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Case W. Res. L. Rev.


In this article the author suggests that the meaning of the Necessary and Proper Clause has seemed unclear to modern commentators because they have not been looking in the right place. In Part II the author subjects the Necessary and Proper Clause to textual analysis, incorporating in that analysis the eighteenth century definitions of words and shows why textual analysis alone cannot clarify some uncertainties. Part III examines the drafting history of the Clause at the federal constitutional convention, concluding that the primary drafters intended it to incorporate concepts from contemporary agency law, specifically the doctrine of implied incidental agency powers and the limitations of fiduciary duty.

Part IV surveys the development and content of the agency concepts that the drafters intended the Necessary and Proper Clause to embody. Part V examines proceedings in the federal convention after the Clause was drafted. Part VI surveys the ratification process in detail. Part VII shows how the 1791 debates over the first national bank, as contentious as they were on application of the Clause, still reflected a consensus as to its essential meaning and focuses on the disputants' fundamental agreement on matters of principle. Part VIII suggests some interpretative implications arising from this study.