Balkinization  

Wednesday, April 03, 2013

Scalia v. John Marshall

Sandy Levinson

One of the things one has to do, obviously, when preparing to teach a case is to reread it, even if it is a monstrosity like the Obamacare case.  So in rereading Justice Scalia's fulminations, I was struck by the following sentence:  "Article I contains no whatever-it-takes-to-solve-a-national-probem power."  This is, of course, typical Scalia, clever phrasing that lulls the reader to say "of course."  I have myself criticized Ronald Dworkin for presenting a theory of constitutional interpretation that (at least at one time) seemed to promise only "happy endings," and it is important to recognzie that there may be genuine pain attached to "constituitonal fidelity."  Still, isn't Scalia's exuberant pronouncement directly at odds with what Felix Frankfurter once called the most important single sentence(s) in the canon, beginning with John Marshall's statement in McCulloch (the most important single case in our canon) that "we must never forget it is a Constitution we are expounding."  As I have written elsewhere

I confess that I was long mystified by what seemed clear hyperbole even from Frankfurter.  I have come to believe, though, that what justifies Frankfurter’s otherwise irrational exuberance is what follows several paragraphs later, when Marshall sets out what is most important about the legal documents we call constitutions.  He emphasizes that the United States Constitution is “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”   The point is that John Marshall recognized that the United States Constitution had to be a “living Constitution” (a term that, of course, he did not use) if it was to achieve the most fundamental purpose of “endur[ing] for ages to come.”  In this belief, he was a faithful disciple of his despised adversary Thomas Jefferson, who wrote, altogether correctly, that just as “manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”  Such adaptation is surely an important part of our constitutional history.This is presumably what Oliver Wendell Holmes meant by emphasizing that “the life of the law” was “experience” or what he called “the felt necessities of the time” rather than responses to the ostensible demands of cold “logic.”
So the question is whether Scalia (and his admirers) must admit that their real enemy is not "Progressive-era" living constitutionalists, but "the Great Chief Justice" himself.  Can one possibly have genuine respect, let alone "veneration," for a Constitution that is proudly construed to deny Congress the ability to solve a serious national problem?  Must the Scalian theory of a "limited government of assigned powers" be adhered to though the heavens fall?   Or is the point that he is totally indifferent to the purpose of the Constitution, which is not only to endure, but to establish justice, etc.  [Update:  One further possibility, of course, is that he does not actually believe that the health care issue in the US presents a real problem, so what is actually coming out is his particular brand of conservative politics.  It would be interesting to see if he would maintain the same detachment about the lack of federal power if he believed that the country did face a real "exigency" that only national action could meet, even if upholding it would require an expansive reading of Article I.] 



Comments:

Add to this the position Scalia took on the NPC in Raich. Raich would appear to support a broad reading of the NPC like the only in McCulloch.

Is your question: if we beamed Scalia back in time would he be a Jeffersonian or a Federalist, isn't the answer obvious? You think he would be a Jeffersonian, no?

If your question is: does Scalia think that McCulloch should be reversed? I would say yes, based on (1) joining Thomas's dissent in Comstock, and (2) his construction of the clause in NFIB v Sebelius.
 

I have long said this to the libertarian legal profs and philosophers, and when you say it, Sandy, I say, Bravo!! The argument that Scalia and Randy Barnett have is with John Marshall. The difference is that Randy Barnett has the integrity to recognize this, and he would likely also admit on a given day that if he was back in 1788, he'd be an Anti-Federalist like his hero, George Mason.
 

Yes, the Constitution does not, since it has limits etc. It has though a Commerce Power and a Tax Power, both (and probably more) is enough to uphold the law in question.


 

Is it clear to others than myself that the anti-Federalist of the early years would today be a member of the Federalist Society? What's in a name? Just "anti" up.
 

"Can one possibly have genuine respect, let alone "veneration," for a Constitution that is proudly construed to deny Congress the ability to solve a serious national problem?"

