Balkinization  

Friday, August 12, 2011

Resolution VI as a Principle of Construction

JB

Over at the Volokh Conspiracy Kurt Lash (here, here, here and here); and Neil Siegel (here, here, here, and here), have been discussing the constitutional theory of enumerated powers, and, in particular Lash's new article on SSRN challenging my views about the commerce clause.

Lash sent me a draft of his article as a courtesy, and I have already given him extensive comments on it. My basic conclusion is that Lash's article doesn't offer much that is new that affects the current debate about federal power or the constitutionality of the individual mandate. Moreover, a few of his historical claims are dubious, as I'll explain below.

Although he singles me out as a central example of the position he criticizes, Lash's paper does not really engage very well with my arguments about enumerated powers. That is partly because he does not always portray my positions on these issues accurately and partly because he assumes a very different theory of constitutional interpretation and construction than mine. As a result much of his paper tends to talk past what I have written.

In this blog post I'll explain my own views, and I'll also suggest places where I think Lash draws the wrong inferences from the historical record. In addition, I'll try to highlight the differences between my theory of constitutional interpretation and the assumptions that Lash employs in his essay. Those differences in theoretical commitments and assumptions affect the ways that each of evaluates historical evidence. (You can read Lash's reply to my arguments here.).

Introduction: What principle best explains Congress's enumerated powers and why is it important to constitutional construction?

In my 2010 article on the Commerce Clause in Michigan Law Review, and in my forthcoming book, Living Originalism, I argue that a basic structural principle explains why the Philadelphia Convention created the list of enumerated powers in Article I, section 8. I also argue that this structural principle is valid to this day, and that it should inform the construction of doctrines that implement the enumerated congressional powers.

What is this basic structural principle? Issues that raise federal (as opposed to national) problems are within federal power, and issues that do not raise federal problems do not fall within federal power.

A national problem is a problem that may appear in many different parts of the country but that states might be able to solve on their own. A federal problem, by contrast, is one that requires a federal solution.

Federal problems are problems where activities within one state create interstate spillover effects, where collective action problems among states create obstacles to regulatory solutions, or where conflicting legislation by states might interfere with national interests. (Neil Siegel discusses these ideas in his series of posts linked to above).

This principle does not displace the list of enumerated powers; it merely offers a background structural principle for creating doctrinal constructions that apply the various enumerated powers in concrete cases. I do not claim--as Lash incorrectly asserts in one of his posts--that the list of enumerated powers means Resolution VI or is somehow synonymous with Resolution VI. I claim only that in construing the scope of Congress's powers, we should employ this structural principle in crafting legal rules and legal doctrines. Moreover, in the specific case of the commerce clause, I believe that this principle helps us to decide what commerce is "among the several states."

In McCulloch v. Maryland, Chief Justice Marshall says:
We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
One way--but not the only way-- to decide whether means are "appropriate" and "plainly adapted" to furthering the ends of Congress's enumerated powers is to ask whether the means Congress has chosen reasonably further the principle that justifies the choice of Congress's enumerated powers. That is what I mean when I say that this principle is a rule of construction. It helps us create constructions consistent with the text that further its underlying purposes.

This basic idea--that federal power is granted to solve federal problems--was the point of Resolution VI of the Virginia Plan. The Virginia Plan included a series of resolutions offered by the Virginia Delegation (and primarily drafted by James Madison) outlining the basic elements of the new Constitution. Resolution VI was adopted by the convention and sent to the Committee of Detail, which then converted it into the list of enumerated powers that we know today as Article I, section 8.

Resolution VI provided (I divide it into three parts for convenience):

[1] "That the national Legislature ought to possess the legislative rights
vested in Congress by the confederation;"
[2] "and moreover to legislate in all cases for the general interests of the Union;"
[3] "and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the
exercise of individual legislation." [2 Farrand at 14, 16-17]

You can see that Resolution VI, although it does not speak the modern language of economics, is also concerned with interstate spillovers and potential collective action problems.

