Comstock, Originalism and the Necessary and Proper Clause

Abstract

Constitutional law is plagued by meaning conflict at both the doctrinal and the theoretical levels. This article takes up two loci of such conflict and contest of constitutional meaning - the Necessary and Proper Clause (recently visited by the Supreme Court in the Comstock case) and the reasonable person device in the New Originalism - so that insight might be gained from the mutual comparison and illumination of their problems. In this process, dialogue replaces just “looking for one’s friends” in constitutional argument as various voices are considered and not silenced so that a favored one may be privileged. The result of this reciprocal examination is a paired argument for a fiduciary, agency law model of the Necessary and Proper Clause and also for a Dialogic Originalism as a replacement for the currently fashionable reasonable person New Originalism.