But of course; You'd demonstrate that respect by amending it, instead of pretending it actually had the power all the while. That's how actual constitutions are supposed to be adapted to changing circumstances: By changing the WORDS.
 

Surely Brett is not unaware that the interests of the Slave States bear much of the responsibility for the supermajority requirements for amending our Constitution. Yes, eventually amendments came about after the Civil War and its hight costs in lives and limbs. Brett seems to pine for those good old days of the good old whites boys in charge.
 

If the people running the government under a constitution can 'change' the 'meaning' of that constitution without bothering to use a formal procedure to change the words, then you can't know the meaning of it by reading the words, and you might as well admit you don't have a constitution any more, just the whim of those running the government.

It might be a good whim, if you're lucky, but it's not the rule of law.
 

Sandy,

You're misreading McCulloch. The quoted sentence merely supports the notion that there are implied powers that are incidental and subordinate to the express powers. It in no way supports giving Congress plenary power to address any national problem, let alone does it support a living Constitution.

Here's the full passage:

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.


 

Following up on my prior post:

The full passage from McCulloch is completely consistent with Scalia's dissent in NFIB. His whole point is that forcing people to buy a product isn't an express power (a direct regulation of interstate commerce) nor is it a "minor ingredient" that "can be deduced from the nature" of the commerce power, because it's such a radical shift in the nature of govt regulation. See, e.g., pp. 2646-47. The Chief's opinion makes the connection to this aspect of McCulloch even more explicitly. See pp. 2592-93.

Now, you might disagree with their perception about whether forcing people to buy things is a "minor ingredient" that "can be deduced from the nature" of the power to regulate interstate commerce, but that's hardly the same thing as accusing them of ignoring canonical law.
 

Marshall did not ignore the applicability of the necessary and proper clause.
 

"no way supports giving Congress plenary power to address any national problem, let alone does it support a living Constitution"

I am not aware that Prof. Levinson thinks that Congress has plenary power to address any national problem. Also, not seeing how it doesn't support a LC unless you mean some stereotypical epithet form.

Also, what is a "radical shift" is unclear. Was the New Deal one? How is regulation of 1/6 of the national economy via regulation of interstate commerce and the tax power not using an "express" power and/or less "necessary" than the bank was, alternatives available there as time showed.

Where is this "forcing people to buy" (to the degree taxing people who don't is that) problem in the text? People are "forced to buy" lots of stuff when Congress carries out its powers. Ginsburg did a good job showing the slipshod analysis of Roberts/S4.
 

The "great outlines" are there and future ages must "deduced from the nature of the objects themselves" in ways that the framers might not have expected.

This "idea was entertained by the framers" and in practice this provides a "living constitution" in which the text and principles are applied in certain changing ways as Madison understood as to the bank -- he was first against it but in his veto message he noted that in time it was recognized by the relevant parties to be constitutional.

The idea also applies, e.g., as to same sex marriage, which like equal roles for women in marriage over coverture was not expected but meets the "great outlines" of the text. The same applies to the powers enumerated.
 

There is a fundamental difference between the People through their representaives changing the Constitution through amendment and the government through the courts erasing the Constitution's limits on its power simply because the judge(s) believe that Congress ought to have the power to grant the executive control over an industry.
 

"it's such a radical shift in the nature of govt regulation"

This seems to me to be either some kind of argument from novelty or begging the very question. The constitution itself provides no explicit bar on prescriptive regulations, so it seems like one of those 'minor ingredients' to me...

Bart and Brett

As a matter of political science your arguments resonate quite a bit with me, but I don't see them meshing well with the opinion in McCulloch (after all, Marshall didn't write 'there is no enumerated power to create a national bank, so why don't its proponents propose and pass a national amendment')
 

Both Sandy and Jack Balkin have taken shots at Justice Scalia in recent posts. So perhaps as more shots are taken (and deservedly so, IMNSHO), such shots should be measured:

"On a Scalia of one to ten, one being a mere 'slippery slope' and ten being an eruption of Mt. Etna proportions."
 