My argument is that Resolution VI was the principle that justified creating the list of enumerated powers at the Philadelphia Convention, and that this principle is still a valid structural principle to use today when we develop constructions of Congress's enumerated powers.

In his SSRN paper, Kurt Lash has argued that my views about Resolution VI rest on "a historical mistake." He asserts that the historical evidence is clear. In the next sections of this blog post, I explain (1) why his historical arguments are anything but clear, and indeed, on occasion, somewhat suspect; and (2) why many of his claims are beside the point, because they are based on views about constitutional interpretation that I do not hold.

I. The Nature of Structural Arguments

The most important point to recognize at the outset about my argument about Resolution VI is that it is not an argument from original intentions or original understandings.

Nor is it an argument about the original meaning of the words of the constitutional text. That is because it is not a claim about original semantic meaning, reasonable implications to be drawn from original semantic meaning, or widely acknowledged terms of art.

Rather, it is a structural argument.

When we interpret the Constitution, we constantly make reference to structural principles, such as the separation of powers, or the principle of checks and balances, or democratic self-government, or the rule of law. These structural principles do not appear in the text and they are not part of original meaning. They are constitutional constructions. They explain how the Constitution works in practice and how it should work.

Thus, structural arguments, even when they use history, are designed to explain how the constitutional plan should work today.

When we make structural arguments, we often look to historical materials, because we want to know how the framers and adopters thought the plan would work.

But we look to original intention and original understandings not because these are binding on us in the way that original intention originalists usually imagine, but because they are evidence of how the plan of government is supposed to operate in practice.

Even so, the framers and ratifiers could have gotten some things wrong, or what they thought or believed about government operations might no longer be relevant. Their views are their original expected applications about the Constitution in practice, and, like other original expected applications, we do not have to accept all of them. They are resources for construction, but not commands.

For example, the structural principle that federal powers should be strictly construed was offered by several different people during the ratification debates (and for years afterward)-- but it makes no sense today. Therefore we do not have to follow it. However, if we were original intention originalists (or original understanding originalists), we might be bound by such arguments today if we thought they represented the dominant views of the framers or the ratifiers.

Because structural arguments are not arguments whose authority rests on original public understanding, there is no problem with looking to the secret deliberations of the framers in Philadelphia, as well as public statements or letters by framers outside of the ratification debates. Our goal in making these arguments is to figure out how the Constitution should work, and evidence of how the people who drafted it thought it would work may be particularly helpful for this purpose.

For the same reason, in making structural arguments, it's perfectly permissible to look at the work of the first several Congresses, even though all of this material occurred after ratification. Indeed, there's no reason not to look at materials created many years after ratification, after new amendments and new constructions have been added.

All of this evidence is helpful but it is not conclusive. The assumptions of people at the time of the founding about how the constitutional plan would operate might prove wildly off the mark-- first, because they had never seen a federal republic in operation before; and second, because they could not predict how the country and its circumstances might change.

For example, I don't believe that structural arguments about Presidential power in the modern National Security State should be controlled either by original intentions or original understandings. I do not even believe that the practice of the Washington Administration is conclusive. Nor do I believe that the constitutional powers of the Presidency can be determined by coaxing hidden meanings out of the words "Executive Power" or "Commander-in-Chief."

The President faces security threats unimagined at the time of the founding, and because of these threats, we have standing armies around the world, and the President controls atomic weapons and unmanned drones that we can dispatch virtually anywhere at a moment's notice. How we think about constitutional structure today has to change in light of these changes in technology, demographics, intelligence technology, and military strategy.

Many of the framers' assumptions about how the Constitution would work have turned out to be outmoded or incorrect--the most famous example being their aversion to political parties. Nevertheless, I believe that their basic purposes for creating a list of enumerated powers are still valid today.

The best account of why Congress has the powers listed in Article I, section 8 is still Resolution VI, and it happens to be the formula that was used to create the Article I, section 8 powers in the first place.

I believe that we should use this principle today in creating constructions consistent with the text. I do not believe that the principle displaces the text; I believe it explains the text, and shows us how to apply it.

