Putting the Necessary in Necessary and Proper by Gordon Ballingrud

McCulloch v. Maryland is criticized at times for its expansive interpretation of the word “necessary” in the necessary and proper (NP) clause. Marshall claims that necessary, essentially, is a synonym for convenient or useful, rejecting the Democratic-Republican arguments from such as Jefferson and Madison that necessary means essential, and that without which the government’s power would amount to nothing.

Marshall instead claims that the government has the power to use all of its powers to the fullest extent, and that unless there is some limit in the Constitution that the power asserted would contravene, the government should be allowed to use all powers which are necessary (useful or convenient) for the full use of their enumerated powers.

The NP clause is thus an extra grant of power on top of all of the other enumerated powers, giving the federal government (FG) all ancillary powers which might be needed to give the enumerated powers their full effect. Therefore, because the FG has the power to regulate interstate commerce, to coin money, to create and regulate interstate transportation and trade, as well as foreign trade, and because a bank would be a convenient device to allow the government to do all of the aforementioned forcefully and completely, it should be permitted.

This is, on one account, a strained reading of the word “necessary”, the term on which the outcome of this case hinges (in my opinion). However, my argument here is that we might be able to square this understanding of “necessary” with our common parlance, and thus make Marshall’s reasoning more accessible and acceptable.

To do so, consider the following scenario:

You and I are in a room, indoors. It is raining outside. You announce to me that you intend to go outside for a stroll. Concerned for your comfort and health, I say to you, “Don’t forget to take your umbrella; it is necessary for you to have it to go on a walk.”

Would you think that this was an odd use of the word necessary? I submit that you would not.

Of course, it is not strictly necessary, not essential, for you to have your umbrella in order to go on your walk. You may do so without it. But it will make your walk easier, and reduce the risks to your health due to being exposed to the elements. Not essential--yet this use of the word necessary is consistent with our ordinary understanding.

“Necessary”, though, can also mean strictly essential. Imagine the same scenario as above, but now imagine that you are a paraplegic. You announce your intention to go outside, and I (needlessly) remind you that you need to seat yourself in your wheelchair in order to do so. I say, “it is necessary for you to use your wheelchair to go outside.”

Unless you have a Dragon for your Uncle Jack, then necessary here means strictly essential. It will be impossible for you to go outside without the wheelchair. Both uses of the word necessary accord with our common understanding of the word.

So which understanding does the Constitution carry? Which reading should the judge choose? It is not enough to say that one understanding of a constitutional clause is permissible; it must be preferable to competitor interpretations by some metric or other.

I think Dworkin is helpful here. Dworkin argues that our interpretive methods should answer the question, which reading of a hard case or question has the answer which best comports with the principles of the legal system as a whole, shown in its best light? Which answer applies principles which best justify the use of state force?

I won’t speak directly to the question of whether the bank itself was just or unjust, but to the general question of which reading of necessary allows for more just outcomes; which better comports with the American conceptions of justice and the legal system as a whole.

This question would have been difficult to answer in the early 19th century, and perhaps today as well. The American system of law was so young then that it may have fairly been an open question as to which principles undergirded the legal system at all, never mind what was the best reading of them. Still, this question is still somewhat opaque to this day.

I think that Marshall’s reading was the right one. The general point is that the American system of law is characterized by a vertical division of powers, but also by robust federal supremacy. The best reading that we can give the American legal system, as I understand it, is that we have a powerful central government whose ability to rectify social ills should not be constrained by the interests of non-moral entities like states. The restrictions on the federal power should mainly (I won’t go so far as to say exclusively) be characterized as external limits imposed by individual rights, because individuals are morally relevant entities whose autonomy and interests are not only relevant but crucial for legitimate government. The states, on the other hand, are purely creatures of law, and lack agency of their own as well as inherent moral value.

This reading allows for federal power which can solve myriad social problems and promote justice across the country. It also makes the FG limited by, and primarily accountable to, individual citizens rather than legal abstractions like states. This is, I believe, the more justifiable position than one in which the states are taken to be bearers of rights in themselves, and to have relevant moral interests and claims to autonomy apart from those of its constituent citizens. That would be, I think, a difficult position to defend--although I think that the Court has adopted something very like this puzzling position in certain federalism cases, like Shelby County v. Holder.

The bottom line is that it is a better reading of American law to give to the central government the power to act expansively and energetically, primarily constrained by individual rights rather than imagined moral non-entities like states. This reading comports well with much of our history, which has tended to downplay the privileges of states (over time) and prioritize the autonomy of the individual. This is not to say that the FG will always behave in ways that advance justice or protect individual autonomy, but a reading of our legal system which allows it the power to do those things is better on grounds of individual autonomy and justice than one which does not allow such powers. The question of whether policy is wise or good is separate from the one I ask here.

