Balkinization  

Friday, April 04, 2008

Framework Originalism and Skyscraper Originalism

JB

Today I continue my series of posts on living constitutionalism (One, Two, Three, Four, Five, and Six) by asking what kinds of originalism are consistent with the model. I will contrast two ideal types of originalism, one I will call framework originalism and the other skyscraper originalism. As the names imply, these two types of originalism differ on the degree of constitutional construction and implementation that later generations may engage in. Skyscraper originalism views the Constitution as more or less a finished product (albeit always subject to later Article V amendment). It allows ample room for democratic lawmaking to meet future demands of governance, but this lawmaking is not constitutional construction. It is ordinary law that is permissible within the boundaries of the Constitution. Framework originalism, by contrast, views the Constitution as an initial framework for governance that sets politics in motion and must be filled out over time. The goal is to get politics started and keep it going (and stable) so that it can solve future problems of governance. Later generations have a lot to do to build up and implement the Constitution, but when they do so they must always remain faithful to the basic framework. Put in terms of Article V, skyscraper originalism views amendment as the only method of building the Constitution, while framework originalism sees a major role for constitutional construction and implementation by the political branches as well as by the judiciary.

What does this distinction have to do with my theory? Well, in the past few years I’ve tried to outline a theory of constitutional interpretation that is both originalist and supports the notion of a living constitution. I argue that original meaning originalism and living constitutionalism are not only not at odds, but are actually flip sides of the same coin. I call it the method of text and principle. The basic idea is that interpreters must be faithful to the original meaning of the constitutional text and to the principles that underlie the text. But original meaning is not the same thing as the original expected application of the text. The latter is merely evidence of how to apply text and principle. Each generation is charged with the obligation to flesh out and implement text and principle in their own time. They do this through building political institutions, passing legislation, and creating precedents, both judicial and non-judicial.

I argue that this approach follows from paying attention to the reasons why constitutional designers choose particular language. Sometimes drafters choose to express themselves in clear rules, creating hardwired features that are relatively determinate. Sometimes they use standards, and sometimes they articulate principles. These standards and principles can be broad, vague or abstract. Then we have to implement them through practice or through precedents. And sometimes the drafters of a constitution deliberately say nothing at all about a particular issue.

I argue that the choice of rules, standards, principles, or silence is not accidental. Adopters use rules because they want to limit discretion; they use standards or principles because they want to channel politics but delegate the details to future generations. They leave things silent for any number of reasons: because certain matters go without saying because they are implicit in the structure of the constitutional system, because the adopters could not decide among themselves how to resolve a particular issue and therefore handed the problem off to the future, or because the adopters simply wanted to leave space for later generations to build up institutions.

A very familiar argument for constitutionalism is that it seeks to limit future discretion, to prevent future generations from making bad decisions, or being tempted to stray from good values. Although some constitutional features have this purpose and effect, I don’t think that this is the best general argument for constitutionalism. Constitutions are designed to create political institutions, and to set up the basic elements of future political decisionmaking. Their basic job is not to prevent future decisionmaking but to enable it. The job of a constitution, in short, is to make politics possible.

From a design perspective, the use of different types of legal norms– and silences– makes prefect sense. Sometimes you need rules to set up the basic framework of institutions. You do this not merely to assign roles and tasks or to conclusively limit or grant power. Rather, as the American constitution imagines, you might use rules to place different parts of the government in competition with each other, producing an indeterminate result. Constitution makers from the American constitution to the present day have included rights guarantees that sound in the vague and abstract language of principles. This choice of language makes little sense if the purpose of constitutionalism is to constrain future decisionmaking. It makes far more sense if the goal is to channel politics, by creating a set of key values and commitments that set the terms of political discourse, that future generations must attempt to keep faith with. Abstract rights provisions are valuable even if their contours are not fully determined in advance, because they shape the way that political actors understand and articulate the values inherent in the political system, what they can and cannot do, what they are fighting for and what they are fighting against.

Finally, constitutional silences and open spaces reflect the fact that adopters are not ominiscient and cannot prepare for every eventuality. Future generations must build up institutions and practices to make both politics and governance possible as the country faces new problems and opportunities created by changes in foreign threats, technology, economic conditions, culture, and demographics.

To give a simple example, consider the different sections of the Fourteenth Amendment, sent to the states together in 1866 and ratified in 1868. Section one of the Amendment is the most familiar to us today: it offers a fairly clear and determinate rule for citizenship, which was added at the last minute. But most of section one is written in abstract and vague language combining standards, principles, and terms of art; it speaks of “privileges or immunities of citizens of the United States,” “due process of law,” and “equal protection of the laws.” The reason for this is clear: The framers of the Fourteenth Amendment saw it as a statement of general principles and they wanted to leave open certain questions– including the tricky questions of racial segregation, miscegenation, and black suffrage– to a latter time. They wanted to offer a general statement of principles about the rights of citizens (and not merely limited to questions of black equality) that would no doubt be filled out by courts and by especially by Congress itself, acting under its enforcement powers under Section Five.

With the glittering generalities of Section One contrast the more rule bound and hardwired features of Sections Two, Three and Four. Section Two finesses the problem of black suffrage in a compromise, whereby states that denied black men the right to vote would have a proportionate share of population uncounted for purposes of calculating representation in the House (and the Electoral College). Section Three bars former rebels from holding federal and state offices, unless Congress “by a vote of two-thirds of each House, remove[s] such disability.” Section Four guarantees recognition of the debt of the Union in conducting the war and prohibits the government from paying off any of the debt of the Confederacy; it also extinguishes any property claims of former slaveholders.

Why would the very same Congress that used abstract standards and principles in Section One use such different language in Sections Two, Three and Four? The Fourteenth Amendment was an armistice that set out the new rules of politics following the Civil War. It was truly a Reconstruction Amendment in every sense of the word. Therefore it set up relatively clear rules about how to resolve unsettled issues in the war in Sections Two, Three and Four, while declaring (and thus leaving open for future specification) the scope of the rights protected in Section One.

The Fourteenth Amendment, which is part of our country’s second founding, contains in a microcosm the various different uses of constitutional language– and the purposes behind them– that exist in most constitutions, including our own. The choice of rules, standards, principles and silences in this Amendment makes sense when we look at it from the perspective of the drafters, who were constraining some things and leaving others open in the hopes that politics could flourish in the wake of a devastating Civil War.

So too, the 1787 Constitution is a framework for government following the widely acknowledged failures of the Articles of Confederation and the need to face a panoply of dangers and problems, some foreign and some domestic. It was a blueprint for a “more perfect union” that left much to be worked out in time, and indeed, controversies about how to build out the country’s political and governing institutions began almost as soon as the ink was dry. Within three decades, for example, the new country had to figure out, among other things, whether it had the power to acquire new territory, whether it could spend for the relief of citizens in particular localities rather than the country as a whole, and whether it could create financial institutions like a national bank. In some cases, the blueprint proved inadequate, as in the 1800 election, and so new amendments were necessary. Even before this, a declaration of rights, phrased in suitably vague and abstract terms, was the price of ratification.

A theory of originalism that takes this designer’s perspective sees the initial versions of a constitution as primarily a framework for governments, a skeleton on which much will later be built. We look to original meaning to preserve this framework over time, but it does not preclude us from a wide range of possible future constitutional constructions that implement the original meaning and that add new institutional structures and political practices not inconsistent with it. Call this approach framework originalism. In the framework model of originalism, the Constitution is never finished, and politics and judicial construction are always building up and building out new features.

The contrasting position, which we might call skyscraper originalism, assumes that the purpose of the Constitution is to contrain foolish and unwise decisionmaking in the future. The constitution is a bulwark, largely finished, which future generations have been assigned to preserve from human folly, base motivations, temptation, and decline. The goal is not so much to create space for growth as to prevent rot and decay. Given this overarching goal, we should interpret the Constitution to resolve as many of the details as possible, dividing up clearly what is left to the political process and what is not. The plan may in fact leave a great deal up to politics, but absent the use of the amendment process, that politics does not add anything significant to the Constitutional plan. It occurs as permissible activity within that plan.

Skyscraper originalism produces a somewhat different take on what a commitment to “original meaning” requires. For example, it becomes important to turn abstract and vague rights provisions into something as determine and rule like as possible, because only then will they properly do their job of constraining unconstitutional action and clarifying the space in which ordinary politics (as opposed to constitution building) may proceed. One way to do this is to identify the original meaning as closely as possible with the original expected application. That way we do not have to leave the scope and application of rights provisions to later generations. Intepreting rights provisions this way may not prevent very much; but it will at the very least prevent future generations from abandoning the concrete value commitments and expectations of the adopting generation.

Thus, for example, we might decide that the cruel and unusual punishments clause bans only those punishments that the generation of 1791 thought were cruel and unusual. This does not ban very much from our present day perspective, but it does protect us from a later, crueler time. If it does not aspire to moral improvement, at the very least it prevents moral rot and decay. Likewise the scope of federal power should be limited to the expectations of the 1787 Constitution. That might prevent a great deal of democratic lawmaking at the federal level– indeed, most of the modern administrative and welfare state and much federal civil rights protection, but at least it preserves state and local exercises of democracy and it preserves the sort of freedom that the framers imagined.

These two examples suggest why nobody really adheres to skyscraper originalism, at least in its most stringent form. Most originalists today think that there has to be considerable room for development of contitutional powers and rights over time. Sometimes they do it through the back door, by arguing, as Justice Scalia does, that non-originalist precedents are a pragmatic exception to commitment to original meaning. Thus, we accept the New Deal settlement and the vast array of federal regulatory powers to regulate health, safety, the economy the environment and civil rights– far more extensive than the framers would have dreamed of– because it is simply too late to go back and people have come to expect that the federal government can exercise these powers. This approach views the state building of the past century as a mistake which we must retain out of inertia. But if it is an exception, it is an exception that threatens to swallow the rule of fidelity to original meaning, at least if we construe original meaning in this way.

I think it is far better to see state building during the twentieth century, including both the administrative and welfare state and the Civil Rights revolution, not as pragmatic exceptions to originalism but as perfectly consistent with it. These are exercises in state building and constitutional construction, which have implemented and built out the skeletal system of 1787 and adapted it to contemporary problems of governance. The growth of the modern state fits poorly with skyscraper originalism, which imagines a very different sort of building entirely. It fits well, however, with framework originalism, because the latter assumes that the Constitution was never a completed thing in the first place. It was a plan of government with an initial allocation of powers, rights and responsibilities, that would be built up through collective action and political contestation over time.

It should by now be obvious that framework originalism is consistent with a wide variety of different forms of living constitutionalism, although not with all of them.

