Fiduciary Principles and Statutory Form in Relation to the Necessary and Proper Clause: Potential Constitutional Implications for Congressional Short Titles

6(2) University of St. Thomas Journal of Law & Public Policy 347-372 (2012)

26 Pages Posted: 12 Oct 2013 Last revised: 21 May 2014

See all articles by Brian Christopher Jones

Brian Christopher Jones

University of Liverpool - School of Law & Social Justice

Date Written: 2012

Abstract

This article explores the principles of fiduciary duty and statutory form in relation to the “proper” portion of the Necessary and Proper Clause, and especially in regard to congressional short titles for bills and laws. While the clause is one of the most influential and controversial constitutional phrases, its meaning remains shrouded in mystery. At some level amongst the founders, the Constitution was regarded as a grant of fiduciary duty from the government to its people; given this, the clause should be read from such a perspective, and the duties of loyalty and good faith, among others, come into play when drafting and enacting legislation. Although the meaning of “proper” has historically been thought of from a propriety perspective, this article argues that all aspects of bills and laws should be “proper.” This would pose major problems for contemporary legislation, because many contain tendentious, promotional, and/or misleading short titles, many of which breach the duties of good faith, loyalty, due care, and impartiality. By analyzing the historical and contemporary definitions of “proper” and relying on state constitutions, case law, and legislative drafting manuals for the latter, this article determines that there is an abundance of room under the Necessary and Proper Clause to incorporate proper drafting form, stressing the concepts of accuracy, suitability, impartiality, and exactness. Additionally, in order to quell this irresponsible feature of legislative drafting, this article proposes a reasonable notice standard for congressional short titles, a quality which federal law currently lacks and which many contemporary bills and laws would undoubtedly fail.

Keywords: necessary, proper, drafting, bills, acts, short titles, Congress, fiduciary duty, fiduciary principles

Suggested Citation

Jones, Brian Christopher, Fiduciary Principles and Statutory Form in Relation to the Necessary and Proper Clause: Potential Constitutional Implications for Congressional Short Titles (2012). 6(2) University of St. Thomas Journal of Law & Public Policy 347-372 (2012), Available at SSRN: https://ssrn.com/abstract=2338867

Brian Christopher Jones (Contact Author)

University of Liverpool - School of Law & Social Justice ( email )

Brownlow Hill
Liverpool, L69 3BX
United Kingdom

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