Now published, in the current issue of the Virginia Law Review: Samuel Bray (UCLA), “Necessary and Proper” and “Cruel and Unusual”: Hendiadys in the Constitution (102 Va. L. Rev. 687 (2016)). Here is the introduction (footnotes omitted):
For more than two centuries, no clause of the U.S. Constitution has been more central to debates over federal power than the Necessary and Proper Clause. For an interpreter today, it is inevitable to wonder if everything worth saying has already been said. Yet the Clause remains at the heart of major debates in this country, including the recent landmark case of National Federation of Independent Business v. Sebelius. In that case the Court eventually got around to upholding the Affordable Care Act under the taxing power, but only after holding that the individual mandate could not be justified under the Necessary and Proper Clause. The individual mandate, the Chief Justice wrote, might be ""necessary' to the Act's insurance reforms," but it was "not a "proper' means for making those reforms effective." Necessary, but not proper. Whether the conclusion was right or not, it was exactly the kind of close reading that one would expect a court to give to the Clause, since it authorizes only congressional actions that are "necessary and proper." Or does it?
This Article attempts to shed new light on the original meaning of the Necessary and Proper Clause, and also on another Clause of the U.S. Constitution, the Cruel and Unusual Punishments Clause. The phrases "necessary and proper" and "cruel and unusual" can be read as instances of an old but now largely forgotten figure of speech. That figure is hendiadys, in which two terms separated by a conjunction work together as a single complex expression. The two terms in a hendiadys are not synonymous, and when put together their meanings are melded. (Hendiadys is pronounced hen-DIE-u-dus.)
(Draft previously noted on this blog here.)
Posted at 6:57 AM