It also permits a great deal of contingency in how the constitution turns out, while each of these versions can still be faithful to text and principle. Put another way, framework originalism does not assume that the nature of the Constitution is fully contained in its origins, in the way that the structure of an oak is contained in an acorn. It does not assume a certain path of evolutionary development. Much is left to circumstance and chance, and this nation, like all nations, will face a wide range of unexpected upsets and challenges that will shape and alter its path and its character, sometimes irrevocably.

Comments:

whew! i'm goingto be a while digesting that prof .. but thanks ..
 

I agree that the answers to all constitutional questions weren't fixed at the time of the framing, but I don't think that the "framework" metaphor is quite right. That suggests that there isn't any proper method or constraint on how to fill in the rest of the building. But I think that there are right answers to questions of what counts as "privileges or immunities of citizens of the United States," based on a careful assessment of which privileges are generally given to all citizens. The framers could be wrong about that--for instance, Wilson in 1866 might be wrong, and Sumner in 1871 might be right, about whether schooling was a right generally given to all citizens--but there is a definite question to answer, once we decide what the first "of" means in its historical context. (Similarly for "abridge"--we look to history to generate the relevant question, and then to the actual facts to find the answer.) It's not like the P-or-I Clause simply tells future generations to "protect the rights of citizens as you think best." And it's not like the EPC simply tells future generations to "promote equality the way you think best"--it uses language about "protection of the laws" that, I think, was well-understood as protection from violence and the right to a remedy. Rather than a merely structural, unfinished Constitution, I'd prefer to talk about a Constitution with a moving part. The text tells us which facts we have to assess in order to find out exactly what the Constitution forbids and requires. Later interpreters have a textually-specified discretion to find those facts, not because the Constitution is unfinished, but because the Constitution itself gives them that power.
 

I downloaded but have yet to read Steven G. Calabresi and Sarah E. Agudo's article titled "Individual Rights Under State Bills of Rights When the Fourteenth Amendment was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition?" available at SSRN. (There is a link at the Legal History Blog.) This article runs just over 100 pages. Hopefully it will help to understand better "privileges and immunities."
 

..I don't think that the "framework" metaphor is quite right. That suggests that there isn't any proper method or constraint on how to fill in the rest of the building.

Chris, how do you come to this conclusion? It seems to me that that's exactly what a framework does--by defining the footprint of the structure, if nothing else.

Maybe it's just me, but I don't see any great contradiction between the process you outline in your comment and Jack's "framework originalism."
 

So are you saying that the New Deal adjustment actually was consistent with original meaning, though not, of course, original expected application? Doesn't Wickard at least get pretty far afield from any conceivable reading of original meaning?
 

Not to discourage traffic to the Mary Dudziak's blog, but here's a link to the Calabresi-Agudo piece. I agree with Shag that that's exactly the kind of spade work that we need to do to determine the application of the P-or-I clause.

PMS: Why do I think that the unfinished-building approach leaves discretion in the later political process? Balkin says that the Constitution would be "built up through collective action and political contestation." He says that "the Constitution is never finished, and politics and judicial construction are always building up and building out new features." That sounds different from answering particular textually-specified questions. The 14A isn't an unfinished product to which we add things that we like; it's a finished product with a particular (finished) moving part. It's true that the footprint of a building constrains further development, to an extent, but I think the 14A does more than that--I think it tells us exactly what questions we need to answer to find the reference of constitutional language. The constitution's not just a structure; it's a list of complete instructions, albeit instructions that we need fact-finding in order to obey.

Here's one way to think about it--I, as a private interpreter with no political power, possess the ability to assess the reference-yielding facts, and thereby to figure out what the Constitution requires today. But I can't do anything "through collective action and political contestation." I think that the interpretation of the Constititution isn't something ineliminably requiring politics. Careful scholarship, and depending on the provision, attention to politics, yes, but politics itself, no.
 

I agree with tray. I think Professor Balkin's basic sentiment is correct, but the problem is that the New Deal caselaw (especially Wickard) didn't preserve the distinction between interstate and intrastate activity that was a fundamental principle of the original Constitution. The Constitution was a compromise between federal and state power, and Wickard leaves little room (except for the state itself exercising sovereign functions, as in New York v. United States and Printz v. United States) for exclusive state power.

"Framework originalism", properly understood, should still require that we stay within the framework. We can have arguments about what is or isn't within the commerce power, practically interpreted to deal with current realities, but the federal government cannot be empowered to use the commerce power to restrict truly local activities.
 

I think Professor Balkin's basic sentiment is correct, but the problem is that the New Deal caselaw (especially Wickard) didn't preserve the distinction between interstate and intrastate activity that was a fundamental principle of the original Constitution. The Constitution was a compromise between federal and state power, and Wickard leaves little room (except for the state itself exercising sovereign functions, as in New York v. United States and Printz v. United States) for exclusive state power.

It seems to me that the "fundamental distinction" you mention is actually just an "original expected application". Under Prof. Balkin's theory, we're not bound by that.
 

The "New Deal adjustment" was in fact an adjustment of the facts to originalism, not of the underlying theory. Commerce changed dramatically between 1789 and the 1930s. What constituted "interstate commerce" became synonymous with "commerce," since transportation, etc. became much more open.

Here is another example not commonly looked at in this concept: the right to counsel. Some originalists don't like the idea of a right to appointed counsel, since such a right did not exist at the time of the Founding. This, however, is missing the forest for the trees. In fact, it is possible to have a consistent position holding that there was no constitutional right to counsel in 1789, but there is now.

Criminal procedure at the Founding was a very simple affair. There were no rule books for procedure. Trials were also much shorter. Most people could handle their own defense. There also was next to no forensic evidence.

In contrast, criminal procedure now is much more complicated. A defense or point on appeal could be waived very easily. Trials are generally longer and more intricate. Forensic/scientific evidence is much more important now. All of this means that having counsel in much more important now than it was 220 years ago.

The right to counsel is not fundamental. It is derivative on the more fundamental right to an adequate and fair defense. If criminal practice changes to make it harder to defend oneself, then a right to counsel could exist when there was none previously, since it would be the only way to protect the fundamental right to an adequate and fair defense.
 

I see shades of T.K. Seung here. See the introduction from "Plato Rediscovered": the bedrock theory of the forms, and the skyscraper theory of the forms.
 

I would contend that, if the drafters of the Constitution intended to allow the judiciary to enjoy a "major role" and indeed a partnership with the Congress in "constitutional construction," Article V would not have expressly set forth the powers of Congress in this regard with nary a reference to the Judiciary.

The drafters of the Constitution made no mention of a judicial power of constitutional construction when they were selling the compact to the People. As Hamilton observed in Federalist 78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Even if we discard and ignore Hamilton's "original expected application of the text," framework originalism still appears to have a fatal internal contradiction. While this theory allows living constitutionalists in the Judiciary enormous latitude to construct the Constitution as they see fit (a judicial dictatorship to borrow Sandy's favorite phrase), framework originalism still requires the courts to defer to the hardwired provisions of the Constitution which expressly set forth definitive rules. Article V is just such a hard wired provision which specifically and in detail sets forth the circumstances under which federal and state legislatures (not the judiciary) may go about "building up and building out new features" of the Constitution. In contrast, the Constitution does not provide a general standard or silence in Articles III or V which would allow the judiciary to build new features onto the Constitution. Thus, under the framework originalism theory, the very framework of the Constitution does not permit the Judiciary to be contractors in the building of the Constitution.

Despite some heroic efforts at constitutional triangulation, I would suggest that there are really two basic choices - following the original expected meaning of the Constitution (originalism) and ignoring the original expected meaning of the Constitution (living constitutionalism).
 

I think the "neither force nor will, but merely judgment" captures a bit of my uneasiness with the framework metaphor. That said, we need to remember Federalist 37 too: "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." That points to a gap between meaning (I'd say sense) and application (I'd say reference). Or as Sutherland puts it in Euclid, "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. . . . [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles . . . ." But the gap between sense and reference, or meaning and application, is filled by the assessment of the reference-yielding facts--i.e., the use of judgment, not force or will or "collective action and political contestation."
 

It seems to me that the "fundamental distinction" you mention is actually just an "original expected application". Under Prof. Balkin's theory, we're not bound by that.

No, Mark, it isn't. An original expected application would be to say something like what Thomas says: "the framers did not understand commerce to include manufacturing, therefore it doesn't matter that our understanding of interstate commerce and its interconnection has expanded to include forms of manufacture of goods for injection in the stream of interstate commerce". That is not the claim I am making.

Rather, I am saying that the facts of Wickard are outside ANY definition of interstate commerce-- the activity of a subsistence farmer growing his own wheat for his own consumption is NOT interstate commerce. (I would say the same thing about growing your own marijuana in Ashcroft v. Raich.)

At some point, something must be considered outside the framework, or else the framework analogy is meaningless and there is no originalist component at all in the jurisprudence. And our commerce clause jurisprudence has clearly gotten to that point, because at this point NOTHING can be said to be intrastate commerce. You may not be bound to the original expected application, but the original understanding was that there was to be a limit on Congressional regulation of local activity. Perhaps the boundaries change over time, but the concept that there is a boundary cannot.

Wickard is indefensible under any originalist theory. (Indeed, I think it is indefensible period.)
 

Dilan, if you're not making an originalist argument, then I didn't understand that part of your first post which referred to "the distinction between interstate and intrastate activity that was a fundamental principle of the original Constitution."

As I now understand you, you're saying that growing subsistence wheat isn't "interstate commerce" under any conceivable theory, whether judged today or at any time. I disagree. The farm price support system adopted during the Depression was considered an essential tool for providing relief victims of one of the worst tragedies ever to strike this country.* Individual non-compliance had the potential to undermine the system entirely. In that context, I don't see how the Court could have ruled any other way.

*I'm not taking a position on the overall policy of farm price supports. I'm just noting how they were generally viewed at that time.
 

Mark:

I tend to agree with Balkin's argument that the courts need to stay within the framework but don't necessarily have to stay within the original expected application.

Thus, my argument is that the subsistence farming in Wickard could not be considered interstate commerce, even if we grant that the extent of interstate commerce expanded since the time of the adoption of the constitution.

Your argument, coming back, is that the regulation wouldn't work without the participation of subsistence farmers. I actually don't buy that as an emperical matter-- carving an exception for subsistence farming has NO effect on the integrity of farm price supports, as there are so few subsistence farmers and they don't buy their food at market anyway.

But even if it is true, that still doesn't make this an activity that has anything to do with interstate commerce. Only by "aggregating", i.e., by saying that Filburn was in the same enterprise as non-subsistence farmers, was the Court able to get around that. But at that level of generality, everyone is in the same enterprise as everyone else.

