6 U. Pa. J. Const. L. 183 (2003-2004)
The Original Meaning of the Necessary and Proper Clause

handle is hein.journals/upjcl6 and id is 197 raw text is: ARTICLES

THE ORIGINAL MEANING
OF THE NECESSARY AND PROPER CLAUSE
Randy E. Barnett
Whatever meaning this clause may have, none can be admitted, that
would give an unlimited discretion to Congress.
-James Madison
INTRODUCTION
In two articles, The Original Meaning of the Commerce Clause and
New Evidence of the Original Meaning of the Commerce Clause,3 1 presented
evidence of the public meaning of Congress's power [t]o regulate
Commerce with foreign Nations, and among the several States, and
with the Indian Tribes.4 Commerce meant the trade or exchange
of goods (including the means of transporting them); among the
several States meant between persons of one state and another; and
the term [t] o regulate meant to make regular-to specify how an
activity may be transacted-when applied to domestic commerce, but
also included the power to make prohibitory regulations when ap-
plied to foreign trade.5 In sum, Congress has power to specify rules
to govern the manner by which people may exchange or trade goods
from one state to another, to remove obstructions to domestic trade
erected by states, and to both regulate and restrict the flow of goods
to and from other nations (and the Indian tribes) for the purpose of
promoting the domestic economy and foreign trade.
Austin B. Fletcher Professor, Boston University School of Law (rbarnett@bu.edu). My
thanks to Kate McFarland for her research assistance. Permission to photocopy for classroom
use is hereby granted.
1 ANNALS OF CONG. 1947 (Joseph Gales ed., 1791) (Ed. Note: The Annals of the 1st Con-
gress are particularly problematic in citing due to differing hard-to-find versions that often do
not clearly delineate volume numbers. All citations to 1 ANNALS OF CONG. herein are to the
Annals of the 1st Congress, 1789-1791, as edited by Joseph Gales and available on the Library of
Congress's Web site at http://memory.loc.gov/ammem/amlaw/lwaclink.hinl).
2 Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REv. 101
(2001) [hereinafter Barnett, Original Meaning].
Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 ARK. L.
REV. 847 (2003) [hereinafter Barnett, New Evidence].
4 U.S. CONST. art. I,  8, cl. 3.
5 Barnett, Original Meaning, supra note 2, at 101.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?