Fascinating Article: The Corporate Law Background of the Necessary and Proper Clause

From SSRN, The Corporate Law Background of the Necessary and Proper Clause (H/T Legal Theory Blog):

This paper investigates the corporate law background of the Necessary and Proper Clause. It turns out that corporate charters of the colonial and early federal period bristled with similar clauses, often attached to grants of rulemaking power. Analysis of these corporate charters suggests that the Necessary and Proper Clause does not create independent lawmaking competence; does not confer general legislative power; does not grant Congress unilateral discretion to determine the scope of its authority; requires that there be a reasonably close connection between constitutionally recognized ends and the legislative means chosen to accomplish those ends; and requires that federal law may not, without adequate justification, discriminate against or otherwise disproportionately affect the interests of particular citizens vis-à-vis others.

I find it amazing that no one has discovered this linkage before. Fascinating piece of scholarship. How does this affect an origiginalist inquiry:

And, of course, inferences from the corporate law background of the Necessary and Proper Clause say little, if anything, about interpretations not based on original understanding. These caveats notwithstanding, an understanding of the corporate law background provides perspective and adds texture to our understanding of this important provision

 

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2 Responses to “Fascinating Article: The Corporate Law Background of the Necessary and Proper Clause”

  1. will Jones Says:

    Maybe the language merely reflects that the Const. was a political tool conceived primarily to facilitate corporations on a truly federal scale…

  2. troll_dc2 Says:

    If you are going to rely on original understanding, should you not look to see what Madison wrote about the NPC? Also, what do The Federalist Papers have to say about it?


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