Like the Dude, McCulloch v. Maryland abides. Steve Calabresi, Elise Kostiel, and Gary Lawson have a new paper called "What McCulloch v. Maryland Got Wrong: The Original Meaning of 'Necessary' Is Not 'Useful,' 'Convenient,' or 'Rational.'" Anyone interested in McCulloch should read their article, but I want to keep the conversation going about whether "necessary and proper" is a hendiadys. That's a claim I advanced in "Necessary AND Proper" and "Cruel AND Unusual": Hendiadys in the Constitution. A hendiadys occurs when two words, separated by a conjunction, are used as a single unit of meaning (with each contributing something distinctive--not mere repetition).
In text, the authors suggest that my argument is opposed to Chief Justice Marshall's, because he treats each term as having "independent significance," while if the phrase is a hendiadys that would not be true. (I'm not sure Chief Justice Marshall actually argues that, but let's leave that aside for now.) The authors then drop this footnote:
An assessment of Professor Bray's argument is beyond the scope of this article. But because the argument, if correct, calls into question the lifetime project of one of us to ascertain the original meaning of "proper," see Lawson & Seidman, supra note 36, Lawson, supra note 9; Lawson & Granger, supra note 23, and because a number of modern Supreme Court decisions have attached distinct significance to the word "proper," see National Federation of Independent Business v. Sebelius, 567 U.S. 519, 559 (2012); Printz v. United States, 521 U.S. 898, 923-24 (1997); a few comments are appropriate. First, most of the many examples of hendiadys that Professor Bray provides, see Bray, supra note 139, at 696-706, are drawn from literature or colloquial speech. Legal documents in general and the Constitution in particular are neither of those things. See John O. McGinnis & Michael B. Rappaport, The Constitution and the Language of the Law, 59 WM. & MARY L. REV. 1321 (2018), Just as one would be more likely to look for metaphors in a poem than in a power of attorney (and probably more likely to look for technical words of art in the latter than in the former), perhaps it makes more sense to look for a hendiadys in a play or lunchtime conversation than in a formal legal document. Second, intratextually, the terms "necessary" and "proper" show up in other constitutional clauses, sometimes singly and sometimes in combination with other terms (e.g., "absolutely necessary"), which seems to cut in favor of assigning meaning to each. Third, and finally, even if Professor Bray is ultimately right, the hendiadys label only has bite if the unitary meaning of "necessary and proper" refers only to causal means-ends connection. That is surely not right. Once one identifies the Necessary and Proper Clause as an incidental powers clause, then the central question becomes which interpretative principles flow from that identification. If there was an established set of background rules for interpreting incidental powers clauses in agency instruments in the eighteenth century (and there was), and if the phrase "necessary and proper" was a commonly-used phrase in agency law at that time (and it was), and if all of the above would have been well known to the four agency lawyers and the agency-employing businessman on the Committee of Detail that drafted the clause (and it would have been), then it probably does not matter whether one parses "necessary" and "proper" in sequence to yield those interpretative principles or if one simply takes the phrase as a hendiadys that represents those principles. The principles are the principles. And if those principles went beyond a straightforward means-ends relationship and instead incorporate agency-law ideas such as a fiduciary duty of care, a duty of loyalty and a requirement not to exceed the scope of the granted agency (and they did), then little of consequence turns on whether one classifies the clause as a hendiadys or treats "necessary" and "proper" as distinct component parts of a set of fiduciary principles. In other words, perhaps we are dealing not so much with a hendiadys, in the literary sense of that term, as with a legal term of art.
