Tuesday, May 20, 2008

Text, Principle, and Living Constitutionalism


In response to Steve's very interesting post about living constitutionalism and the New Deal, let me offer a few points that may help resolve some problems he has about how easy it is to reconcile my method of text and principle with the living constitutionalism that arises from the New Deal.

The first point is that Mitch Berman, Ronald Dworkin and Akhil Amar have convinced me, in their various ways, that principles underlying the constitutional text, as constitutional constructions, do not have to "have a pedigree in historical evidence from the time of the adoption of the text." That is, as long as original (semantic) meaning is preserved, new principles may be associated with the Constitution over time if they are constructions that the text can bear.

The reason is simple: Arguments from structural principles may invoke principles that become clear only after the government has been in operation for some time. Structural principles may be derived from original expectations about the way the Constitution would work, but they also stem from the way the Constitution actually does work in practice over the years. If we said that new principles (which are constitutional constructions) can never be recognized, we couldn't explain much of our current practices of structural argument. These principles have to be consistent with the original meaning of the text, but they do not have to have been intended by anyone at the time the text was adopted.

Of course, there are many principles that we do derive from the history of the adoption of the constitutional text. I have argued that these principles must be stated at the same level of generality as the text itself; this means that they are also likely to be indeterminate and require further implementation through constitutional construction (which will require invoking sub principles and sub sub principles). In particular, that means that we do not have to apply the class legislation principle underlying the Fourteenth Amendment in the same way that people in 1868 would have applied it. The same is true with the principles underlying the Due Process Clause.

Steve is worried that, based on the expectations of people living in 1868, much redistributive legislation passed during the New Deal might be unconstitutional because it violates Reconstruction era conceptions of police powers and the boundaries of permissible state regulation. But central to my theory is the claim that we are not bound by the original expected application. Some redistributive programs-- in fact, many such programs-- could be viewed today as having a bona fide public purpose and thus not class legislation, even if people in 1868 would have regarded them as clearly beyond the scope of the police power. As Akhil Amar and Mike Curtis have pointed out, once you adopt the Sixteenth Amendment, which presupposes the power of the federal government to engage in progressive income taxation, you need to rethink what the class legislation principle means in the modern administrative and welfare state. Class legislation comes to be more about stigmatizing or subordinating government practices and less about adjustments of contract and property rights in the public interest. The application of the Fourteenth Amendment and its principles can change in light of changing circumstances, although the meaning of the terms in the text does not change.

Third, you can make a similar point about changes in the scope of federal power that arose with the New Deal. Steve worries that the text of the commerce power (and other clauses) is not capacious enough to justify the modern administrative state. I disagree, and so did Roosevelt himself. The basic principles underlying the commerce power, and indeed, the entire set of enumerated powers in Article I, section 8, were well stated by James Wilson in the Pennsylvania ratifying convention in November of 1787: "Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States."

Wilson, in turn was simply restating the content of Resolution VI at the Philadelphia Convention, adopted on July 16, 1787, which stated the basic principle that Congress should have the power "to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the U. States may be interrupted by the exercise of individual Legislation." This general statement of purpose was converted by the Committee of Detail into the enumerated powers of Congress listed in Article I, section 8, including the commerce power. The scope of each of these enumerated powers, including the commerce power, may and should be read in light of those purposes.

So stated, it becomes clear why Roosevelt could say in his public speeches that he didn't think that an amendment was necessary to justify the New Deal, and why nothing he sought was inconsistent with the text of the Constitution. As he put it in his September 17, 1937 Constitution Day address, "You will find no justification in any of the language of the Constitution for delay in the reforms which the mass of the American people now demand," and that "nearly every attempt to meet those demands for social and economic betterment has been jeopardized or actually forbidden by those who have sought to read into the Constitution language which the framers refused to write into the Constitution."

The central question of federal power during the New Deal was whether new forms of legislation were now within Congress's enumerated powers because of changed understandings about the nature of the economy and social life. These changes in economic and social life changed expectations about what sorts of problems, in Wilson's words, "extend[ed], in [their] operation or effects, beyond the bounds of a particular state," or, in the words of the Philadelphia Convention, what kinds of problems had become those in which Congress might reasonably conclude that "the States are separately incompetent" to address. The New Deal was premised on the idea that the United States had become a fully integrated national economy with governance problems that routinely had spillover effects that individual states could not adequately manage by themselves. These were problems for which a comprehensive federal solution was necessary.