So I hope to have shown that Marshall’s reading of “necessary” is both a) a permissible construction of the word which agrees with our common understandings, and b) is not only permissible but preferable to its competitor from Madison and Jefferson.

Freedom and the UBI by Gordon Ballingrud

This is the inaugural post for my blog.

I don’t know whom exactly I’m writing this for, since I am fairly certain that no one will visit this page or read these posts—so maybe I am doing this just for myself. Here I plan to sketch out some ideas in preliminary form on my study of politics.

I don’t plan to comment on current events, exactly, nor do I plan to print my paper manuscripts before peer review. Something in between. I plan for this to be sort of a free-form commentary on various issues, and to serve as a way for me to explore thoughts both too inchoate and too narrow in scope to become full paper manuscripts, but more carefully thought out than just a series of hot takes.

So many this is my way to get my own thinking in order on a range of issues from my reactions to material I read for research or for class, and maybe occasionally a thought or two on current events, and how they pertain to my areas of interest.

To that end, and to set the tone for this blog, I will recreate an op-ed that Brad and I wrote but which was never published. It’s on the universal basic income (UBI) as a freedom-enhancing measure which the ostensibly freedom-loving American right rejects even in its less ambitious iterations (like various welfare systems), much to their own ideological inconsistency, and speaking to the poverty of their conceptions of liberty.

So here it is:

The UBI: Freedom in the 21st Century

Gordon Ballingrud & Bradley Hunsinger


            Americans love to talk about freedom.  Our politicians promise to defend it, and cloak themselves in its legitimizing garb.  Most everyone claims to support freedom, but one policy, which would substantially enhance the freedom of most Americans, has recently seen partisan groups draw their familiar entrenched battle lines.  If we are committed to American liberty, then we should take this policy much more seriously: the universal basic income (UBI).

We hope to convince you all that a UBI is both a method to dramatically enhance freedom. Whatever the UBI’s economic merits or demerits are, if the UBI protects basic liberties, it is required by justice.

Money is a prerequisite for freedom.  But we must give such a protean term as freedom term definition.  We will focus on two familiar and intuitively appealing dimensions.  The first is the absence of restraint.  The second is the absence of domination. 

The economic arrangements under which goods are produced, collected, and distributed prevent access by many people, those who have limited funds. This is not to say that any person has a right to something that he cannot afford.  I may have no right to board a train if I have not paid for a ticket, but nonetheless, I lack the freedom to do it.  The concept of freedom is distinct from the concept of rights.  The wider the area of non-interference, the wider is my freedom.  And money lifts barriers that would otherwise interfere.

Money ensures that a person who would otherwise interfere with your behavior will not do so: a store clerk who would stop you from leaving will permit you to leave, if you lay down the requisite funds for the items.  A person without money is less free than the same person with plenty of money.  Basic liberties, those necessary for developing a conception of the good life and pursuing it, are especially affected.  If we take freedom seriously as a political value, then we should be taking the UBI seriously as a national policy.

Consider an unskilled worker.  This person works for minimum wage (perhaps at more than one such job), and has no savings.  Millions of Americans fit this category.  This worker’s employer(s) demand something like following employer guidelines for conduct outside of work.  The prospect of being left with no money on which to subsist means that the worker has no realistic power to deny this order without another lined up beforehand, which would still leave the worker at the mercy of similar demands from the next employer.  This hypothetical laborer is dominated: he or she has no power to resist the demands of the employer because the fearsome prospect of having no job leaves subsistence in question.  This person is subject to an arbitrary power, one which he or she has little power to resist.  Recourse to labor laws may provide some relief, but depends on access to legal counsel, and varies with the willingness of government to support the demands of labor.

The UBI gives the worker has the option to leave a job that imposes unreasonable or invasive demands.  Having an income guaranteed by law affords this worker power to leave a job if he finds the demands unreasonable.  This is power granted by the removal of the coercive prospect of homelessness and destitution.  All the more dramatic for the unemployed and homeless, a guaranteed minimum not only lifts barriers to access for essential resources, but also affords a dignified option in lieu of distasteful means to survival: prostitution, drugs, panhandling, etc.

A free society removes the requirement to work tirelessly just to survive.  Concluding this does not require any special portion of compassion or sympathy on our parts.  It requires that we give to all (especially the vulnerable) the same freedoms we would want for ourselves if we didn’t know our talents or social positions: freedom from the demands of mere survival so that we might choose and pursue a fulfilling life. 

We care to be seen as freedom-loving, and praise our system endlessly for this general commitment. But this is worth little unless it is matched by particular commitments. The arbitrary threat of destitution held over one's head by a private employer is just as much a blow against liberty as a similar threat by the state. We would do well to compel our elected officials redress such threats.