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

Jones, Brian Christopher (2012) Fiduciary Principles and Statutory Form in Relation to the Necessary and Proper Clause: Potential Constitutional Implications for Congressional Short Titles. St. Thomas Journal of Law & Public Policy, 6 (2). pp. 347-372.

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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.

Item Type: Article
Faculty / Department: Faculty of Arts & Humanities > Law
Depositing User: Brian Christopher Jones
Date Deposited: 02 Oct 2016 16:08
Last Modified: 02 Oct 2016 16:08
URI: http://hira.hope.ac.uk/id/eprint/469

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