'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 President's Power to Execute the Laws
Our thesis is that either the text or the relevant "legislative" history, considered separately, demonstrates that the founding generation fully embraced and wrote into the Constitution the "myth" of a chief administrator constitutionally empowered to administer all federal laws. We think the originalist textual and historical arguments for the unitary Executive, taken together, firmly establish the theory.
French film theory and criticism : a history/anthology, 1907-1939
These two volumes examine a significant but previously neglected moment in French cultural history: the emergence of French film theory and criticism before the essays of Andr Bazin. Richard Abel has devised an organizational scheme of six nearly symmetrical periods that serve to "bite into" the discursive flow of early French writing on the cinema. Each of the periods is discussed in a separate and extensive historical introduction, with convincing explications of the various concepts current at the time. In each instance, Abel goes on to provide a complementary anthology of selected texts in translation. Amounting to a portable archive, these anthologies make available a rich selection of nearly one hundred and fifty important texts, most of them never before published in English.