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What Mcculloch V. Maryland Got Wrong: The Original Meaning Of 'Necessary' Is Not 'Useful', 'Convenient', Or 'Rational', Steven Calabresi, Gary S. Lawson, Elise Kostial

Faculty Scholarship

McCulloch v. Maryland, echoing Alexander Hamilton nearly thirty years earlier, claimed of the word “necessary” in the Necessary and Proper Clause: “If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports that one thing is convenient, or useful . . . to another.” Modern case law has translated that understanding into a rational-basis test that treats the issue of necessity as all but nonjusticiable; The Supreme Court has never found a congressional law unconstitutional on the ground that it was not “necessary . . . …