By the Court's logic, a child's front lawn lemonade stand, selling lemonade prepared from homegrown lemons and sugar and water from a well on the property, was subject to federal regulation. If that is true, there is NO "framework" anymore. Indeed, there is no commerce clause. There is just a power of Congress to regulate any economic activity.

At that point, I really would stand with Bart and his ilk-- that's the living constitution gone amok, because a textual limitation has been read out of the Constitution completely.
 

To be honest, Dilan, I think this whole move from original expected application to original meaning, while attractive at first, doesn't really wash and is just a way to skirt unattractive consequences of a more thoroughgoing originalism, and behind it all is a sentiment that the Constitution's way too hard to amend, so we should just let the Court do the work for us as long as they don't stray too far from what the people would agree to if the requirements for amendment weren't so onerous. And that's a defensible position, but it's not an originalist one. If it were true that the framers and amenders intentionally wrote vaguely so that future generations, with their new notions of what's cruel and what's equal and what's interstate, could have wiggle room to adapt the Constitution to changing circumstances and mores, I think the meaning/expected application distinction would be a sound one. But if the framers wrote in terms that were perfectly clear to each other and simply never thought about how ambiguous their language would become with time, then I don't think the meaning/expected application works. For example, suppose I ask, by e-mail, a gofer in my employ to "buy me apples from the store." This gofer has worked for me for a long time and therefore knows what store I mean, and also knows that I hate apples from some other store. Indeed, I would rather eat no apples than eat those apples. Unfortunately, one day my gofer catches a cold and sends someone else to work in her place, and she simply forwards my e-mailed requests to the substitute gofer. The substitute gofer then goes to the store with the apples I hate and buys me apples. Now, is the substitute gofer in compliance with my request? Of course not. Here, knowledge of the original expected application is needed. Following the 'original meaning' of my request is as good as not attempting to fulfill her duty at all. The fact that my language is incredibly vague on paper doesn't at all mean that I expected substitute gofer to pick whatever store they liked, it just means that I never contemplated the problem of substitute gofers, that it never occurred to me that for some the meaning of 'the store' might not be so obvious.
 

I don't think Tray's apples-from-the-store example offere a compelling reason to prefer original application to original meaning. Interpreting the meaning of words like "the store" requires knowledge of the original context. Your example involves a substitute gofer who goes to "a store," but not "the store," as the word was used in its original context. But that's just a failure to follow original meaning, so it's not a good counterexample. The meaning-application distinction applies even if a word itself if perfectly clear: if I tell a gofer to go get me "healthy food," not knowing myself what's healthy, then the gofer should assess what's really healthy, not try to figure out what I thought would be healthy.
 

Your argument, coming back, is that the regulation wouldn't work without the participation of subsistence farmers. I actually don't buy that as an emperical matter-- carving an exception for subsistence farming has NO effect on the integrity of farm price supports, as there are so few subsistence farmers and they don't buy their food at market anyway.

Let me address the empirical argument first. I'd note two considerations:

First, the judge of the empirical effect of the regulation, assuming it meets some test of interstate commerce, MUST rest with Congress. That's been clear since at least McCulloch v. Maryland, and I think it has to be the rule.

Second, the Court in Wickard took the allegations of subsistence usage at face value, but that doesn't mean we have to. There was a concerted effort to undermine the New Deal legislation by challenging every aspect of it. Allowing "subsistence" farmers to avoid the price support system would, in the market of the 1930s, have been a loophole large enough to drive a truck through. I know -- my g'grandfather was one.

This segues back to the issue of whether individuals can undermine Congressional regulation. This, of course, has nothing to do with federalism per se; the state was not involved at all. (This comment is not directed at you, just at readers generally.) Letting individuals subvert Congressional regulation undermines the basic principle of government, namely, that it operates on individuals. Might as well let tax protestors avoid taxes.

Only by "aggregating", i.e., by saying that Filburn was in the same enterprise as non-subsistence farmers, was the Court able to get around that.

Subject to my comments above, agreed. I'm with Marshall and Hamilton: if the end is legitimate (and regulation of the price of food in interstate commerce clearly is), then Congress necessarily possesses the means to accomplish that end. Otherwise I can't see any way to pass child labor laws.
 

If it were true that the framers and amenders intentionally wrote vaguely so that future generations, with their new notions of what's cruel and what's equal and what's interstate, could have wiggle room to adapt the Constitution to changing circumstances and mores, I think the meaning/expected application distinction would be a sound one.

That's the question you are begging, though. It seems to me that phrases like "cruel and unusual punishment" and "due process" do suggest that the framers expected succeeding generations to reinterpret the provisions. Other portions of the Constitution are more fixed in meaning.

So whatever jurisprudential theory one adopts, it needs to respect the text and not render provisions meaningless or inoperative, while at the same time interpreting those portions which were supposed to have vague or fluid meanings in a manner that is consistent with contemporary practice.

Prof. Balkin is trying to do that. He may have even succeeded. But I disagree with him on questions of application; to my eyes, claiming that a local subsistence farmer is participating in "commerce among the states" can't possibly be right, even given the contemporary changes in the nature and extent of interstate commerce.

The other thing to remember about originalism is that, as Chief Justice Marshall noted, it is a Constitution we are expounding. It is supposed to be a workable structure for our government to operate within. Thus, in an earlier thread, Bart DiPalma argued for the unconstitutionality of the Federal Reserve because the framers did not conceive of administrative agencies not fully within the control of the executive branch. As a matter of originalism, he may be right, but that looks to me like a knock on originalism, not a knock on the Federal Reserve, because it is quite obvious-- unlike the example of subsistence farming-- that the maintenance and regulation of a modern economy within a modern political system really does require that Congress or the President not have ultimate control of the money supply. The text of the Constitution doesn't forbid agencies to be set up like the federal reserve; perhaps the notion of executive power has changed over 200 years, and the original intention really isn't very relevant to the circumstances we find ourselves in.

Now, the diehard originalist would say "let's hold it unconstitutional anyway". But an interpretative philosophy that leads to such bad results isn't a very good philosophy, it seems to me.
 

Mark:

First, it seems to me you are wrong about deferring to Congress. The Constitution prohibits Congressional regulation of local, intrastate commerce. Why not put the burden on Congress to show actual circumvention and then, if that is shown, we might relax the commerce requirement?

Second, I still don't see any connection between your analysis and constitutional text. Any defense of Wickard, it seems to me, has got to start with "what regulation of ecomomic activity is still reserved to the states under the Commerce Clause?". And if the answer is "nothing", then you are no longer interpreting the Commerce Clause; you are engaging in judicial activism.

Third, the Child Labor Cases were rightly decided because they involved downstream activity connected with interstate commerce. If a good is made with Child Labor, and crosses state lines, Congress can prohibit the crossing, and can also prohibit an ensuing sale which traces directly from the interstate activity.

If Wickard had been selling his grain in interstate commerce, the analogy would be that this would permit Congress to regulate its production upstream. But he wasn't-- he was consuming the grain himself. At no time did it enter interstate commerce. So the theory had to be that because other farmers were transacting interstate business, it didn't matter if Filburn was entirely local. And at that point, the Commerce Clause is meaningless.
 

The late Thomas Reed Powell addressed Wickard in his 1955 James S. Carpentier Lectures at Columbia titled “Vagaries and Varieties in Constitutional Interpretations” as follows (from “Chapter III. National Power”):

“The revised crop restriction plan for wheat established quotas after a referendum and penalized production in excess of the quota. This was sustained in Wickard v. Filburn in an able latitudinarian opinion by Mr. Justice Jackson. This abandoned the adjectives and nouns previously bandied about in the opinions and planted itself on practical economic considerations of the effect of crop restriction on prices. ‘Direct,’ ‘indirect,’ ‘production,’ ‘consumption,’ ‘marketing’ were terms thrown into the discard so far as the scope of national power is concerned, though they may be helpful in some cases of statutory interpretation. In summary Mr. Jackson says that ‘ … even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as “direct” or “indirect.”’ And this he regards as a return to Mr. Chief Justice Marshall. The reach of the judgment in the particular case is made clear by its application to all grain grown on the farm in excess of the quota, including that consumed on the farm for feeding the grower’s own stock. Obviously the crop restriction plan could in considerable or in large measure be restricted or defeated if grain grown for home consumption may not be included in the allowable quota. With this opinion by a much lamented Justice, formalism has been succeeded by plain common sense.”

In concluding this chapter, Powell comments: “Those who have been for keeping the national power within narrow limits have undoubtedly been from time to time firmly imbued with a laisser faire doctrine, and some presumably have been sincerely seeking to think what the Framers and the Ratifiers would have thought in the late eighteenth century. Happily, however, the Framers were wise enough in their day to leave room for the judgments of their successors, though they could not anticipate the economic and physical integration that would make all sections of the continent from sea to sea members one of another. The infant nation was fortunate to have a Washington, a Hamilton, and a Marshall to start it on its way. And latterly it has been fortunate to have judicial successors to Marshall who have been aware that a nation should have the power of a nation. Whether Congress can always with wisdom wield the wide powers more accorded to it, is a different matter.”

We need the wisdom of Congress. Black and white may be evidenced by Oreo cookies but the Constitution still needs interpretation that is not a matter of bumper-sticker simplicity.
 

"But an interpretative philosophy that leads to such bad results isn't a very good philosophy, it seems to me."

I knew our agreement that Wickard was a crock wouldn't keep us together long.

An interpretative philosophy must strive for accuracy, not good results. Because documents really CAN mean things that cause bad results, and if you're determined that you won't read a document to produce bad results no matter what it says... You may be engaged in philosophy, but you're not engaged in interpretation anymore. You're just substituting something you like more than what the text actually means.

The appropriate response when a constitution actually means something that's bad policy, is to amend it. Why do 'living constitutionalists' flatly refuse to take this option seriously?

I suspect it's because they fear that they could never convince enough people that the parts of the Constitution they dislike really ARE bad policy.
 

Thomas Reed Powell, unsurprisingly, describes the argument much better than I can. Unintimidated, however, I'll add a few thoughts of my own.

First, it seems to me you are wrong about deferring to Congress. The Constitution prohibits Congressional regulation of local, intrastate commerce. Why not put the burden on Congress to show actual circumvention and then, if that is shown, we might relax the commerce requirement?

Let's be sure I'm clear about this. What I'm saying is that once we agree something is commerce, then Congress gets to decide on the means of regulation. That's precisely what Marshall said in McCulloch:

"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."

As for putting the burden on Congress to show actual circumvention, that's a formula for disembowling the federal government. It would spend its entire time in court trying to prove that Brett wasn't "circumventing" some commercial regulation by his "private" action (a "private" action duplicated, of course, by thousands of others). I can't imagine what evidence would be required in such a case.

