The Necessary and Proper Clause is the provision of the Constitution that empowers Congress to make laws needed to carry its enumerated powers into execution. In the excerpts, it functions as the hinge on which the larger argument over limited government turns: whether Congress may exercise only the powers specifically listed, or may also reach lesser, implied powers that serve those listed ends. Guests across three episodes treat the clause as the mechanism by which the federal government’s authority has expanded beyond what its text specifies, and disagree about how far that expansion legitimately goes.
The clause and the fight over “expressly”
Carol Berkin, discussing her book on the Bill of Rights, locates the clause in the ratification-era contest over how to constrain the new federal government. She says the Anti-Federalists in Congress fought for a single word that would have changed the meaning of the amendment at issue: they wanted it to say that no power not expressly given to the federal government could be used. In her account, court decisions over time have instead affirmed implied powers and the necessary and proper clause, which is why the amendment’s intended limitation did not take hold. Carol Berkin on The Bill of Rights No One Wanted (2016)
Bob Zadek frames the underlying structure for listeners: the federal government received very limited enumerated powers and no others, and there was fear that slippery language in the Constitution would let Congress take those specific powers and, through the necessary and proper clause and other clauses, effect an expansion of them. Berkin agrees that the drafters wanted the ability to legislate on matters they had not thought about when writing the Constitution, and that this is why they wanted implied powers and the necessary and proper clause. She notes that the fight over the word “expressly” concerned the Tenth Amendment, which reserves to the states and the people the powers not delegated to the United States. Carol Berkin on The Bill of Rights No One Wanted (2016)
Berkin also describes Madison’s tactical use of a Bill of Rights. Madison, she says, told the first Congress that passing a Bill of Rights would let the Federalists take credit for it and separate the Anti-Federalist base from its leadership. Underneath the campaign promise and the sense of obligation to the states, she describes a wily politician who wanted above all to protect the power to tax and the power to regulate commerce. Zadek adds that Madison believed a Bill of Rights cost nothing because the federal government already lacked power to interfere with the freedoms protected. Carol Berkin on The Bill of Rights No One Wanted (2016)
The Anti-Federalist prediction
William Watkins Jr. treats the clause as one of several provisions whose future abuse the Anti-Federalists foresaw. Asked whether the Federalists or the Anti-Federalists better predicted the long-term effects of the Constitution, Watkins says that if you run a tally like a scoreboard — comparing the Federalists’ promises that certain clauses would confer no really new powers on the national government against the Anti-Federalists’ predictions of what those provisions would actually do — it is clear the Anti-Federalists were correct. [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]]
Watkins names the specific clauses the Anti-Federalists warned about: the General Welfare clause at the beginning of Congress’s enumerated powers, the Necessary and Proper clause at the end of those powers, and the Commerce clause, which he says has become a sort of universal jurisdiction for the national government over many matters. He adds that they predicted the treaty power could be used to undermine the rights of the people and the states, and says the pattern repeats again and again. In his telling, these were men dedicated to a republicanism stressing government at the local level, which he associates with Jefferson’s ward republics — a different vision of government than the one that prevails today. [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]]
Implied powers and the conscription question
Ilan Wurman, discussing a drafting exercise in which teams reorganized the Constitution, addresses the clause directly. He notes that the post office remains in Article I, Section 8 of the existing Constitution — and in Article I, Section 11 of his team’s version, because they reorganized the document and interpolated the Bill of Rights into the sections where he says they belong. Carrying the mail along post roads, he says, is permissible if the roads can be established pursuant to the Necessary and Proper Clause. The Conservative Constitution (2021)
Wurman’s substantive account of the clause is restrictive. He says that if you look at the original history, the clause is a grant of implied powers only: not only must the power be connected to some enumerated power, it can only be an implied power, meaning a lesser power rather than a great substantive independent prerogative that you would expect to be textually specified and enumerated had it been intended to be given. He illustrates with an analogy: if Zadek authorized him to come to an office and pick up a book, Zadek would have the implied power to move books around while searching, but not to get a battering ram and bash the door in, because the power to break down a door is such a great substantive independent thing that authorization would have been expected to be spelled out. The Conservative Constitution (2021)
Applying that test to conscription, Wurman says the argument for congressional power to conscript would have to rest on the Necessary and Proper Clause. Congress can explicitly raise and support armies and provide for a navy, but the Constitution does not say it can raise armies through conscription; if it can, it must be through the clause, which he quotes as empowering Congress to make all laws necessary and proper to effectuate the foregoing powers and any other power vested by the Constitution in the United States or any department or officer thereof. The question, he says, is whether the power to conscript is a great substantive independent power that would have been textually enumerated, or a sufficiently lesser power that it can be implied to effectuate the power to raise and support armies and navies. He declines to answer, calling it a hard question under the clause and suggesting it as a future exam. The Conservative Constitution (2021)
Wurman also distinguishes his team’s approach from the libertarian one. He says the libertarians mostly started with the existing Constitution and after every clause said, in effect, that they meant it and really meant it, as though the founders’ Constitution were a libertarian Constitution — which, he says, it is not. The founders’ Constitution protected liberty, he argues, but also sought to enable self-government for the common good; the national government was one of limited and enumerated power, but under the original Constitution the states could legislate over all avenues of life, including public welfare, health, safety and morals legislation. His team’s animating principle, he says, was balancing self-government and liberty, which he considers the founders’ principle as well. The Conservative Constitution (2021)
Across episodes: the same question, three treatments
The clause is argued in all three episodes, but the treatment shifts with the guest. Berkin, in the earliest episode, treats it as the reason the Anti-Federalists’ attempt to write “expressly” into the Tenth Amendment failed: courts affirmed implied powers and the clause instead. Watkins, the following year, treats the clause as one of the provisions the Anti-Federalists correctly predicted would be abused, and he names the General Welfare, Commerce and treaty powers alongside it. Wurman, in the latest episode, treats the clause as a grant of implied powers only and works out, without resolving, whether conscription can be implied from the power to raise armies. The excerpts show a movement from historical explanation of why the limitation failed, to a scoreboard of predictions vindicated, to a doctrinal test for what the clause will bear.
What the sources do not cover
The excerpts do not state which court decisions affirmed implied powers, nor which amendment the “expressly” fight concerned beyond Berkin’s reference to the Tenth Amendment. They do not give the text of the Necessary and Proper Clause as it appears in the Constitution, only Wurman’s paraphrase of its operative language. No excerpt states what any litigated case held about the clause, and none supplies the outcome of the conscription question Wurman poses. The Berkin excerpt breaks off mid-sentence on the Ninth Amendment, and the Watkins excerpt ends as Zadek begins a question about the Anti-Federalist Papers.