Law Commons^™

The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson

Faculty Law Review Articles

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 …

The General Welfare Clause And The Public Trust: An Essay In Original Understanding, Robert G. Natelson

Faculty Law Review Articles

This article examines the three traditional interpretations of the General Welfare Clause -- first, that it is a plenary grant of regulatory and spending power to Congress; second, that it is a plenary grant of spending power only; and third, that it is not a grant of power at all. The author finds severe textual problems with the first and second interpretations and his historical analysis confirms that those interpretations have little basis in original understanding. The third view, says the author, is the most textually sound.

Part II of the article addresses prior studies of the General Welfare Clause …