In my article on the commerce clause, I point out that not only did the framers employ the principle of Resolution VI in their internal deliberations to create the list of enumerated powers, but that James Wilson, who was a key player on the Committee of Detail, and who helped draft the list of enumerated powers, offered this principle at the Pennsylvania Ratifying Convention in November of 1787 to explain why Congress was given its enumerated powers.

In fact, the principle that Wilson offered at the ratifying convention is even a little broader and more nationalist than Resolution VI, as I shall explain presently. Wilson's view was by no means the view of everyone who participated in the ratifying debates-- he was, after all, a strong nationalist. But, once again, I am not making an argument from original understanding or about what the ratifiers expected. I'm asking how the people who drafted the Constitution's text thought the Constitution would work, and I am arguing that this principle of "federal powers for federal problems" still makes sense of the Constitution today.

Now in an interconnected economy and society like the present, many more things will present a federal problem than did in 1787, and so reasonable constructions of the scope of Congress's enumerated powers (using the rule of McCulloch) will expand accordingly. Hence, I argue, the modern state is largely consistent with the grant of enumerated powers, and broad federal regulatory power does not contradict the text, even if it is not what the framers' or ratifiers expected. Indeed, there may be only a relatively small number of situations, like that in the Lopez case, where Congress's powers do not extend. There are still limiting cases where Congress lacks power, to be sure, but most of the modern regulatory state falls within these limits. I think this conclusion is what really disturbs Lash, and that is why he objects to using Resolution VI as a principle for constitutional construction.

II. Did the Philadelphia Convention Reject Resolution VI?

This brings us to Lash's paper. He makes three basic arguments:

First, Lash claims that the Convention actually rejected Resolution VI. (This is an argument about original intentions.)

Second, Lash argues that James Wilson never offered the principle of Resolution VI at the Pennsylvania Ratifying Convention; he offered a very different principle, which was offered in the convention by Roger Sherman and had been voted down by the delegates. (This is an argument about Wilson's intentions and his public representations to the ratifiers; it is also an argument about the original understanding produced by public representations, which Lash believes--incorrectly in my view--glosses original public meaning.).

Third, Lash points out that there are two published versions of Wilson's speech, and the earlier one, first published in November 1787, and printed in various newspapers, has slightly different language from the second. The version I quoted in my article on the commerce clause was not published until February of 1788. Therefore, Lash contends, nothing Wilson said in the February version should count if we want to interpret the Constitution consistent with its original meaning. (This is also an argument from original understanding, which, once again, Lash believes glosses original public meaning).

Let's take up these arguments one by one.

Lash acknowledges that the convention voted for Resolution VI several times during the convention. He also acknowledges that Roger Sherman's formulation was rejected by the convention, and that Gunning Bedford's final version of Resolution VI was accepted. He further acknowledges that Resolution VI, like the others approved by the convention, was then handed over to the Committee of Detail with instructions to turn them into a working draft. Yet he argues that the convention rejected the principle of Resolution VI. Why does he think this?

Lash argues that Resolution VI was a "placeholder" for a future list of enumerated powers.

Stated in this way, I agree with Lash. Resolution VI was a general statement of principles that was unlikely to be the final language.

Here is how we know that it was a placeholder. The language of Resolution VI is divided into three parts. The first part says:

[1] "That the national Legislature ought to possess the legislative rights
vested in Congress by the confederation;"

It is very unlikely that this language was going to make it into the final Constitutional text. It looks like a formula whose actual language was going to be spelled out later. This is also true of the language of the other resolutions approved by the Philadelphia Convention. Therefore we should expect that Resolution VI would be treated in much the same way.

Moreover, there are other signs that the delegates did not think that Resolution VI would not appear word for word in the final text of the Constitution. When Pierce Butler of South Carolina complained that the test of state "incompetence" was far too general, Nathaniel Gorham of Massachusetts responded that "[t]he vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended hereafter into details which will be precise & explicit." [2 Farrand at 17]. In addition John Rutledge had moved for the enumeration of powers, and although this motion failed by an equally divided vote, Rutledge was later put on the Committee of Detail, along with his friend James Wilson, and the two of them produced a list of enumerated powers.

