect any of the given powers; and if more than one should exist, then neither could be adopted, because neither could be shown to be indispensably necessary. The clause, in its just sense, then, does not enlarge any other power, specifically granted; nor is it the grant of any new power. It is merely a declaration, to remove all uncertainty, that every power is to be so interpreted, as to include suitable means to carry it into execution.[1]

Coroner: The problem with the Justice’s “necessary”= “suitable” or “appropriate” equation is that “suitable” or “appropriate” both mean “proper[2], not “necessary”. So Mr. J. Story in effect redefined “necessary” as “proper”.That definition leads to an absurd result: the definition would amend the clause to have a doubleproper” and no “necessary”—i.e., to read, “Congress shall have power to make all laws which shall be necessary proper and proper for carrying into Execution . . . . That, of course, makes no sense. There are two qualifications on the lawmaking power, both of which need be present: necessary and proper.“Necessary” means “required” or “indispensable”;[3] and “proper”, as we said, means “suitable” or “appropriate.”

To bolster his argument that “necessary” meant “appropriate” or “suitable”, Mr. J. Story repaired to the post-enactment “practices of the government”, as a kind of communis error[4]bootstrap—an “it’s-been-done-before, so-it’s-legal” kind of argument that necessarily reads “necessary”out of the text.

[1] Story, Familiar Exposition §208 @

[2] Suitable: “Fit and appropriate for the end in view.” Black’s Law Dictionary 5th 1286. “That is fitted for, adapted or appropriate to a person’s character, condition, needs, etc., a purpose, object, occasion, or the like.” Oxford English Dictionary. Proper: “Suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right.” Oxford English Dictionary. “That which is fit, suitable, adapted, correct.” Black’s Law Dictionary 5th 1094. Appropriate: “Specially fitted or suitable, proper.” Oxford English Dictionary. [Undefined in Black’s Law Dictionary.]

[3] Necessary: “Indispensable, vital, essential; requisite.” Oxford English Dictionary. Black’s Law Dictionary 5th 928 gives the term “necessary” multiple meanings including (incorrectly) “appropriate, suitable, proper.”

[4] §1.001

Published in: on November 27, 2012 at 3:14 pm  Leave a Comment  

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