I still don't see any connection between your analysis and constitutional text.

The text is the IC clause. It's no more definitive or self-explanatory than "liberty" or any other of a dozen words in the Constitution. All we're doing is arguing about what's encompassed within that phrase.

The real problem is that in this day, in constrast to 1789, the economy is seamless. Take drug policy. There can't be much doubt that Congress can control the flow of narcotics in interstate commerce. If I, however, decide to grow my own coca plants and use the cocaine myself, I've just undermined the entire system. The same is true for pretty much any other activity one could name.

Any defense of Wickard, it seems to me, has got to start with "what regulation of ecomomic activity is still reserved to the states under the Commerce Clause?".

To the contrary. The IC clause is an express grant of power to Congress. There doesn't have to be any regulation left to the states, any more than there has to be residual state power to raise an army.

This is, in fact, perfectly consistent with the original understanding. The states, taken severally, are by definition incompetent to regulate interstate commerce. Hence Luther Martin in the passage I quoted in the earlier thread:

"because the States individually are incompetent to the purpose, that the United-States should also regulate the Commerce of the United-States foreign & internal, is I believe a matter of general Consent…”

Note two aspects of Martin's statement: the word "internal" is much broader than the word "interstate" (and he was an anti-federalist!); and that he concedes that the whole point of the clause is that Congress has the power precisely because the states can't and therefore don't.

Again, this still leaves us with the question "what constitutes 'interstate commerce'?". The SCOTUS spent 50 odd years trying to define that term in such a way as to leave power in the states. It can't be done; any such definition will be purely arbitrary. As Powell said, it was an exercise in common sense when it gave up.
 

I disagree with Brett a little and I disagree with Shaq and Mark a whole lot.

So I will start with Brett.

I don't disagree that the Constitution can sometimes compel bad results. But my reaction to this depends on how vague the provision is.

It seems to me that with respect to something like, say, the electoral college (which I can't stand) or the 14th Amendment citizenship clause (which I think is fine but many conservatives can't stand), I agree that you have to do what the document says, no matter the policy implications.

But what about with more vague provisions? Well, I would say that insisting on strict originalism when it leads to awful results in interpreting vague provisions which could be given a reasonable interpretation in the other direction, that's a serious knock against originalism. Because you are assuming your conclusion; the result is not compelled. You could go the other way, and it could still be defended as a correct result, because the provision is vague.

The problem with strict originalism is that when it is used as a canon for resolving vague texts, it sometimes gets us the wrong result. And there's no justification for doing that which isn't completely circular, i.e., it's the correct result because it's the original intent, and the original intent is the only way to interpret because it yields the correct result.

But as I said, I actually think that's not as fundamental as my criticism of Shaq and Mark. So I will move on to them in my next post.
 

Shaq quotes Thomas Reed Powell, who basically seems to view the limitation on the grant of power to Congress to INTERSTATE commerce to be a niusance that was rightly swept away when the Court got the chance.

But I have several problems with this:

1. I don't think courts have the right to simply ignore the words "among the states", or the more fundamental point that the entire structure of the Constitution divided sovereignty between state governments which would regulate local activities and federal governments that would regulate interstate commerce. I don't think the Constitution is ambiguous in this regard. It IS ambiguous about what CONSTITUTES commerce among the states, but it is not ambiguous that if a form of commerce is NOT interstate commerce, it is outside of Congress' power to regulate.

2. Given the express text of Article I Section 8, you can't appeal to policy grounds to get around it. If regulating subsistence farmers was such a compelling cause, FRD should have sought a constitutional amendment. I would note that this is especially important in this instance, because the limitation on Article I powers was really one of the key points of compromise at the original constitutional convention. The states NEVER would have agreed to a Constitution that granted Congress plenary power to regulate economic activity. It seems to me that if the federal government wanted to renegotiate this, it needed to seek the states' permission.

3. Powell notes that Wickard rejects the former multiplicity of tests of what constitutes "interstate" commerce, which I fully concede are the result of the fact that it is very difficult to draw lines in an integrated national economy between local and interstate activity. Instead, Wickard says that as long as something has a "substantial" effect on interstate commerce, it can be regulated.

The thing, though, is that this is quite self-evidently an even worse test than the ones it replaced. First, what the heck does "substantial" mean? At least the old test attempted to draw distinctions. This test means whatever any judge says it means.

Further, though, it is entirely clear that Wickard itself misapplies the test. It is, to not put too fine a point on it (and with all respect to Robert Jackson, who did a number of great things on the Court despite bearing the terrible stain of Wickard), a lie to say that Filburn's activity had ANY substantial effect on interstate commerce. And, indeed, this is why the Court has to make the additional move of saying that Filburn's activity didn't have to have a substantial impact, or even ANY impact, on interstate commerce. Rather, it was enough that EVERYONE doing the same thing he did, farming, taken TOGETHER, substantially effected interstate commerce. That essentially moves us from a government of limited powers to one of unlimited powers. It was a clear violation of the framework that Professor Balkin refers to.

4. Powell's reference to laissez faire economics isn't an argument. It is an ad hominemm attack, a slur and an epithet that is unworthy of him. I have no love for laissez faire economics. I just don't think "commerce among the states" encompasses the activities of a subsistence farmer or a woman growing her own medical marijuana with the permission of her state's government. Indeed, in the latter situation, many many liberals and leftists who have no love for libertarian or conservative economics supported the position that this was not interstate commerce.

Further, and this gets to a central point here, I think the claim that subsistence farmers will completely undermine the federal farm price support system is total bunk. First of all, let's be clear here-- unlike my Federal Reserve example, the fate of the Republic simply did not depend on the constitutionality of the Agricultural Adjustment Act.

Second, subsistence farmers are a self-limiting phenomenon. Most farmers want to make a living, and subsistence farming doesn't do that. Once a farmer sells even an ounce of grain on the national commodities market, there's no commerce clause problem. So this was going to be, at worst, a boutique phenomenon of a few people who didn't have to live by the federal government's rules because they didn't affect the market very much.

5. The contention that our economy got more integrated since the founding, is, of course true, and I do not argue we are stuck with the conception of interstate commerce in 1787.

But that doesn't prove Powell's case. You see, in order to reach his conclusion, you have to prove that there is not a single second of labor or a single dollar or barter equivalent of capital in the American economy that does not constitute INTERSTATE commerce. And that contention, of course, is totally false. Could you say that 50 percent of economic activity was local in 1787 while only 3 percent is today? Quite possibly. But that means that the Constitution requires that the 3 percent that is local cannot be regulated by Congress.

Indeed, I would argue that this is all the more important when we are talking about a reduction to 3 percent from 50 percent, for two reasons: (1) interpreting the notion of local commerce out of the Constitution repudiates the bargain that the states made when they entered the union, as noted above, and (2) in a free society, people should have the power to voluntarily withdraw themselves from interstate commerce so as not to be subject to regulation by a federal government elected by other constituencies who have no understanding of the lives they lead or the problems they face.

Angel Raich is, in fact, an example of point 2. She is not allowed to grow her medical marijuana in California, to treat her illness in the manner she sees fit, despite the approval of her local authorities, because conservative voters in Southern states with a disproportionate share of electoral votes are offended by something that is none of their business, at least when it goes on outside their state.

Having some residual area of human activity removed from federal regulation protects liberty in a very important and fundamental way. It leaves people alone who wish to be left alone and who aren't harming those in other jurisdictions.

I will address Mark's points in one more post.
 

Mark:

1. You propose that once we agree that something is in commerce, then it is up to Congress to determine whether it needs to be regulated. But that test is not faithful to the constitutional text, which says that Congressional power is limited to commerce AMONG THE STATES. You don't get to read those words out of the Constitution just because you would like Congress to be able to regulate purely local activity.

The test I propose is that once we agree that something is in INTERSTATE commerce, then it is up to Congress to determine how to regulate it. But if something is NOT in INTERSTATE commerce, then Congress gets no presumption, and has to prove that a ban that restricts itself to interstate commerce will be circumventable.

There's no reason to give Congress a pass on the INTERSTATE portion of the provision, which is CONSTITUTIONALLY REQUIRED by the text and is fundamentally important for the reasons stated in my response to Shaq.

2. I hate to sound like Bart (I REALLY hate to sound like Bart), but he is right that the Necessary And Proper Clause cannot circumvent textual limitations on congressional power. In other words, if regulation of an economic activity is necessary and proper to regulate interstate commerce, there can be latitude. But since the fundamental bargain among the states was that Congress' power over economic activity would be limited to interstate activity, and intrastate activity was to be reserved to the states, the necessary and proper clause can't be used to read that out of Article I Section 8.

3. Of course, you don't think that the Commerce Clause limits Congressional power at all. And, of course, in one sense you may be right-- it just grants Congress power over interstate commerce. However, this view is ahistorical-- as I said, the fact that the states wanted to give Congress more power than it had under the Articles of Confederation, while still reserving the regulation of local activities to the states, is about as uncontroversial a statement of legislative intent as there is.

Further, if you believe that the only effect of the Commerce Clause is to grant power, then you must agree with Thomas that the Supreme Court's entire dormant Commerce Clause jurisprudence, striking down state regulations of interstate activity, is incorrect. Right? Or does Article I Section 8 contain implied limitations of power after all?

4. Your drug policy argument, far from proving the seamlessness of the economy, actually proves the reverse. It is true, we have a national drug policy. But what, exactly, gives Congress the power to override state and local decisions on this issue? Of course, Congress can prohibit the transport of drugs across state lines, and the sale of such drugs downstream, and their manufacture upstream.

But why, exactly, does Congress have to have the power to prohibit the in-state production and use of drugs? The last time I checked, the policy arguments for this are nil. The war on drugs is a huge failure. But worse, it is also a huge loss of individual liberty; not only the liberty to take these drugs and the liberty of communities to make these decisions themselves, but the liberty that is lost through 4th Amendment exceptions and a plethora of federal criminal procedures that impinge on individual liberty and engender a surveillance and prosecutorial state.

Further, just a few generations ago, when alcohol was to be banned, the government banned it by constitutional amendment. That suggests to me that somebody understood that the federal government actually did not have the power to restrict your production of bathtub gin for your own consumption. Yet we are told that if Angel Reich grows and smokes the joint she needs to alleviate her pain and suffering, she is "substantially" affecting interstate commerce.

In other words, before you can ask yourself whether a federal ban on in-state growing of the marijuana medication that patients need to treat their illnesses is necessary to ensure the effectiveness of the federal ban on drugs, you have to examine the assumption that the federal government has any business regulating the in-state production and use of narcotics in the first place. Only by piling questionable assumption on top of questionable assumption do you reach a place where everything constitutes interstate commerce.