So on this particular question, there's no disagreement between Lash and me.

But Lash means something more than I do when he calls Resolution VI a "placeholder." He is saying that Resolution VI wasn't really a principle at all, or, if it was, that it did not inform or justify the choice of powers granted to Congress. It was a just a piece of text with no important justificatory or normative significance for constitutional drafting.

That is where we disagree.

Lash relies on Jack Rakove's book, Original Meanings: Politics and Ideas in the Making of the Constitution, to establish this claim. Rakove argues that Resolution VI was a placeholder awaiting the resolution of the issue of representation in Congress. The final language might turn out to be a broad statement of general power or it might be a list of enumerated powers depending on how the issue of representation was resolved [Jack Rakove, Original Meanings, at 176-78]. After the Great Compromise that secured equal representation in the Senate, Rakove argues, the convention coalesced on the latter strategy, and turned Resolution VI into a list of enumerated powers.

Rakove understands the term "placeholder" very differently than Lash does. For Rakove it is a substantive principle that would inform the final language. His view is pretty much the same as mine.

Thus, Rakove notes that when the Committee of Detail returned with a list of enumerated powers in place of Resolution VI, nobody in the convention seems to have objected:
the fact that it went unchallenged suggests that the committee [of Detail] was only complying with the expectations of the Convention. Where the committee lacked instructions, some of its actions clearly reflected special concerns of its members. But the process that unfolded during its ten days of labor is better explained as an effort to identify particular areas of governance where there were ‘general Interests of the Union,’ where the states were ‘separately incompetent,’ or where state legislation could disrupt the national ‘Harmony.’” [OM, at 178]
That is, Rakove argues that creating a list of enumerated powers was designed to implement the principle of Resolution VI. That is also my view.

Although he bases his arguments against Resolution VI on Rakove's work, Lash does not mention this passage in Rakove's book, (or at least he has not in the last version of the piece I read). But this passage seriously undermines Lash's argument.

[Update: Lash pointed out to me in an email that he did, in fact reference this passage in the July 21st draft he sent me. I apologize for not seeing it before.

Lash believes that Rakove's claim in Original Meanings does not matter much, however, because of two other points Rakove makes, both of which I also agree with.

The first point is that "[t]here is no reason to think that the framers believed that the necessary-and-proper clause would covertly restore the broad discretionary conception of legislative power in the Virginia Plan." I agree. That is why the Committee of Detail moved to an enumeration of powers. And this is what James Wilson argued in his speech before the Pennsylvania ratifying convention: Although the basic structural principle of the Virginia Plan was "sound and satisfactory," it would have given Congress "great discretionary latitude of construction." Therefore "[i]n order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care."

The second point is that "most framers agreed that the scope of national lawmaking would remain modest." I agree that those were their original expectations. Indeed, as Rakove relates, Gouverneur Morris wondered aloud whether Congress would even need to meet annually. Many of the framers believed that relatively few issues would present distinctively federal problems that would require the exercise of federal powers. It turned out that they were wrong about this --even in the first few decades of the new republic--although, to be sure, the scope of federal law making was quite modest by today's standards. Moreover, their assumption would be further undermined as America developed into a far more complex and interconnected economy and society like the one we have today. The framers' basic structural principle that "federal power is given to solve federal problems" has not changed, but how it applies does change based on changed conditions.

All of which brings me back to my original point. If Rakove is correct, as I believe he is, that the choice of enumerated powers was an attempt "to identify particular areas of governance where there were ‘general Interests of the Union,’ where the states were ‘separately incompetent,’ or where state legislation could disrupt the national ‘Harmony,’” then it would seem to follow that the enumerated powers were chosen in order to implement the principle of Resolution VI. This is the view I have argued for in my scholarship. And if that is the case, it seems to undermine Lash's central claim. And that is so even if--as I also believe--the framers expected in 1787 that the scope of national lawmaking using those enumerated powers would be fairly modest.]

