If you happen to have libertarian tendencies, as I do, you’ve looked at this “necessary and proper” power of congress in Article 1, Section 8 of the US Constitution quite often.
When the constitution was ratified, a group called anti-federalists claimed that congress would run wild with this one clause. Turns out they have, but with the approval of Supreme Court rulings.
As the clause says, congress shall have power to “make all laws which shall be necessary and proper for carrying into execution all the foregoing powers, and all other powers vested by this constitution in the government of he United States, or in any department or officer thereof”
The most famous early test of those “N & P” powers came in a Supreme Court case called “McCulloch vs Maryland”.
It actually revolved around two issues.
1. Can the federal government form corporations?
2. Can states tax a federal bank which operates from within that state?
Pulitzer Prize winner Jack N. Rakove writes in his book “Original Meanings“, that “Franklin, Wilson, and Madison attempted to give congress authority to build canals and to grant charters of incorporation when the national interest warranted, but this effort failed…”
To understand why it failed, we may look at the constitution as it was finally ratified, and those amendments we know as the Bill of Rights.
Where did corporations come from, in law, as the colonies understood it? Since they were students of Blackstone, they realized that a corporation was an entity created by authority of the king of England as a “legal person” for whatever function the king deemed necessary.
The reason why this power was reserved exclusively to the king, as Blackstone pointed out, is that corporations were products of Roman civil law, and common law rejected Roman civil law as an authority over common law. As both Blackstone and Edward Coke, England’s Chief Justice explained it, a corporation became par of common law only by “baptism” or “christening” of he king as a legal person. As such the corporation was subject to the king and King’s Court.
Since the ratification of the constitution, and the Revolutionary War recently fought had rejected the authority of the king of England, it is easy to recognize that he delegates would not be eager to give kingly powers to the federal government for any reason.
In fact, there was a great uproar among the anti-federalist regarding civil law, since powers given to federal courts under civil law did not include trial by jury, a staple of common law.
One who wrote as “A Democratic Federalist” said “It is a word of foreign growth and is only known in England and America in those courts which are governed by the civil or ecclesiastical law of the Romans.”
The fear of the early colonists was that the federal courts, under Article 3 jurisdiction, would take the judiciary power and place all civil suits under the civil law as developed in Europe, and consistent with Roman law, or “corpus juris civilis“, whose authority was not recognized by common law.
Had this been permitted, two national sovereign powers would have been given to congress and the courts:
1.Sovereign power to form corporations, considered a “kingly” power
2.To create civil law in recognition of that corporate power.
In protection against such power, the 7th amendment was added:
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law”
What must be understood from this is that, as historian St George Tucker pointed out, and also established by Chief Justice John Marshall in “United States vs Aaron Burr“, neither the courts nor congress had general jurisdiction over common law.
Since all suits were at common law, and since no fact tried by jury could be re-examined by any US court except by common law, then all federal courts were subject to the rulings of the jury under common law, which eliminated any civil law or corpus juris civilis power.
But who did have jurisdiction over common law? Quite simply, and plainly written in the constitution; the states. How do we know?
1.Under 5th amendment provisions, no person shall be deprived of life, liberty, or property, but by due process of law.
So what is “due process of law”? The colonists had two authors they recognized in law. One was William Blackstone, whose “Commentaries” shaped legal thoughts among the states, and English Chief Justice Edward Coke, who wrote “Institutes of the Laws of England“.
It was Coke who had given the definition of due process as common law. Therefore, what we see in the 5th amendment, and as understood by the founders, is that no person shall be deprived of life, liberty, or property, but by common law.
As Roger Sherman proposed in ratification, and approved by the House, the first ten amendments, known as the Bill of Rights, pertained to the states, and were kept separate from the body of the US Constitution itself. These, said Sherman, would be a bill dealing with the states, while the Constitution referred to the body of the people.
It was understood by the colonists, therefore, that every person within any state was protected from intrusion of the federal government by “due process”, or common law.
Further proof? How about the “Commentaries” of US Justice Joseph Story? Due process of law, wrote Story, in quoting from Edward Coke, said “by the law of the land, mean by due process of law, that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law.”
The power of congress, and of the courts, as we see, was prohibited from exercising general jurisdiction over common law. Could the federal government create a corporation as a “legal person”? No, since that had been reserved to the king only under common law, and since the courts themselves had to respect common law, and since common law was restricted to the jurisdiction of the states, only the states had authority to create corporations.
That, in fact, is just what Tench Coxe told the people at ratification of the constitution. Notice this distinction:
“The several states can create corporations civil and religious..”
Who was not permitted to make such laws? Congress, under the First Amendment!
It was the common law which gave the king of England power to create corporations of a civil or religious nature. It was that same jurisdiction over common law that gave ONLY the states jurisdiction to create corporations, whether civil or religious in nature! Congress could make no law recognizing an establishment of religion, because it had no jurisdiction over common law!
The states, however, having jurisdiction over common law, had every common law right to create religious corporations! This was not taken away by the 14th Amendment! It merely gave every person right to “free exercise” of religion by due process protection!
By restricting all due process to , the states, therefore, gave the states sovereignty that the federal government or the courts could not possess!
All protections of life, liberty, or property, was reserved to the states by due process, which means that any state can declare, in spite of Supreme Court rulings, the power to create religious corporations!
How do we know it was reserved to the states? How about James Madison’s statement in “Federalist 45”:
“The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…”
We can simply overlap this onto the 5th amendment, which tells us that no person shall be deprived of life, liberty, or property, but by due process of law.
As Tench Coxe pointed, and as understood by the founders, the states retained jurisdiction over common law by due process, and by that same law, they retained power to create both religious and civil corporations!
Could this power be overcome by any “necessary and proper” power of congress? No since the N & P clause sat directly under what is called the “enclave clause” of the Constitution:
“To exercise exclusive legislation…over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.”
Unless the federal government owned the property, by consent and purchase from the states, it had no exclusive legislation over the states.
Under the 1st Amendment, however, it had no power of legislation at all! This can ONLY mean that the power of religious incorporation remained with the states by due process of law!
Under the 14th Amendment, this protection is given to individuals from the state itself, which makes due process of law a complete right of individual conscience!
We are left here with a fundamental conclusion: Only the states have jurisdiction over corporations, whether civil or religious in nature, and congress cannot say otherwise.
Since neither congress nor the courts have general jurisdiction over common law(see Brandeis, Erie vs Tomkins), the states retain sovereign power of regulation over all corporations.