One way apologists for the modern federal monster state attempt to justify it constitutionally is to argue that the Necessary and Proper Clause (Article I, Section 8, Clause 18) is an “elastic clause” conferring vast “implied” power on Congress.
Actually, as Constitution’s advocates during the ratification battles made clear, the Necessary and Proper Clause grants no power at all—it is a rule of interpretation only. This explanation by the Constitution’s advocates is amply supported by contemporaneous legal materials.
Nevertheless, the efforts to re-write the Necessary and Proper Clause continue. One gambit along these lines is based partly on the Post Office Clause (I-8-7), which states that “The Congress shall have Power . . . To establish Post Offices and post Roads.”
The gambit runs like this: To “establish” post offices means merely to set up the offices, hire employees, and the like. But “[w]ithout implied powers [i.e., from the Necessary and Proper Clause], Congress’s power ‘to establish post offices’ could not entail the ability to punish mail robbers and might not even entail the power to carry letters from one post office to another.”
A little research shows this argument to be wrong. In fact, the power to punish mail robbers and carry letters between post offices was authorized by the power to “establish.” The Necessary and Proper Clause had nothing to do with it. This is another example of why writers on the Constitution should research the meaning of critical words and phrases, not just assume what they mean.
In the eighteenth century, statutes “establishing” post offices did far more than erect buildings, set rates, and regulate employees. They included routes and rules of mail carriage, punishing those who tampered with the mail, and many other things necessary to postal operations.
Lay writers cannot be expected to access these statutes, but there is no excuse for academics’ failure to do so. For example, a collection of post office laws published in Mark Baskett’s 1767 A Collection of the Statutes Now in Force Relating to the Post Office is freely available in the popular Gale Company database, Eighteenth Century Collections Online, accessible in university libraries. You can read this volume for yourself by clickinghere.
EDITOR’S NOTE: Rob Natelson will be a guest on TRX: Tenther Radio on October 5th. If you have questions about the Necessary and Proper clause – or any other part of the constitution, let us know! You can call in your questions to our voice feedback line 24/7 – 213.785.7848 – or post them in our chat room here