Lash, however, has a second piece of evidence. He points out that later on in the convention, on September 14, the delegates considered additional candidates for enumerated powers. They rejected some and accepted others.

Benjamin Franklin moved to add "a power to provide for cutting canals where deemed necessary." [2 Farrand at 615]

Madison interjected, and proposed to amend Franklin's suggestion so that it would be a general power to create corporations: "to grant charters of incorporation where the interest of the U.S. might require & the legislative provisions of individual states may be incompetent."

A discussion followed. Rufus King said the power was unnecessary, while James Wilson countered that [i]t is necessary to prevent a State from obstructing the general welfare."

King responded that including it would create too many political problems, especially in Philadelphia and New York, where people feared the creation of a National Bank, and in some states it would be taken as a general power to create monopolies, which were very unpopular. Wilson once again disagreed; canals were important to the development of the West, the political opposition would not be as great as King feared, and besides, Congress already had the power to create "mercantile monopolies" through the commerce clause. George Mason argued for limiting the power to canals alone; he didn't like monopolies, and he didn't agree with Wilson that they were covered by the commerce power.

The convention then took a vote on Franklin's proposal for a power to establish corporations to build canals (but not Madison's general power to create corporations). It failed by a vote of 8-3, with Pennsylvania, Virginia, and Georgia the only yes votes. [2 Farrand at 616] Because the convention didn't want to specify a power to create corporations even to build canals, they didn't take up Madison's proposal.

Lash argues that this colloquy and vote proves that Resolution VI was rejected. But it does nothing of the sort. Resolution VI had been used a month before by the Committee of Detail to create a list of enumerated powers. The delegates were now debating which ones to add, subtract, or modify. Madison and Wilson, who at this point were two of the most nationalist delegates, argued for a new power on the grounds that there was a federal problem that required a federal solution. The other delegates disagreed with them for various reasons. This does not mean that they rejected the basic principle; it means that they did not think the principle required this new power, or as, Rufus King explained, that a specific grant was unnecessary anyway, and it would just provoke unnecessary opposition.

Imagine that a group of ten people agree that government will uphold "equal protection of the laws." Two of them argue that now they should support same sex marriage, because this would secure equal protection of the laws. The other people in the room disagree, a vote is held, and the two supporters are outvoted. Does this vote mean that the group has rejected the basic principle of equal protection, or does it mean merely that they disagreed about how to apply the principle to concrete circumstances? The latter, surely, even if we agree with the losers on the merits. But according to Lash's argument, this vote would be clear evidence that the group has abandoned the principle of equal protection because the two proponents specifically invoked the principle in their arguments.

This is a particularly wooden reading of the historical materials.

We should also put the delegates' colloquy in its larger context. Although Lash doesn't mention it, both Madison and Pinckney had already argued for a power to create charters of incorporation on August 18th [2 Farrand at 325]; the proposal was referred to the Committee of Detail, and didn't make it out. Now, a month later, Madison tried for a second bite at the apple. The fact the convention didn't adopt his proposal doesn't show that they rejected the principle of Resolution VI. It shows that they didn't want to adopt a particular enumerated power.

Moreover, right after the convention rejected the canals proposal, Madison proposed a power to create a national university [2 Farrand at 616]. Like his corporate charter proposal, he had already proposed it on August 18th and it too had not emerged from the Committee of Detail [2 Farrand at 325]. The university proposal was also rejected on the grounds that it was unnecessary, and Morris further argued that the power to create a national university was already included in the territory clause. [2 Farrand at 616]

This colloquy, like the previous one on canals, shows that the delegates often disagreed about what were distinctively federal problems that required federal powers, It also shows that they sometimes disagreed about the scope of the powers they had given Congress. What it does not show is they rejected the basic principle that that Congress was given its enumerated powers to solve federal problems.

Lash has simply failed to show that Resolution VI was discarded or rejected.

III. James Wilson's Speech at the Pennsylvania Ratifying Convention

This brings us to Lash's second major claim in the paper. Whatever happened to Resolution VI in the Philadelphia Convention, he argues that nobody publicly represented this principle in the ratification debates. I have argued, to the contrary, that James Wilson offers this principle as a justification for the enumeration of powers in a speech given to the Pennsylvania Ratifying Convention in November 1787. Lash responds that there are two published versions of Wilson's speech, and that neither version defends this principle.

