an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Theodore Roosevelt on the Federal Government's "unenumerated problem-solving powers"
The joint dissent written by Justices Scalia, Kennedy, Thomas, and Alito in the health care cases makes for interesting reading. One noteworthy feature is the joint dissent's response to Justice Ginsburg’s reference to Resolution VI of the Virginia Plan, an amended version of which gave Congress the authority to legislate “in all Cases for the General Interests of the Union, and also in those Cases to which the States are separately incompetent.”
In an important section of her opinion joined by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg suggests that Congress’s Article I powers were meant to encompass this broad grant of authority, including the implied power to address whatever national problems the states are incapable or unwilling to address on their own; in short, to solve collective action problems. Seeking to stamp out this heresy, Justices Scalia, Kennedy, Thomas, and Alito write:
"[Justice Ginsburg's opinion] treats the Constitution as though it is an enumeration of those problems that the Federal Government can address—among which, it finds, is 'the Nation’s course in the economic and social welfare realm,' and more specifically 'the problem of the uninsured.' The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national-problem power."
Later, Justice Scalia and his colleagues underscore the point, referring dismissively to “the Federal Government’s unenumerated problem-solving powers.”
Are the joint dissenters correct? A few reasons for doubt below the fold:
The idea that the United States would be legally incapable of solving difficult problems affecting the entire nation because the appropriate means were not enumerated in the Constitution would come as a surprise to many of the Framers. The sharpest legal minds in the founding generation – James Wilson, Alexander Hamilton, John Marshall, and others—understood or clearly expressed at various points in time that the Constitution was a corporate charter, which had been carefully framed in such a way as to ensure that the federal government, like any well-designed corporation, would possess all the express and implied powers it needed to adapt to unforeseeable circumstances and to fulfill the broad purposes for which it was established. In this respect, the three most critical provisions were the Preamble, the Sweeping Clause, and the Supremacy Clause—all of which Wilson took the lead in drafting, putting in place doctrines that he and his nationalist allies had forcefully advocated from 1776 onward.
These historical propositions are debatable, of course, and they cannot be adequately defended in one or more blog posts. Nonetheless, I believe that with proper explanations and qualifications they are defensible and worthy of serious consideration. In a forthcoming article, parts of which I previewed on this blog last summer (see here, here, and here) and which I presented to the Originalism Works-in-Progress Conference at the University of San Diego in February, I examine these issues in detail and discuss some of the relevant evidence.
Here I wish merely to observe that the notion of an implied power to promote the general welfare or fulfill other legitimate ends of the Constitution has not always seemed as far-fetched or outside the mainstream as the joint dissenters in NFIB would have us infer. Even if one ignores the substantial body of evidence from the founding era or famous Marshall Court opinions, it is easy to find examples in U.S. history of major political and legal figures who have embraced this common sense idea.
Consider two illustrations:
1. In his majority opinion in the Legal Tender Cases, a decision which itself calls into question some of the more extreme assertions by Justice Scalia and his colleagues in NFIB, Justice Strong affirmed the existence of unenumerated powers and explained at length why they are unavoidable and clearly implied by the words of the Constitution. See generally Knox v. Lee, 79 U.S. 457, 533-35. Justice Strong wrote: “It is impossible to know what those non-enumerated powers are, and what is their nature and extent, without considering the purposes they were intended to subserve. Those purposes…reach beyond the mere execution of all powers definitely entrusted to Congress and mentioned in detail. They embrace the execution of all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.” Id. at 533. See also id. at 535 ("Congress has often exercised, without question, powers that are not expressly given or ancillary to any single enumerated power").
In his concurring opinion in Knox, Justice Bradley elaborated on the same theme:
"The Constitution of the United States established a government, and not a league, compact, or partnership. It was constituted by the people. It is called a government. In the eighth section of Article I, it is declared that Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof. As a government it was invested with all the attributes of sovereignty...."
