'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution
Constitutional doctrine is often shaped by the details of the constitutional text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.” Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship. That assumption is incorrect.This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, work together as a single complex expression. It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale,” “open and notorious.” When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual. Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty. If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action. The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, while “proper” instructs us not to interpret “necessary” in its strictest sense. “Proper” also reminds us that the incidental power Congress is exercising must belong to an enumerated power.To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland. The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.
The Corporate Law Background of the Necessary and Proper Clause
This paper investigates the corporate law background of the Necessary and Proper Clause. It turns out that corporate charters of the colonial and early federal period bristled with similar clauses, often attached to grants of rulemaking power. Analysis of these corporate charters suggests that the Necessary and Proper Clause does not create independent lawmaking competence; 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 the legislative means chosen to accomplish those ends; and requires that federal law may not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-a-vis others.
The Bill of Rights : creation and reconstruction
A leading scholar of constitutional law delivers an incisive and brilliant new account of the Bill of Rights and explodes conventional wisdom about our most basic charter of liberty. Akhil Reed Amar not only illuminates the text, structure, and history of the 1789 Bill but also argues that its present character owes more to antislavery activists of the Reconstruction era than to the Founding Fathers who created the Bill.