It's important to understand why I am making my argument and why Lash is objecting to it. I'm making a structural argument: I want to know how the framers thought the constitutional plan would work, so I'm interested in both public and private statements about constitutional structure by the framers. But I'm not trying to show that a consensus of the ratifiers agreed with the framers on this question.

Lash, by contrast, cares a lot about the latter issue. He is not making an argument from constitutional structure. He is making an argument from original meaning. For Lash, however, "original meaning" also includes public representations about how the constitution would work that were also accepted by the ratifiers. That is, he includes original expected applications in original meaning, whereas I do not-- in fact this distinction is a central claim of my work on constitutional interpretation.

Therefore for Lash, it matters greatly which version of Wilson's speech was widely published before the ratification votes were held, whereas for me it's not that important at all. What Wilson said in a private letter, or what Madison said in a speech in the early Congress might also be useful information about constitutional structure, even though it would have had no effect on ratification.

Here is the version of Wilson's speech offered in Elliot's debates. It also appears in Volume 3 of Wilson's collected works, edited by his son, Bird Wilson in 1804. It is also the one I quote in my article on the commerce power:
Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty, because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care. [2 Elliot at 424-25]
Here Wilson argues that the framers articulated this basic principle--that whatever has operations or effects beyond a state is within federal power; and whatever does not is local--through "an enumeration of particular instances." In Wilson's view, the principle does not displace the enumeration, but it explains why Congress created the enumeration in the first place. That is also my view.

Lash responds that Wilson's principle is not the principle of Resolution VI. He argues that it is a different principle, one suggested by Roger Sherman, and one that was actually voted down by the convention:
To make laws binding on the People of the United States in all cases which may concern the common interests of the Union: but not to interfere with the government of the individual States in any matters of internal police which respect the government of such States only, and wherein the general welfare of the United States is not concerned. [2 Farrand at 21]
Compare Resolution VI, which says (in relevant part):

[2] "and moreover to legislate in all cases for the general interests of the Union;"
[3] "and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the
exercise of individual legislation."

Lash argues that since Wilson was really talking about Sherman's proposal, he was not talking about Resolution VI, and therefore the principle of Resolution VI was never publicly advocated.

This seems to me to be a distinction without a difference. Lash has not shown that Wilson was rejecting the basic idea in Resolution VI--federal powers to solve federal problems--even if he does not quote its text verbatim.

If anything, the principle Wilson states seems to be even broader and more nationalistic than the principle of Resolution VI. That is because Wilson would extend federal power to any case where a problem affected more states than one. But Resolution VI requires, in addition, that the states must be incompetent to solve the problem through individual action, or that conflicting state attempts to solve problem will disrupt the harmony of the union. That is, Wilson's principle requires only a showing of interstate operations or effects. Resolution VI requires a showing of interstate operations or effects that also create interstate externalities or collective action problems. The two principles may turn out to mean pretty much the same in practice, but as stated, Resolution VI is perhaps a tad narrower.

In the Philadelphia Convention, Wilson thought that Sherman's proposal was essentially the same as Resolution VI, as least as it was originally stated. He understood it as a friendly amendment, arguing that it "better express[ed] the general principle." [2 Farrand at 26]

Nevertheless, Gouverneur Morris objected that the reference to "internal police" was confusing: "[t]he internal police, as it would be called & understood by the States ought to be infringed in many cases, as in the case of paper money & other tricks by which Citizens of other States may be affected."

Moreover, after Sherman admitted that his proposal would not give the federal government the power of direct taxation, it was a nonstarter, because securing the power to tax was a major goal of many at the Convention. It was voted down 8 to 2. [Id. at 26.]

Notably, Wilson had agreed with Sherman (and even seconded his motion) before Sherman explained that his principle did not include the power of direct taxation. It is highly unlikely that the nationalist Wilson would have assented to-- much less advocated in public--any principle that he thought did not give the federal government broad powers of taxation. This in itself gives us some reason to doubt Lash's argument that Wilson was resurrecting Sherman's language months later in the ratification debates.