(It is worth noting, as well, that states have their own narcotics laws and the edifice of narcotics enforcement is not going to crumble if the federal government is restricted to prosecuting with respect to drugs that travel across state lines. And if any state does decide to legalize drugs, there are very good reasons why such an expermiment should be allowed to proceed, given the utter failure of the war on drugs.)

5. The problem with your quote of Luther Martin, a nonsignatory to the Constitution whose view carries little weight, is that this isn't what the document said. It doesn't say Congress can regulate commerce, period, full stop. It says commerce with foreign nations, among the several states, and with Indian tribes. You have a clear text, and there's no reason to think-- especially since the states that ratified the Constitution clearly believed that they would retain a general police power-- that this meant local activity.

6. Finally, you argue that an interstate/intrastate distinction is unworkable. I don't think this is true in the sense that you can't draw such distinctions. Indeed, even now, such distinctions ARE drawn, all the time, because many federal crimes require the prosecutors to prove that something happened within interstate commerce.

What you seem to really mean is that the distinctions may be messy. And they may be. But many things required by the Constitution are messy. Do you think it is easy to determine what a reasonable search is? Is it easy to determine what due process requires? "Among the several states" is not any more difficult to interpret than a number of other vague terms in the Constitution.

The bottom line is Article I defined a Congress of limited powers, and the 10th Amendment confirms that what is not granted to Congress is reserved to the states. Congress was granted the power to regulate three forms of commerce, not all commerce. Despite your claims, there are still forms of commerce that are not within those three forms; they are not international, they are not interstate, and they are not commerce with Indian tribes. Subsistence farming and growing one's own pot are two examples of such commerce. And there are also strong, overriding policy reasons why the Commerce Clause must not be interpreted to permit congressional regulation of local commerce.

I think I've proven my case.
 

Can you just hear the Chicken Little originalists screaming:

"The Skyscraper is falling! The Skyscraper is falling!"

Thomas Reed Powell was on the ground during the first half of the 20th century that saw waves of constitutional changes take place. A lot happened on the ground that had to be addressed, including laisser faire economics and constitutionalism. Powell was underground during most of the last half of the 20th century that saw still further waves of constitutional changes that have washed over into the current century. Maybe there is an ebb and flow constitutional originalism. It is difficult imagining what the results would have been but for the changes that took place since the beginning of the 20th century. For a more perfect Union suggests that there will be improvements in an effort to achieve perfection. (If the Constitution was perfect, then what are we talking about?) Perhaps 50 years from now constitutionalists will look back at the blogging now taking place on the Constitution (i.e., by us, on the ground via the Internet) and severely criticize us for so not understanding a simple document like the Constitution as it has been amended. One benefit of this may be full employment for the legal profession.

So, is the Skyscraper falling? Are we better off constitutionally than at the beginning of the 20th century? Have the changes been a losing sum game?
 

I think, Dilan, our disagreement is primarily over how ambiguous the Constitution really is; As I've said before, the living constitutionalist experiences ambiguity as empowering, it transforms them into one man constitutional conventions. So, of course, they tend to dramatically overstate it. That's one of the reasons the honest constitutional interpreter must be willing to accept interpretations which are, in their opinion, bad policy: Their opinion is not specially privileged, it means squat. To abandon what the evidence says is the best interpretation of a text because you don't like it is to forget that.

"Thomas Reed Powell was on the ground during the first half of the 20th century that saw waves of constitutional changes take place."

Well, no. Actually, with the exception of some amendments, they were waves of constitutional violation. What he was witnessing was the first of the Constitution's death throws; That's the irony of 'living constitutionalists' mocking what they attack as a "dead" constitution. The Constitution will truly be dead, as the Articles of Confederation are, when it no longer matters. And despite their ironic name, they're working hard towards that end.
 

I referenced "waves of constitutional changes" both during the first half and the second half of the 20th Century. (I used "constitutional" in the sense of describing changes resulting from the application of the Constitution, not in the sense that the "changes" were in compliance with the Constitution.) Brett refers to my reference to the first half as "waves of constitutional violation." Does this apply to ALL SCOTUS decisions or just those during the New Deal? And by not referring to the second half of the 20th century, can we take it that Brett does not consider that SCOTUS decisions during that period did not constitute "waves of constitutional violation"? Keep in mind that we had the Warren Court during the second half of the 20th century with its significant decisions applying the Constitution. I wonder what the results would have been but for the constitutional violations that Brett has in mind.
 

Interesting posts Dilan.

The only problem with using the inapplicabity of the Commerce Clause to drug laws to attack Wickard is that Wickard is more defensible than the drug laws. At least in Wickard the statute at issue certainly contained an intent by Congress to regulate Commerce, since the stated (and only plausible) purpose was to stabilize the price of wheat. That the law also incidently affected intrastate activities is irrelevent, since every regulation of interstate commerce will also affect intrastate activities.

For the drug laws, as you say, the intent is not to regulate commerce, but to regulate consumption. This is very similar to Lopez; the intent was not to regulate the commerce of guns; just their ownership.
 

"That the law also incidently affected intrastate activities is irrelevent, since every regulation of interstate commerce will also affect intrastate activities."

The law in Wickard did not incidentally effect intrastate activities, in some applications, (Particularly the one before the court.) it directly applied to them.
 

brett said...

What he was witnessing was the first of the Constitution's death throws; That's the irony of 'living constitutionalists' mocking what they attack as a "dead" constitution. The Constitution will truly be dead, as the Articles of Confederation are, when it no longer matters. And despite their ironic name, they're working hard towards that end.

Actually, I would suggest that the result is far worse than a "dead Constitution." If the Constitution were dead and ineffective, so would be the court decisions rewriting the document. Unfortunately, the provisions living constitutionalist judges "build onto" the Constitution are very much alive and have the effect of supreme law which overrides our elected branches.

In effect, when you appoint living constitutionalists to the bench, you are installing a judicial dictatorship. Not the faux "dictatorship" of an elected President of the opposite party which Sandy likes to bemoan, but rather an unelected and unaccountable dictatorship whose edicts are the supreme law of the land which cannot be easily reversed by the People.

Living constitutionalism does not kill the Constitution, but rather perverts it into something non-democratic.

I would caution my liberal friends here about embracing this pernicious doctrine. So far, you have viewed living constitutionalism as a beneficent dictatorship because generally only liberals pursue it on the bench and it results in policy which you support.

However, if conservatism goes from libertarian to populist and its judicial appointees decide to join in on "building" the Constitution to their liking, will you like the policies being dictated then?

For example, instead of seeking to reverse Roe and return the issue of abortion to our democracy, a living constitutionalist could instead find a constitutional right to life which bars all abortion.

In a time of war, perhaps conservative living constitutionalists might wish to rewrite the Treason Clause and the First Amendment to make it easier to prosecute those who oppose the war for sedition or treason.

The possibilities for mischief in a dictatorship are unlimited.
 

Bart, that's why I'd like to call the "living" constitution the "undead" constitution, instead. It may be dead, but it's still shambling around, wreaking havok at the command of the voodoo masters.
 

Ah, but Brett and Bart, as you are so fond of pointing out, these judges (like our elected "leaders") can be impeached.

Therefore, by your own logic, as often expressed here, there can be no dictatorship.
 

My repeated point to Sandy is that he's urging a constitutional cure for a cultural disease. Congress has the tools to deal with Bush, they simply don't want to use them. Handing them more tools to refuse to utilize is a fool's game.

Similarly, urging impeachment as a cure for judicial enabling of usurpations by the body that does the impeaching, is futile. It's like urging the bank President who heads up an embezzlement scheme to fire the tellers who implement it for him.
 

Well, I certainly have a lot of points to respond to here.

Let me begin this way: I certainly meet Brett's test for an honest interpreter. I personally voted for the CA law at issue in Raich; I think federal drug policy is a travesty of justice and has harmed our constitutional rights and political culture in ways too many to list. But I believe Raich was correctly decided.

Dilan's arguments seem to move back and forth between originalist and not, so I'm going to address the legitimacy of Wickard and Raich from both perspectives. For me, of course, the originalist view is bunk; it has no legitimacy and I don't care about it in any sense except Prof. Balkin's "text and principle". Keep that in mind when I discuss it.

For me, the legitimacy of Wickard stems from its acceptance by the body politic. In this, it's similar to Madison's position on the Bank. To review briefly, Madison originally (1791) argued that the Bank was unconstitutional. However, after the War of 1812, when the absence of the Bank proved to be extremely harmful to the war effort, President Madison signed the law creating the second bank. He explained why he changed his mind:

“It was in conformity with the view here taken of the respect due to deliberate and reiterated precedent, that the Bank of the United States, though on the original question held [by Madison] to be unconstitutional, received [Madison’s presidential] signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the government. It had been carried into execution through a period of twenty years, with annual legislative recognition ... and with the entire acquiescence of all the local authorities, as well as of the nation at large; to all of which may be added a decreasing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto [by Madison], under these circumstances, [especially after having admitted both] the expediency and ... necessity of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intentions.”

Madison respected the principle of majority rule. He personally thought the Bank was unconstitutional, but the majority of his fellow countrymen obviously disagreed. More significantly, they demonstrated that disagreement by consistently treating the Bank as Constitutional over a long period of time. Madison deferred to that majority – not a temporary one, but one which persisted over a period of 25 years – as settling the question of constitutional interpretation.

This does not, of course, mean that every single law passed by Congress is constitutional. It means that long-standing, widely accepted practice can determine the meaning of indeterminate clauses. Let me try to distill out the relevant factors for evaluating when a national consensus has been reached regarding the meaning of the Constitution:

1. The issue was of notable importance and widely debated nationwide. George Washington once said that “It is on great occasions only and after time has been given for cool and deliberate reflection that the real voice of the people can be known.”
2. Congressional votes on the issue were considered, deliberate, and reasoned.
3. The law was reaffirmed over time (25 years in the case of the Bank) by different majorities.
4. Both the President and the Supreme Court agreed with the law.
5. The law was consistent with the text of the Constitution, the fundamental principles of republican government, and settled practices in related areas.
6. State laws were consistent with it.

