Originalism and the Necessary and Proper Clause

Abstract

This article analyzes a largely unacknowledged and, therefore, unsolved problem in constitutional theory and doctrine — the problem of multiplicity of meanings (i.e., encountering multiple conflicting meanings in practice when your doctrine or theory postulates just one). It does this by examining and comparing the debate over the meaning of the Necessary and Proper Clause in constitutional doctrine and the New Originalism’s notion of original public meaning in constitutional theory in order to help us get beyond the false and misleading assumptions underlying and motivating the myth of unitary meaning. It contrasts the role of the public and the express (as in original public meaning New Originalism) and the implicit and the unsaid (as in the case of incidental power in Necessary and Proper Clause doctrine) with the aim of better appreciating the role of each set of factors in doctrine and theory.

The theory and practice on offer here, which seeks to navigate, but not to eliminate, multiplicity of meaning, is dialogic originalism. Rather than churning multiple meanings in search of a winner, as is often the case in litigation, argument and theorizing, dialogic originalism puts conflicting meanings in conversation with each other in order to gauge the drift of the conversation and to discover what is at stake for all sides. This approach does not pick winners by a process of elimination, but instead seeks larger elements and concerns shared by all.