Even so, read charitably, Sherman's principle might have been construed much more broadly, for it allowed Congress to interfere with states' internal police where a problem (1) did not "respect the government of such States only," or (2) "the general welfare of the United States is . . . concerned." That was how Wilson understood it at first, and that is why he supported it before Sherman let the cat out of the bag about taxation. For Wilson, in other words, there was not a big difference between Resolution VI and what he (originally) understood Sherman's proposal to be.

Given this history, it's a real stretch to argue that Wilson was rejecting the principle of Resolution VI or that he meant to suggest a substantially different idea in his speech at the Pennsylvania ratifying convention. All three statements of principle are pretty similar-- as I've said Wilson's language is even a bit broader-- and the fact that he didn't quote Resolution VI word for word in his speech should mean little for purposes of structural argument.

In fact, the basic idea that federal power should obtain whenever states were separately incompetent didn't originate with the Virginia Plan. Here's James Wilson himself in 1785, arguing that this principle should be applied even to the old Articles of Confederation:
Whenever an object occurs, to the direction of which no particular state is competent, the management of it must, of necessity, belong to the United States in Congress assembled." [1 Wilson's works, p. 558]
If Lash is claiming that James Wilson was arguing for a substantially different principle than Resolution VI--not to mention one that was less nationalist--he has a lot more explaining to do. As it stands, this part of his essay proves virtually nothing.

IV. James Wilson's Two Speeches

Lash's final argument is that Wilson didn't even say the words I have ascribed to him. He points out that there are two versions of Wilson's speech. The first one was published by Alexander Dallas on November 28th, 1787, and was republished in a number of other newspapers around January 1788. (We'll call this the Dallas version). Dallas's version did not claim to be a verbatim transcript; it purported only to offer "the substance" of Wilson's remarks; it was based on informal notes taken at the convention by Dallas himself.

The second version is the one I have quoted above. It was published by Thomas Lloyd in February 1788 and this is the version that appears both in Elliot's debates and in Bird Wilson's 1804 edition of his father's collected works. (We'll call this the Lloyd version).

Why are there two versions of the speech? Well, it turns out that immediately after Dallas published his version it became very controversial. Wilson's Federalist supporters pointed out that it did not accurately reflect what Wilson actually said at the convention: Dallas's report was "very inaccurate, and not only parts are omitted and the leading points often lost for want of seizing the exact expression, but some parts are absolutely misstated." [2 Documentary History of the Ratification of the Constitution at 339] Because Pennsylvania Federalists thought that Dallas had misrepresented what Wilson said in the convention, Lloyd published a new version, and this version, and not Dallas's, was chosen by Bird Wilson for Wilson's collected works.

Lash's argument, nevertheless, is that Dallas's version is the one that should count, and it does not represent that the principle of Resolution VI was the basis of the choice of federal enumerated powers. Therefore this principle was never publicly represented in the ratifying debates.

Once again, Lash has engaged in heroic efforts to prove--well, not very much.

First, Lash may think that Dallas's version of Wilson's speech best reflects what Wilson said. But Wilson's Federalist supporters, who were much closer in time than Lash is, immediately objected that Dallas had made a hash of things. If that's so, then Lloyd's speech probably better reflects what Wilson actually said, i.e., his public representations at Philadelphia. So if Lloyd's speech is a better account, then Lash is wrong: Wilson publicly represented these ideas, even if a different version was published elsewhere.

Second, the fact that Dallas's speech, even if inaccurate, was widely published before Lloyd's doesn't tell us much about the Constitution's original meaning unless we think that public statements of original expected applications in ratification debates are part of original meaning. This is not my view--and I have said so repeatedly--but apparently it is Lash's.