I believe the decision in Wickard meets this test. The AAA came in response to a crisis in which public opinion was highly focused on the remedies; Congress passed the bill by a wide margin and the President approved; the SCOTUS agreed; the law violates no principle of republican government (it may violate federalism, but that's different); the agricultural price support system has continued in effect for over 70 years and has received repeated support from Congress of every partisan hue and every President; there's no evidence that these votes somehow violate the public will.*

Both Dilan and Brett want to believe that the phrase "commerce among the several states" has a determinate meaning. It does not. It's no less and no more determinate than "liberty" or "cruel and unusual". I see no reason, assuming the factors I listed above exist, why Madison's view of construction should not prevail. Heck, Madison himself took this position in Federalist 44in his discussion of the necessary and proper clause:

"No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. ... If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate their respective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers."

That hasn't happened, nor is it going to happen any time soon. Instead, Brett and Dilan want the Court now to intervene and overthrow 70 years of widely-accepted public policy. It's rule by Court, not republican government.

*Although my views on this issue are not as strong as they are with drug policy, I do have significant issues with the price support system and would do not agree with many of its provisions on policy grounds.
 

c2h50h said...

Ah, but Brett and Bart, as you are so fond of pointing out, these judges (like our elected "leaders") can be impeached.

Therefore, by your own logic, as often expressed here, there can be no dictatorship.


Ah, but were it only so...

While I have commented on occasion that the impeachment mechanism should be used to remove judges who violate the law through interpretation the same way as if they were taking bribes, that is not the commonly held view.

Thus, there is no check upon a judge appointed for life apart from appeal to other judges or death.
 

That last post got pretty long, so I'm continuing in a second.

My references to Madison in the last post were NOT intended as an argument from originalism. I cited Madison because I agree with his position, and because his position on the Bank reflects what I personally call the doctrine of perpetual sovereignty: that it's We, the People, who get to decide what the indeterminate phrases of the Constitution mean in the long run. Not courts; not some dead guys 225 years ago. Letting the Founders control our destiny like that would be a denial of the fundamental republican principle that the People are sovereign. We, today, get to exercise that sovereignty just like Madison and Jefferson did. And we have done so when it comes to the ICC.

For the sake of argument, though, let's go back and look at the original purpose of the commerce clause. First, some background so that any non-lawyers reading this can follow me.

The law uses a number of principles to help interpret wills, contracts, statutes, and other documents which may be vague or ambiguous. One of these principles involves determining the purpose of the law (or contract, etc.). That is, courts ask “what were the circumstances under which it was made?” and “what problem was it trying to solve?”. When courts do this, they say (using an old-fashioned phrase) that they are seeking the “reason” of the law.

Looking back at the Commerce Clause in order to ascertain its “reason”, remember that I previously quoted Luther Martin saying there was universal agreement that the states were, individually, incompetent to regulate commerce. Even those most opposed to the new Constitution were prepared to give Congress the power to regulate commerce. The reason is simple: during the 1780s, individual states adopted tax policies and other regulations which harmed their sister states. Sometimes they did so deliberately or in retaliation for perceived wrongs. This was a formula for dispute, disruption, and disunion.

The Virginia Plan – that was the working outline used by the Convention which described the purposes of the new Constitution – provided that Congress should have power “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation”. The Convention adopted this resolution on July 17, 1787, and again on July 26 as part of a series of general principles. It then appointed a “committee of detail” to make these resolutions more specific. Massachusetts delegate Nathaniel Gorham, referring to this particular resolution, explained the procedure: “We are now establishing general principles, to be extended hereafter into details which will be precise & explicit.”

The detail committee came back with a list of powers for Congress which appears in Article I, Section 8. That list apparently consisted of all the particular things the committee could think of to which the states were incompetent or which might disturb the harmony of the Union. The power to regulate “interstate commerce” is one of those powers.

If the whole point of the Commerce Clause was to enable Congress to legislate in all cases in which the states, individually, were incompetent, or which might disturb the harmony of the Union, it would make no sense to allow each state to interfere with that regulation as CA attempted to do with the drug laws in Raich or which supposed "individuals" attempted to do in Wickard. In fact, Wickard presents a stronger case because state law was not involved; that was not a case of federalism, that was a case in which one individual didn't want to comply with a law of general application. No government in the world can continue to exist if that is allowed.*

In addition, any attempt to define “interstate commerce” must include those activities which, if Congress didn’t regulate them, might disrupt the harmony of the Union. It’s pretty obvious that that can best be decided in the legislature which represents the nation as a whole. Congress – in the long run, that’s us – pretty much has to be the judge of its power; any other rule would defeat the very reason for the Clause in the first place.

What has changed over the years is not the language of the clause. That's as indeterminate now as it was then, perhaps even less so. Many of the constitutional disputes in the first 50 years arose because of the Commerce Clause, whether the issue was the Bank, ferries, or something else. No, what has changed is the nation itself. The things of this world to which the Constitution applies have changed. The "referents" as Chris would say (though he disagrees with me).

We're not bound by the "referents" of 1788. We need to apply the Constitution today, and we've done so. I contend that what we've done is perfectly consistent with the basic principle the Founders established in 1788, i.e., the "reason" of the Commerce Clause. The economy today is integrated in such a way that national regulation is essential because the states are individually incompetent to the task and because allowing each state to go its own way would disrupt the harmony of the Union. Text and principle.

*Dilan's suggestion to the contrary, the "personal consumption" exception would have gutted the statute. The reason is obvious: there's no way to monitor the product to assure that the consumption stays personal. Once it leaves the farm, it's untraceable. The same is true for marijuana grown for personal use, or, for that matter, for heroin.
 

One final point which I noted in reviewing Dilan's comments. He denigrated Luther Martin as a non-signatory whose views were entitled to little weight. Assuming this is true (it's unfair, for reasons I don't want to explain at the length required), it's precisely Martin's status as a non-signatory and anti-federalist which makes the quote from him compelling. Even the opponents agreed with the basic principle of Congressional regulation of "internal" (Martin's word) commerce. That general agreement makes the principle all the stronger.
 

The authors of the Constitution were perfectly capable of giving Congress the authority to regulate commerce, without any qualifications. They DID qualify that authority. Any interpretation of the Constitution which deprives that qualification of force is inherently illegitimate.

Suppose that the right to trial by jury was adopted because the founders thought it advanced justice, and today we decided that it doesn't... Does that mean that it would be a legitimate 'interpretation' to read the right to trial by jury out of the Constitution, the 7th and 7th amendments' actual text not withstanding?

We have an amendment process, which requires the consent of the states. It is no accident that an expansion of federal power at the expense of the states was accomplished by bypassing that process.

The fundamental disagreement here, I think, is whether to have a written constitution, or a common law constitution. They both have their advantages, but we have the former, and it's simply not legitimate to craft a process of 'interpretation' designed to de facto convert it into the latter.
 

Brett, as is often the case, you're assuming that the Constitutional text is more determinate than it actually is. The phrase "commerce...among the several states" just doesn't have a fixed meaning defined by the world in 1788. It refers to real-world events which change. As those referents change, so does the application of the clause.

For this reason, using examples like "jury trial", which are much more determinate (though not perfectly so, at least according to the Court) doesn't help your argument. There's a real and important distinction between what Prof. Levinson calls the "hard-wired" provisions and those which are, well, softer.

Your reference to "common law" is interesting. In one way you're right and in one way you're wrong. You're right that the Constitutional text puts limits on the construction. I've already agreed with that repeatedly. But the actual application of that text does change through a form of common law construction as I described in my first post this morning. That process, though, by definition remains consistent with the text.
 

Mark, you're assuming that phrase is an empty vessel you can fill with anything you want. But taking a bottle of whiteout to the Constitution, erasing the phrases you don't like, such as "with foreign nations, and among the several states, and with the Indian tribes" is just flat out illegitimate.

That's you ripping out the "hard wires" you don't like.
 

I'm not only NOT making the assumption you claim, I've specifically disclaimed it several times. Just to use your own test, I'm the one arguing for an interpretation which leads to policies I dislike. You, in contrast, are demanding the Constitution be read to accord with your policy preferences.

Actually, I don't think you're being disingenuous here; I think that particular test isn't very helpful. What I do think is that you're unwilling to accept that a phrase which seems clear to you might not seem so to others who read with the same good faith you do. That insistent certitude is perhaps the most disturbing feature of originalism (as, indeed, it is with religious fundamentalists).
 

Mark, you want to claim you're not writing that phrase out of the Constitution, but at the same time, you don't want it to be in any way binding. Maybe you can't see the contradiction, but that doesn't stop it from being there.
 

"I" don't want to do anything at all. I'm willing to let the American people decide this issue. They've done so. I understand that you don't like that outcome, but you have a remedy: "from the people who can, by the election of more faithful representatives, annul the acts of the usurpers."
 

". . . . [W]e need to remember Federalist 37 too: "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.""

We also need to remember these facts about The Federalist:

1. It was written by three (four, actually) out of 40 and more Convention delegates, which delegates agreed on little. In addition, there were three delegates on the opposite end of the spectrum: against ratification of the Constitution. Thus it is the view of a small minority.

2. The Federalist was admittedly an "advertising" "campaign" expressly intended to "sell" the Constitution, therefore is both biased and not entirely straighforward.

3. The Federalist was written and published extra-legislatively, therefore was not then, any more than it is now, law.

In short: The Federalist is given entirely too much weight as concerns interpreting the "intent" of the Framers, and tus the meaning/s of the Constitution.
 

Mark:

I think Brett has you cold. Here's the key. You say:

Both Dilan and Brett want to believe that the phrase "commerce among the several states" has a determinate meaning. It does not. It's no less and no more determinate than "liberty" or "cruel and unusual".

There's two claims here that you are conflating. One is that "commerce among the several states" has an absolute, completely precise, meaning that can never change at all. I don't believe that, and even though he's more strict in his interpretation, I don't read Brett as contending this either.

The second claim is that "commerce among the several states" has any meaning at all, or whether it can reasonably be read as "commerce" with no qualification. It seems to me that "commerce among the several states" cannot mean the same thing as "commerce" unadorned, because otherwise you've written important limiting words out of the Constitution.

2 other points. You say:

If the whole point of the Commerce Clause was to enable Congress to legislate in all cases in which the states, individually, were incompetent, or which might disturb the harmony of the Union, it would make no sense to allow each state to interfere with that regulation as CA attempted to do with the drug laws in Raich or which supposed "individuals" attempted to do in Wickard.

But that's totally wrong. If the Constitution's drafters were simply empowering Congress to act whenever states were incompetent, WNY THE HECK DIDN'T THEY SAY THAT? I would suggest to you that the reason they didn't is because they WANTED the Congress to have limited powers and believed in federalism.

Thus, even though they might have thought to themselves that states might not do certain things well (certainly this was in their minds after the Articles of Confederation turned out to be unworkable), but they also knew they didn't want to give absolute power to the federal government. So, they gave Congress broader powers over economic activity, but not unlimited power. And the problem with Wickard and Raich is it took away the last limits and therefore reneged on the bargain between the states.

