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Restoring the Lost ConstitutionThe Presumption of Liberty$
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Randy E. Barnett

Print publication date: 2013

Print ISBN-13: 9780691159737

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691159737.001.0001

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Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause

Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause

(p.155) Chapter Seven Judicial Review of Federal Laws: The Meaning of the Necessary and Proper Clause
Restoring the Lost Constitution

Randy E. Barnett

Princeton University Press

This chapter examines whether the Necessary and Proper Clause of the Constitution precludes or invites the exercise of judicial review of a federal law to see if it lies within the powers of Congress to enact. Evaluating whether a federal law is constitutional must begin with whether Congress has acted within the powers it is granted in the Constitution. The chapter first provides an overview of the origins of the Necessary and Proper Clause before discussing the meaning of the term “proper.” It then examines the merits of applying the presumption of constitutionality to federal laws. In particular, it considers the original meaning of the constitutional provision giving Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Keywords:   judicial review, federal laws, Necessary and Proper Clause, Constitution, Congress, proper, presumption of constitutionality, original meaning

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