Third, from the standpoint of structural argument, which is the only kind of argument I am interested in here, the relevant question is what Wilson and other framers thought about how the Constitution was supposed to work; we are interested in their public representations for that reason. And we are interested in public representations even after ratification. As I noted above, Lash hasn't shown that Wilson rejected the basic principle of Resolution VI as the reason for Congress's enumerated powers; at most he has shown that Wilson phrased the principle slightly differently, and in fact a little more broadly and in favor of national power.

In any case, let's have a look at Dallas's version of Wilson's speech (I have broken it into paragraphs for ease of reading):
[1]Another, and perhaps the most important obstacle to the proceedings of the Federal Convention arose in drawing the line between the national and the individual governments of the states.

[2] On this point a general principle readily occurred, that whatever object was confined in its nature and operation to a particular State ought to be subject to the separate government of the States, but whatever in its nature and operation extended beyond a particular State ought to be comprehended within the federal jurisdiction.

[3] The great difficulty, therefore, was the application of this general principle, for it was found impracticable to enumerate and distinguish the various objects to which it extended; and as the mathematics, only, are capable of demonstration, it ought not to be thought extraordinary that the Convention could not develop a subject involved in such endless complexity.

[4] If, however, the proposed Constitution should be adopted, I trust that in the theory there will be found such harmony, and in the practice such mutual confidence between the national and individual governments, that every sentiment of jealousy and apprehension will be effectively destroyed. [Documentary History of the Ratification of the Constitution, at 344]
One can readily see why Wilson's Federalist supporters thought that Dallas had mangled the speech. Paragraph [3], with its reference to mathematics, seems pretty garbled, whereas if you look at the corresponding passage in Lloyd's version you can see that what Wilson is getting at: Because it was difficult to decide how to apply a broad principle of Congressional power it was thought better to enumerate federal powers that applied the principle:
[3']But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty, because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care.

It is only in mathematical science that a line can be described with mathematical precision. But I flatter myself that, upon the strictest investigation, the enumeration will be found to be safe and unexceptional, and accurate, too, in as great a degree as accuracy can be expected in a subject of this nature.
Lash wants to draw our attention, however, to paragraph [2] of Dallas's version. Here Wilson says, "whatever in its nature and operation extended beyond a particular state ought to be comprehended within the federal jurisdiction," whereas in the Lloyd version Wilson says "operations and effects." For Lash this appears to be a crucial difference, and for him it establishes conclusively that Wilson could not possibly have been talking about the same principle as Resolution VI.

Frankly, I don't see it. It seems to me that the sort of problems that by their nature and operation extend beyond a state are those that create collective action problems or have interstate spillover effects. If so, then this version is actually closer to the principle of Resolution VI than Lloyd's version. Of course, that's not what Lash wants us to conclude, but it seems to be a pretty fair reading. And in fact, this reading is quite consistent with what Wilson said both at the Philadelphia Convention and in 1785.

V. Conclusion

At the end of the day, Lash has marched us up the hill and down the hill of constitutional history with very little to show for it.

It's always fun to work through the Philadelphia Convention and the ratification debates, and examine their many possible readings, but we should recognize at the outset the limits of what these sorts of inquiries can do.

There is an unfortunate tendency to think that close readings of the ratification debates will solve our modern problems, as if the difference between "operations and effects" and "nature and operations" in disputed versions of a speech in November 1787 would tell us once and for all whether the individual mandate for health insurance is constitutional. I think this is a fool's errand. As I've noted above, the evidence that Lash offers doesn't really make much difference either to original meaning (in my sense of the term) or to constitutional construction.

Nevertheless, it is worth going over Lash's arguments carefully precisely because they show how the use of historical evidence is always connected to background theories of interpretation and construction. That is why things that appear extraordinarily significant to Lash strike me as not very significant at all.

The reason is that, unlike me, Lash thinks that the minutiae of public representations in the ratification debates, and the subtle differences in rival renderings of James Wilson's speech in November of 1787 is crucial to determining how to be faithful to our Constitution today.

I long ago concluded that this was not the right way to do original meaning originalism, for such an approach quickly loses the forest for the trees, and indeed, in some cases loses the forest for individual leaves. Lash's arguments have merely reinforced this conclusion.


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