"The United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality….It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike and which require uniformity of regulations and laws…. "
"Such being the character of the general government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such and as being essential to the exercise of its functions…." Id. at 554-56 (emphasis original)
2. Perhaps more significantly, consider the following excerpt of an address (“Legislative Actions and Judicial Decisions”) given by President Theodore Roosevelt on Oct. 4, 1906, at the dedication of the new State Capitol Building in Harrisburg, Pennsylvania. President Roosevelt embraced a conception of national power strikingly similar in certain respects to the one defended by Justice Ginsburg in NFIB and espoused by Wilson and other Framers throughout the founding era. Does the federal government possess unenumerated national-problem-solving powers? Here is what the man chiseled on Mount Rushmore had to say in 1906, remarks that in some respects appear even more germane today:
"I cannot do better than to base my theory of governmental action upon the words and deeds of one of Pennsylvania’s greatest sons, Justice James Wilson . . . . He believed in the people with the faith of Abraham Lincoln; and coupled with this faith in the people he had what most of the men who in this generation believed in the people did not have; that is, the courage to recognize the fact that faith in the people amounted to nothing unless the representatives of the people assembled together in the National Government were given full and complete power to work on behalf of the people. He developed even before Marshall the doctrine (absolutely essential not merely to the efficiency but to the existence of this nation) that an inherent power rested in the nation, outside of the enumerated powers conferred on it by the Constitution, in all cases where the object involved was beyond the power of the several States and was a power ordinarily exercised by sovereign nations."
"In a remarkable letter in which he advocated setting forth in early and clear fashion the powers of the National Government, he laid down the proposition that it should be made clear that there were neither vacancies nor interferences between the limits of State and national jurisdiction, and that both jurisdictions together composed only one uniform and comprehensive system of government and laws; that is, whenever the State cannot act, because the need to be met is not one of merely a single locality, then the National Government, representing all the people, should have complete power to act. It was in the spirit of Wilson that Washington, and Washington’s lieutenant, Hamilton, acted; and it was in the same spirit that Marshall construed the law."
"It is only by acting in this spirit that national judges, legislators, and executives can give a satisfactory solution off the question of the present day—the question of providing on behalf of the sovereign people the means which will enable the people in effective form to assert their sovereignty over the immense corporations of the day. Certain judicial decisions have done just what Wilson feared; they have, as a matter of fact, left vacancies, left blanks between the limits of possible State jurisdiction and the limits of actual national jurisdiction over the control of the great business corporations. It is the narrow construction of the powers of the National Government which in our democracy has proved the chief means of limiting the national power to cut out abuses, and which is now the chief bulwark of those great moneyed interests which oppose and dread any attempt to place them under efficient governmental control."
"Many legislative actions and many judicial decisions which I am confident time will show to have been erroneous and a damage to the country would have been avoided if our legislators and jurists had approached the matter of enacting and construing the laws of the land in the spirit of your great Pennsylvanian, James Wilson—in the spirit of Marshall and of Washington. Such decisions put us at a great disadvantage in the battle for industrial order as against the present industrial chaos. If we interpret the Constitution in narrow instead of broad fashion, if we forsake the principles of Washington, Marshall, Wilson, and Hamilton, we as a people will render ourselves impotent to deal with any abuses which may be committed by the men who have accumulated the enormous fortunes of to-day, and who use these fortunes in still vaster corporate form in business."
"The legislative or judicial actions and decisions of which I complain, be it remembered, do not really leave to the States power to deal with corporate wealth in business. Actual experience has shown that the States are wholly powerless to deal with this subject; and any action or decision that deprives the nation of the power to deal with it, simply results in leaving the corporations absolutely free to work without any effective supervision whatever; and such a course is fraught with untold danger to the future of our whole system of government, and, indeed, to our whole civilization…." (Vol. 18, Works of Theodore Roosevelt, p. 82-85)
Quite appropriately, President Roosevelt goes on in his remarks to warn against “any effort to excite hostility to men of wealth as such” and “any demagogic legislation about the business use of this wealth . . . couched either in a vindictive spirit of hatred toward men of wealth or else drawn with the recklessness of impracticable visionaries.” Nonetheless, he insists that “it is our clear duty” to ensure “in the interest of the people” that corporate power is adequately supervised and directed toward the common good.
“Only the nation can do this work,” he concludes. “To relegate it to the States is a farce, and is simply another way of saying that it shall not be done at all.”
Food for thought on Independence Day….
UPDATE: In order to guard against possible misunderstanding, I have made a few revisions to my original post, including limiting my discussion of the founders to Wilson, Hamilton, and Marshall. Posted
by John Mikhail [link]