Finally, you say:

Dilan's suggestion to the contrary, the "personal consumption" exception would have gutted the statute. The reason is obvious: there's no way to monitor the product to assure that the consumption stays personal. Once it leaves the farm, it's untraceable. The same is true for marijuana grown for personal use, or, for that matter, for heroin.

Mark, that's an amazingly weak point. It's like saying the income tax laws are unenforceable because the government can't verify your income. OF COURSE there's ways to figure out if people are selling stuff rather than consuming it themselves. The government does this all the time now.
 

I think I've identified the actual sticking point here, though it's a ways back in the reasoning chain.

Mark views constitutional 'change' by interpretation as just another way of achieving our common end: That the Constitution conform to the long term, considered desires of the polity. And a more convenient way than formal amendment.

But the formal amendment process is how we determine the long term, considered desires of the polity. Just as formal trials are how we determine if criminals are guilty. Just as you can't just say, "The guilty should be punished, so why bother with trials?" you can't say, "The Constitution should reflect public opinion, so why bother with amendments?"

The problem with that attitude, with vigilante constitutionalism, is that there are large, persistent, and systematic differences between the views of incumbent politicians, (And thus the judges they install.) and the public at large. On all manner of subjects, but most especially on the subject of how much power incumbent politicians should be allowed to exercise.

Vigilante constitutionalism doesn't cause the 'meaning' of the Constitution to track public opinion, it causes it to track incumbent politician opinion, which only resembles public opinion on subjects incumbent politicians as a class have no reason to care about.

Thus vigilante constitutionalism systematically undermines the democratic process by which the public is given a chance to block constitutional 'change' hostile to the public's interests, and in favor of incumbent politicians' interests. It denies us, the public, any real opportunity to rally against constitutional changes we might oppose, presenting us with difficult to undo accomplished 'changes'.

Now, if you didn't recognize that democracy is a very imperfect system for making sure that the people running the system actually share the values of the public, and tends to generate a governing elite with interests systematically different and even opposed to those of the public, you might think the formal amendment process an over complicated waste of time.

Frankly, it shocks me that anybody would fail to recognize this problem, but some people DO have a tendency towards what can only be described as "magical thinking" where democracy is concerned.
 

The second claim is that "commerce among the several states" has any meaning at all, or whether it can reasonably be read as "commerce" with no qualification. It seems to me that "commerce among the several states" cannot mean the same thing as "commerce" unadorned, because otherwise you've written important limiting words out of the Constitution.

Here's the thing: your position amounts to saying that the 300-odd members of Congress who voted for the AAA of 1938; the President who signed the Act; the Supreme Court which upheld the Act; every single Congress since then which has, by majority vote, continued the agricultural price support program; every single President who has signed that and other legislation; and every single Supreme Court from Wickard to Mandeville Island Farms to Raich (65 years or so) has somehow gotten it all wrong. But you and Brett have it right. That strikes me as implausible.

Yes, I agree that the phrase "among the several states" must have some meaning outside of the term "commerce" standing alone. In fact, Congress does recognize this. It makes no attempt to regulate a great many aspects of the modern economy. That's a pragmatic recognition that those businesses don't have any impact on interstate commerce. It's that impact which is the true test.

You and Brett are both missing Madison's most important point in Federalist 44: "No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included."

This means that if Congress has the power to regulate the price of wheat sold by a South Dakota farm to a CA consumer -- and we all agree that it does -- then it also has every power necessary to effectuate that regulation. The American people recognize this and have accepted it. That's what republican government is all about.

If the Constitution's drafters were simply empowering Congress to act whenever states were incompetent, WNY THE HECK DIDN'T THEY SAY THAT? I would suggest to you that the reason they didn't is because they WANTED the Congress to have limited powers and believed in federalism.

As I said, I'm not a fan of originalist arguments. I made one only because you and Brett seem to want one. (I cited Madison for his reasoning, not his authority.) With that caveat in mind, though...

There's documentary evidence as to why the Convention adopted the procedure it did. I quoted Gorham as explaining it. The Convention didn't need to say anything else.

Your suggestion is logically plausible, but there's no actual evidentiary support for it. It's not like the Committee of Detail came back and said, "Guys, we decided to completely undo the procedure and the principles we adopted 10 days ago and write something different instead."

On July 26 the Convention unanimously referred to the Committee of Detail a series of resolutions including the one I quoted. It then adjourned until Aug. 6. When it came back, Art. I contained essentially all the powers now in the final document, including the power "To regulate commerce with foreign nations, and among the several States."

In addition, the quotation from Luther Martin supports my interpretation. Martin specifically referred to the commerce power as one to which the states were severally incompetent. His phrasing thus mirrored the resolution of general principles which I quoted and which Gorham explained. There was no reason for Martin to use that phrasing unless that's what the Convention actually did.

Unless you can provide some actual historical evidence, then abstract reasoning about the clause isn't going to be very persuasive.

And the problem with Wickard and Raich is it took away the last limits and therefore reneged on the bargain between the states.

There never was any bargain between the states. The Constitution was ratified by the people. The states, as states, had nothing to do with it. That's fundamental to republican government -- only the People have the sovereign power to constitute a government.

Again, though, you're saying things with no supporting historical evidence. If you're right, there should be some anti-federalist pamphlet saying words to the effect, "if Congress ever tries to regulate the price of wheat grown for personal consumption, that'll be a breach of the bargain."

OF COURSE there's ways to figure out if people are selling stuff rather than consuming it themselves. The government does this all the time now.

Hardly. If people try to avoid the law, the government has a VERY hard time regulating. Think of marijuana or Prohibition.
 

Brett, our differences are a matter of degree. Going back to Madison and the Bank, he could have taken the position that it was all well and good for the people to interpret the commerce clause to allow for a bank, but they should do so with an amendment. He didn't do that. Instead, he accepted that actual politics could lead to construction of the clause.

The list of factors I gave above summarizes the conditions under which I think such construction can occur. Obviously, we can disagree on when it's a case of giving content to indeterminate language and when it's a case of outright contradiction. There are also some fundamental principles I excepted from this process. But the commerce clause isn't one of those principles, and I (like most Americans) don't see the contradiction between current law and the actual wording of the clause.

I'll leave aside the question whether compliance with Art. V truly permits the long-term interests (what Madison called the "permanent and aggregate interests") of the society to be reflected in the Constitution. Obviously, I don't think Art. V does that.

Now, if you didn't recognize that democracy is a very imperfect system for making sure that the people running the system actually share the values of the public, and tends to generate a governing elite with interests systematically different and even opposed to those of the public, you might think the formal amendment process an over complicated waste of time.

I agree with you about the governing elite, and said so on one of the other threads. I'd support a number of amendments to mitigate that problem which I suspect you'd support too.
 

"I'll leave aside the question whether compliance with Art. V truly permits the long-term interests (what Madison called the "permanent and aggregate interests") of the society to be reflected in the Constitution."

Didn't say it does. Said it enables the public to block the "permanent and aggregate interests" of incumbent politicians from being so reflected. Obviously, since the US constitution has no process for ballot initiatives or proposals, there's no way for the public to achieve amendments directly opposed by the political class.

But stalemate is better than complete defeat at the hands of that class, which is what vigilante constitutionalism gives us.
 

Here's the thing: your position amounts to saying that the 300-odd members of Congress who voted for the AAA of 1938; the President who signed the Act; the Supreme Court which upheld the Act; every single Congress since then which has, by majority vote, continued the agricultural price support program; every single President who has signed that and other legislation; and every single Supreme Court from Wickard to Mandeville Island Farms to Raich (65 years or so) has somehow gotten it all wrong. But you and Brett have it right. That strikes me as implausible.

That's silly. Do you really think the political branches-- who pass overbroad pornography laws, overbroad campaign finance laws, flag burning legislation, intrusions on the Fourth Amendment, etc.-- hew closely to the Constitution?

At best, you can say that the courts upholding these laws indicate that there is some validity to the position. But only some. Our courts, after all, have persisted in many interpretations of the Constitution and of statutes that we would consider wrong-- Plessy, Wolf v. Colorado, The Slaughter-House Cases, Flood v. Kuhn, etc.-- for many years. And given the importance of stare decisis, I don't think you can say that the persistence of a constitutional doctrine is proof of its acceptance.

Yes, I agree that the phrase "among the several states" must have some meaning outside of the term "commerce" standing alone. In fact, Congress does recognize this. It makes no attempt to regulate a great many aspects of the modern economy. That's a pragmatic recognition that those businesses don't have any impact on interstate commerce. It's that impact which is the true test.

That position is only tenable if we overrule Marbury v. Madison and adopt Canada's system where the legislature can overrule constitutional decisions made by the courts. In our system, if the Constitution means something, it is the province of the judiciary to enforce it, except is narrow cases (and the issue of the scope of the commerce power is NOT within the political question doctrine).

This means that if Congress has the power to regulate the price of wheat sold by a South Dakota farm to a CA consumer -- and we all agree that it does -- then it also has every power necessary to effectuate that regulation.

Well, it depends on what you mean by "every power". If it were "necessary" to regulate speech in order to do that, the First Amendment would bar it. If it were "necessary" to pass a bill of attainder to do that, the bill of attainder clause would bar it.

What you are arguing is that even though the words "among the several states" impose a limit on the scope of power granted to Congress in the commerce clause, as you have now concede, nonetheless the necessary and proper clause must override it even though it doesn't override other limits on Congressional power in the Constitution. That is untenable.

Unless you can provide some actual historical evidence, then abstract reasoning about the clause isn't going to be very persuasive.

Mark, there's plenty of historical evidence that the Constitution was intended to expand federal power over what the Articles provided while still preserving some measure of state power. This is constitutional history 101, and I am shocked to see you denying it.

There never was any bargain between the states. The Constitution was ratified by the people. The states, as states, had nothing to do with it.

That may be true as a symbolic claim, but the reality is, the Constitution was a compromise between states that favored a Hamiltonian strong central government and states that favored a more decentralized government. (And slavery, of course, was lurking in the background of a lot of these disputes.) Any interpretation of the Constitution that attempts to write this out of our history is self-evidently incorrect.

Hardly. If people try to avoid the law, the government has a VERY hard time regulating. Think of marijuana or Prohibition.

So you must then be calling for the repeal of our income tax laws (do it in the next 8 days!) because it is impossible for the government to detect if people are selling their goods rather than consuming them.
 

Do you really think the political branches-- who pass overbroad pornography laws, overbroad campaign finance laws, flag burning legislation, intrusions on the Fourth Amendment, etc.-- hew closely to the Constitution?