The second claim made by New Dealers was that courts should defer to the reasonable judgment of Congress and the President (through administrative agencies) about when a national solution was necessary to deal with a problem for which the states "were separately incompetent," or when a problem of governance "extend[ed], in its operation or effects, beyond the bounds of a particular state." This was a claim of judicial deference in questions of economic and social legislation. Again, there is nothing in the original meaning of the text that forbids either construction, although, of course, one might prefer different constructions that would produce a much reduced federal power. Indeed, before the New Deal, people did construe the Constitution this way. But, as before, fidelity to original meaning does not bind us to these prior constructions, including the original expected application.

In sum, Steve's concerns about whether the method of text and principle can handle the forms of living constitutionalism that came with the New Deal seem to me overstated. The theory can handle these changes. The real issue, it seems to me, is that the realm of possible constructions consistent with original meaning is very large, and most of the controversy in constitutional adjudication involves choosing one set of implementing constructions over another. This process of choosing successive constructions to deal with changing circumstances is the real work of living constitutionalism; as I have detailed in a previous series of posts, (One, Two, Three, Four, Five, Six , and Seven) why particular constructions get adopted at particular points in time is due to a complicated process of interaction between courts and the political branches.


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It is curious that an opponent of original intended application such as yourself would be quoting a single ratifier of the Constitution - James Wilson - to make your point. In fact, Mr. Wilson's view of governance (and that of FDR) - that the federal government may exercise any power not granted to the States - is contrary to Article I, Section 1 of the Constitution which states:

All legislative powers herein granted shall be vested in a Congress of the United States...

The Constitution intentionally limited the federal government to enumerated powers. This is a base principle arising from the plain text of the Constitution which I would think that your principles arising from the text theory of interpretation should recognize.

The New Dealers were looking for ways to escape the limitations of the Constitution and not to enforce them. Thus, their views are hardly those of impartial observers of the Constitution.

The New Dealers could not change the meaning of the text of the Constitution simply because they had a different idea of how government should run than did the Founders. If this was the case, FDR could also have found pesky things like elections to be a relic of a bygone era and declare himself a dictator. Somehow, I doubt Sandy would think this to be a good idea.

Nor could the New Dealers simply command the courts to ignore the text of the Constitution and defer to their idea of how government should operate. Indeed, each Justice of the Supreme Court swears an oath to "I will faithfully and impartially discharge and perform all the duties incumbent upon me as [a Justice of the Supreme Court] under the Constitution and laws of the United States.''

Professor Griffin is correct that any theory of interpretation which is faithful to the explicit structure limiting the Congress to enumerated powers and the text of those enumerated powers cannot justify much of the New Deal. The courts which eventually signed off on the New Deal violated their oaths and engaged in blatant living constitutionalism.

JB --
I have to take exception to your proposition that Resolution VI was morphed into enumerated powers by the Committee on Detail.

After the Great Compromise provided for one house to be allocated equally among states, the degree of democracy in the Constitution was seriously reduced (and is the 1000 pound elephant given today's bi-coastal population). Thereafter, Madison moved from supporting a federal government of general powers and the right to "negative" state enactments to a federal government of enumerated powers with a legally enforceable supremacy clause. This was done on the convention floor, after consideration by the committee on unresolved issues, not in the committee on detail.

I had always considered it somewhat ironic that the Federalist Society was so named, because its federalism agenda was really anti-federalist. However, I think it necessary to recognize three strains of anti- and pro-federalist sentiment -- a Patrick Henry strain of anti-federalists that believed that the best government was local, who became states' righters during the Jackson era and secessionists thereafter; a Hamilton/Adams strain of federalists, who had monarchical pro-British tendencies; and a Madison/Jefferson strain of federalists who saw the country as a trans-continental democracy. So the snobby U.Va. "Mr. Jefferson" types atacheded the federalist moniker to their localist vision of the republic.

Bart: "It is curious that an opponent of original intended application such as yourself would be quoting a single ratifier of the Constitution - James Wilson - to make your point."

That doesn't seem fair. Original expected application is obviously important evidence of original meaning. It's just defeasible evidence.

Original expected application is obviously important evidence of original meaning.

In this particular case, Prof. Balkin's example is much more than "mere" original expected application. Wilson was paraphrasing a resolution adopted by the Convention on July 17, 1787, and then again on July 26, that the national government was to have power "to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the U. States may be interrupted by the exercise of individual Legislation." Cite.

Wilson was explaining the principle which the Commerce Clause was intended to effect. Text and principle.


The text of the Constitution and the principle of enumerated powers is contrary to this individual ratifier's idea of the scope of federal power. If anything, the use of Mr. Wilson demonstrates the hazards of attempting to ascertain the original intent of the parties to the Constitution by cherry picking individual commentary.

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