Geoffrey P. Miller · November 2010
79 GEO. WASH. L. REV. 1 (2010)
This Article investigates the corporate law background of the Necessary and Proper Clause. It turns out that corporate charters of the colonial and early Federal periods bristled with similar clauses, often attached to grants of rulemaking power. Analysis of these charters suggests the following: the Necessary and Proper Clause does not confer general legislative power; does not grant Congress unilateral discretion to determine the scope of its authority; requires that there be a reasonably close connection between constitutionally recognized ends and legislative means; and requires that federal law may not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-à-vis others. Although the historical evidence reported in this Article is by no means conclusive as to the meaning of the Necessary and Proper Clause today, it does provide valuable information about the meaning that lawyers of the Framing period would have attributed to the words of this important constitutional provision.
