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Index
Cover
Half-title
Title
Copyright
Dedication
Contents
Acknowledgments
1 Raiders of the Lost Clause
2 Discretionary Grants in Eighteenth-Century English Legislation
I. Parliamentary Drafting, 1705–1743
II. Parliamentary Drafting, 1744–1769
III. Parliamentary Drafting, 1770–1787
IV. Parliamentary Drafting, 1788–1799
3 An Ocean Away
I
II
III
4 The Legal Origins of the Necessary and Proper Clause
I. Of Founders and Fiduciaries
A. The Duty to Follow Instructions and Remain Within Authority
B. The Duties of Loyalty and Good Faith
C. The Duty of Care
D. The Duty to Exercise Personal Discretion
E. The Duty to Account
F. The Duty of Impartiality
II. The Doctrine of Incidental Powers in the Eighteenth Century
A. Principal-and-Incident Law: In General
B. Principal-and-Incident Law in Conveyances
C. Distinguishing Incidental Authority from Discretionary Exercise Within Express Powers
III. “Necessary and Proper” Documents in the Eighteenth Century
A. Some History
B. How Clauses of the “Necessary and Proper”-Type Were Structured
1. Express-Power Discretion Clauses vs. Further-Powers Clauses
2. Formulae for Further-Powers Clauses
3. The Meaning of “Proper” and Its Effect on Formulas Three, Four and Five
C. The Baillie Cases: An Illustration of the Eighteenth-Century Incidental Powers Doctrine
5 The Framing and Adoption of the Necessary and Proper Clause
I. Drafting the Necessary and Proper Clause at the Constitutional Convention
A. Original Intent vs. Original Understanding vs. Original Meaning
B. The Legal Knowledge of the Framers
C. The Constitutional Convention’s Committee of Detail
D. “And Proper”
E. Approval by the Federal Convention
F. Some Observations from the Federal Convention Records
II. The Ratification and Beyond
A. The Antifederalist Attack
B. The Federalist Defense
1. Federalist Representations of the General Meaning of the Clause
2. The Federalist Representations as to the Meaning of “Proper”
3. Federalist Enumerations and Agreement to Amendments
4. Was the Necessary and Proper Clause Limited to Means Within Expressly Enumerated Powers?
III. Confirmation in the Debates over the First Bank of the United States
IV. Conclusion
6 Necessity, Propriety, and Reasonableness
I. The Origins of the Principle of Reasonableness
II. The Principle of Reasonableness in Constitutional Context
A. Executive and Judicial Power
B. Whither Congress?
C. Whither Reasonableness?
D. Necessary, Proper, and Reasonable
7 The Corporate Law Background of the Necessary and Proper Clause
I. The Constitution as a Corporate Charter
II. The Data
III. Implications for Interpretation
Index
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