Mr. W:

McCullough stands for the simple proposition that Congress may determine how to act within its enumerated powers, even if a particular act is not itself enumerated in the Constitution, not that the N&P Clause grants Congress a general police power.
 

Our yodeler's:

" ... not that the N&P Clause grants Congress a general police power"

may be on the mark but the N&P Clause did play a significant role in Marshall's (unanimous, 7-0) decision in upholding an act of Congress that addressed a matter not specifically enumerated as a power of Congress under the Constitution. This was far from a simple decision, being quite a bit more than the "simple proposition" echoed by our yodeler.
 

"Simple" things tend not to be that "simple" if they have any bite.
 

, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.

But even the "important objects" are not rigid designators.

 

There are too many valuable snippets in McCulloch v. Maryland to select only a few. The case as reported should be read in its entirety. And consider the history of the Framers/Ratifiers only a few decades prior to the decision in the case, written by someone who was there back when. In a sense, McCulloch is an example, a foundation, of living originalism.

I have downloaded Andrew Koppelman's paper "'Necessary,' 'Proper,' and Health Care Reform" that he links to in a recent post in which Andrew basically agrees with Sandy's post. That's my reading assignment for today.
 

Let's try these quotes, shall we?

Here is Chief Justice John Marshall writing on the Constitution for an unanimous Supreme Court, in McColloch v. Maryland 17 U.S. 316 (1819): The "constitution (was) intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument...It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur." This is as strong a defining statement of the Constitution as a "living" document as anyone has yet to write.

Here again is Marshall, in Ogden v. Gibbons 22 US 1 (1824), in a majority opinion, on the plenary (practically speaking, it means "absolute") nature of Congress' power to regulate commerce throughout, not just among the United States: "The powers delegated are of two classes: such as are expressly granted, and such as are implied, as 'necessary and proper' to carry into execution the powers expressly enumerated. As to these implied powers, the constitution must be construed liberally, as respects their nature and extent: because the constitution implies that rule, by not undertaking to enumerate these powers, and because the grant of these powers is general and unlimited." (Emphasis added)

And let's remember James Madison's statement in Federalist Paper no. 10:


James Madison, Federalist Paper no. 10: A "landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government." This sounds more like Ralph Nader and FDR than Scalia, Rehnquist, or Orrin Hatch.

Finally, Madison in Federalist Paper no. 37 says we can only learn the meaning of what he admits are broad and often obscure terms by the posterity of experience. That is also an admission that what was being created was a "living" Constitution.

So, the original intent was the living Constitution. I think Jack B agrees with me, doesn't he?
 

"McCullough stands for the simple proposition that Congress may determine how to act within its enumerated powers, even if a particular act is not itself enumerated in the Constitution, not that the N&P Clause grants Congress a general police power."

Well, of course the question was whether a mandate could be within the enumerated commerce power. No one disagreed with the idea that health care involved interstate commerce and that Obamacare was an attempt to regulate in that area, the question was whether the commerce clause (or the N&P power tied to the commerce clause) allowed for mandates as well as prohibitions in acting within that enumerated power.
 

Koppelman's paper is well worth a read. It recalls the back and forths on Yale Law Journal Online between Andrew and Lawson & Kopel on ACA and "Bad News for _________ [fill in the blank]." Andrew seems to take pains to avoid using the phrase "law office history" that Lawson & Kopel, non-historians, practice. Andrew is too polite but read with care between the lines of his Conclusion. Imagine the chutzpah of "discovering history" only to have it later trumped by discovering contradictory history. What happens to decisions based on the former?
 

I found Koppleman's book on recognition of marriages across state lines quite interesting and the history covered sadly lacking in many of the debates. What will happen when a person is married in NY but moves to another state that doesn't recognize the marriage? The question is far from novel. I plan to read the book version of his article.
 

Can one possibly have genuine respect, let alone "veneration," for a Constitution that is proudly construed to deny Congress the ability to solve a serious national problem?
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