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Full-Text Articles in Law
Tempering The Commerce Power, Robert G. Natelson
Tempering The Commerce Power, Robert G. Natelson
Faculty Law Review Articles
The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate. The Necessary and Proper Clause was intended to embody the common law doctrine of principals and incidents, and the Court should employ that doctrine as its interpretive benchmark. The common law doctrine contains less, although some, bias toward over-regulation, and it is flexible enough to adapt to changing social conditions. Adherence to the common law doctrine would markedly improve Commerce Power jurisprudence and reduce incentives for …
The Constitution And The Public Trust, Robert G. Natelson
The Constitution And The Public Trust, Robert G. Natelson
Faculty Law Review Articles
This article explores whether the recurrent references to the public trust were merely empty phrases or whether it really was a "general purpose" of the founders to impose fiduciary standards on the federal government. Part II lists some fiduciary duties potentially applicable to government. Part III summarizes the process by which the Constitution was drafted, debated, and ratified. Part IV examines works by some of the founder's favorite authors and who, the author finds, frequently advocated imposing fiduciary standards on government officials. Part V discusses the role of public trust concepts in the drafting, submission, and ratification of the Constitution. …
The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson
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 …