At best, you can say that the courts upholding these laws indicate that there is some validity to the position. But only some. Our courts, after all, have persisted in many interpretations of the Constitution and of statutes that we would consider wrong-- Plessy, Wolf v. Colorado, The Slaughter-House Cases, Flood v. Kuhn, etc.-- for many years.


I think the political branches pass unconstitutional laws all the time. Much of the time, hopefully, the courts get it right and strike down those laws. Sometimes it takes way too long for that to happen (Plessy).

All this, though, is not very relevant to the commerce clause. I've already listed above the narrow circumstances in which I think that republican construction of indeterminate clauses can take place. The commerce clause meets that test; it's why I've harped on Madison's bank position. Most of your parade of horribles don't meet the test.

I think two other points are significant here. First is that I have, as I said, harped on Madison. The truth is, though, that there are literally hundreds of such examples. Why can Presidents fire officers? Basically because Congress decided they could in 1790. Why do states draw House districts? Because they always have. Why is paper money allowed despite the reference to "coin"? Why does Congress have power to create an air force, buy Louisiana, punish crimes, define the status of territories, or any of hundreds of other subsidiary powers?

None of these came about because we passed amendments, and neither did hundreds of other examples from daily life. In every case it's because Congress took a reasonable approach, the Court approved, and the People agree.

That brings me to my second point. You mention erroneous court decisions, but Wickard began with an act of Congress, signed into law by the President, after substantial public debate. All this is exactly what happened in the case of the Bank and in most of the other examples I've cited.

Well, it depends on what you mean by "every power". If it were "necessary" to regulate speech in order to do that, the First Amendment would bar it. If it were "necessary" to pass a bill of attainder to do that, the bill of attainder clause would bar it.

Agreed that the BoR and other provisions serve as limitations on the necessary and proper clause.

In our system, if the Constitution means something, it is the province of the judiciary to enforce it

Yes, but what I'm saying, and what Prof. Balkin has said, is that the American people are participants in this process. The judiciary does not rule in a vacuum. McCulloch was decided 30 years after the establishment of the first Bank and well after Madison had allowed construction to work. Myers came 137 years after first the Congressional debate about the firing power.

Mark, there's plenty of historical evidence that the Constitution was intended to expand federal power over what the Articles provided while still preserving some measure of state power.

Of course that's true in a nebulous, general sense. That's not very helpful in the face of specific evidence that I've provided with respect to the commerce clause in particular. Regulation of commerce was one of the powers pretty much everybody agreed to transfer to the new government. The fact that the states preserved other powers seems irrelevant to me.

That may be true as a symbolic claim, but the reality is, the Constitution was a compromise between states that favored a Hamiltonian strong central government and states that favored a more decentralized government.

It's much more than a symbolic claim, it's a fundamental principle of republican government. Your claim that there was a bargain between "states" is pre-civil war doctrine that is both factually and theoretically wrong.

Yes, there were people (not states, people) who favored a more decentralized government. But as I've shown above, that general truth has nothing to do with the particular case of the commerce clause.

So you must then be calling for the repeal of our income tax laws (do it in the next 8 days!) because it is impossible for the government to detect if people are selling their goods rather than consuming them.

My point about Prohibition was unclear. I was making an a fortiori argument. If Congress had such a problem enforcing a ban on the sale of liquor despite clear constitutional authority to enact one, imagine how hard it would be to control underground sales of wheat in the absence of such authority. Your income tax example just re-emphasizes my point.
 

"Yes, but what I'm saying, and what Prof. Balkin has said, is that the American people are participants in this process."

But 'amendment' by interpretation is a way of circumventing the American people's participation in the process, by avoiding giving the public a clearly stated change in advance, time to rally against it, and a process where they can apply considerable leverage.

If the public wanted these changes, they could be achieved by amendment. They were acheived elsewise, originally, because FDR and Congress doubted they could persuade the state legislatures, the peoples' agent in the process, to ratify.

By the way I'm curious: Should the states achieve the numbers necessary to secure a Convention, and pass on their own an amendment to Article V, allowing them to bypass Congress entirely, and underscoring that the Constitution can NOT change it's meaning without formal amendment... If they did this, would it even matter to you?
 

Let me be clear about this: We know, from many sources, beyond any reasonable doubt, that the opinions of political elites, (Incumbent politicians, the subculture from which they mostly derive, and the judges they nominate and confirm.) vary systematically and persistently from public opinion. Thus the actions of political elites can NOT be considered a good proxy for public opinion on such issues.

Just as we can't trust judges and prosecutors to decide on their own who's guilty, without a formal process in which the public in the form of jurors is involved, we can't trust federal legislators and judges to decide what constitutional changes are appropriate, without a formal process in which the public has a chance to involve themselves.

A process which requires the change to be made explicit. Which requires it to be announced in advance of it being put into effect. Which permits time for public discussion, and both time and a means for the public to rally against a change they don't like, and to apply effective pressure.

This formal process is Article V. It is the trial for amendments. It is how the public participates.

That the public really participates in 'living' constitutional change is a fiction. It's not even a particularly believable fiction, it's laughably wrong. Living constitutionalism isn't a way in which the public participates in constitutional change, it's a way in which the political elite achieve that change WITHOUT public participation, in order that they can achieve changes the public wouldn't consent to.

It's not just illegitimate, it's wildly so.
 

I think we're nearing the end of this dialogue. Before I get to Brett's points, I want to make explicit something that I've been implicitly saying all along.

IMO, the commerce clause issue is a matter of pragmatism, not principle. By this I mean that some government -- whether national, state, or local -- is going to have the power to regulate commerce. The debate here involves the distribution of that power, i.e., which entity that should be.

The power to regulate commerce comes, as does all power, originally from the people. The various levels of government act as our agents in exercising the power we give them. As between those agents, it makes perfect sense for us to participate in deciding which one of them is the proper repository. That's what I believe the American public has done by its ratification of the extent of Congressional power recognized in Wickard (and reaffirmed in Mandeville Island Farms, Summit Health Ltd., and Raich).

Now to Brett's specific points.

But 'amendment' by interpretation is a way of circumventing the American people's participation in the process, by avoiding giving the public a clearly stated change in advance, time to rally against it, and a process where they can apply considerable leverage.

What we have here is a failure to communicate. I agree with your principle. What I disagree with is your assertion that the modern interpretation of the commerce clause constitutes an amendment. I think it's just a legitimate, though expansive, reading of an indeterminate clause. It's no more faithless to the text than was the Bank Madison accepted on exactly the same grounds.

By the way I'm curious: Should the states achieve the numbers necessary to secure a Convention, and pass on their own an amendment to Article V, allowing them to bypass Congress entirely, and underscoring that the Constitution can NOT change it's meaning without formal amendment... If they did this, would it even matter to you?

Yes, it would matter. Such a clause would be profoundly stupid. "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. …In considering this question, then, we must never forget that it is a Constitution we are expounding.”

I'd accept such a clause as binding, stupid though it would be, but I seriously doubt it would have the effect you want. Meaning is NEVER a fixed and defined "thing" to the extent you seem to believe.

Or maybe that's just a CA lawyer talking who's spent his his whole life practicing under a state Supreme Court which decided Pacific Gas & E. v. G.W. Thomas Drayage.*

We know, from many sources, beyond any reasonable doubt, that the opinions of political elites, (Incumbent politicians, the subculture from which they mostly derive, and the judges they nominate and confirm.) vary systematically and persistently from public opinion. Thus the actions of political elites can NOT be considered a good proxy for public opinion on such issues.

To some extent, you're undermining the whole basis of republican government here. I happen to believe in it.

Look, I agree with you that there are times when elites act in their own interests. I've said so a couple of times. I've even suggested that you and I would probably agree on some amendments which might alleviate this agency problem. But I DON'T think that Congressional regulation of commerce is one of those issues.

As for the rest of your paean to Art. V, I've already said that there's a distinction between construction and amendment. This is not amendment. Moreover, I don't believe Art. V comes remotely close to protecting republican values such as majority rule.

Perhaps we could agree on this: let's amend Art. V to make it more republican, and then we can talk about how often it should get used.

*This is a very inside lawyer joke.
 

Yes, there were people (not states, people) who favored a more decentralized government. But as I've shown above, that general truth has nothing to do with the particular case of the commerce clause.

Of course it does. Under your interpretation of the Commerce Clause, it grants a general police power to the federal government, and reserves nothing to the states.

And yet (1) the statements of the framers about the importance of preserving state power; (2) the clear compromise between free and slaveholding states about how much power to grant the national government; and (3) the express text of the Tenth Amendment, which like "among the states" becomes meaningless under your interpretation, all confirm that the Commerce Clause RESERVED power to the states.

The provision that authorizes Wickard would have had to either say that Congress has the power to regulate commerce, period, or that Congress shall have a general police power. Wickard is not supportable under the Constitution we have, and, while Mr. Filburn's right to consume his own grain is neither here nor there, Ms. Angel Raich lives in pain because a bunch of moralistic politicians from far off places decided to make her medical decisions for her. The framers would have been properly apalled.
 

I think I've dealt with all of Dilan's latest arguments in previous posts, so I'll let him have the final word.
 

That's the question you are begging, though. It seems to me that phrases like "cruel and unusual punishment" and "due process" do suggest that the framers expected succeeding generations to reinterpret the provisions. Other portions of the Constitution are more fixed in meaning.

In some instances, yes, but I do think that in some areas they didn't expect a great deal of reinterpretation. For instance, interstate commerce - I don't think they expected that succeeding generations would have that much difficulty figuring out what interstate meant. Or the now-moribund Contract Clause, which reads, "no State shall... pass any... Law impairing the Obligation of Contracts." I think they'd be very surprised to learn that "no state" has come to mean "no state that lacks a significant and legitimate reason to impair the obligation of contracts," and I don't think that they wrote that language with intentions of future generations reinventing what the word 'no' meant. Who knows, maybe the framers in their infinite wisdom saw this coming, but I doubt it. Of course, the New Deal and Warren Courts aren't the only guilty parties in this respect. On strictly originalist grounds, you could argue the Taney Court was wrong in Charles River Bridge, even though I'm sure we'd all agree that the decision was a very wise one.
 

"Perhaps we could agree on this: let's amend Art. V to make it more republican, and then we can talk about how often it should get used."

Yeah, I can see why you'd want an agreement that Article V gets ignored until it's changed more to your liking, while we go on accepting informal 'amendments' the states are deliberately denied the opportunity to refuse to ratify.

But that isn't the constitution we have, it's the one the courts have crafted to take it's place.

Yes, I do think this discussion has reached it's logical end; Words and logic carry us only so far, they have no force to compel someone who doesn't much care what they actually say.
 

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