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
My revised contribution to a forthcoming symposium issue of the Virginia Law Review on Jurisprudence and (Its) History is now available here. An earlier version that was posted to the VLR website and highlighted on several blogs contained some errors, which have now been corrected.
Charles Barzun and Dan Priel organized this terrific symposium, which was held last September in Charlottesville and brought together a number of prominent historians, philosophers, and legal scholars. The main focus of my contribution is the constitutional significance of the distinction between entailment and implicature – a distinction that often gets neglected in commentaries on the “original meaning” of the Constitution and the proper scope of implied federal powers. Drawing on both this distinction and the theory of corporations, the article seeks to lay the groundwork for a new understanding of the federal government's implied power to promote the general welfare.
Here is the abstract:
The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including Wilson, Hamilton, Marshall, and the two Roosevelts, and which rests on an implied power to promote the general welfare. To pursue this objective, the Article relies on two strange bedfellows: the law of corporations and the philosopher Paul Grice. An ordinary language philosopher like Grice, who writes about truth-functional connectives, bald French kings, and the like, might seem like an unlikely ally to enlist in this endeavor. As this Article seeks to demonstrate, however, underestimating the significance of Grice’s ideas for constitutional law would be a mistake. Plausibly interpreted, the Constitution vests an implied power in the Government of the United States to promote the general welfare, and Grice’s distinction between semantic and pragmatic implication is a helpful means of understanding why. After a general introduction, the Article first summarizes some key aspects of Grice’s philosophy of language and then briefly illustrates their relevance for constitutional law. The remainder of the Article is then devoted to explaining how, along with a relatively simple principle in the law of corporations, according to which a legal corporation is implicitly vested with the power to fulfill its purposes, Grice’s distinction between semantic and pragmatic implication helps to illuminate a thorny problem of enduring interest: What powers does the Constitution vest in the Government of the United States?
And here are a few excerpts from the article, which builds upon my previous work on the origins of the Necessary and Proper Clause (see, e.g., here, here and here):
….For most Americans, disillusionment with their democracy is rooted in far more practical concerns than the historical topics that occupied Beard and his critics. On many pressing social issues—economic inequality, immigration reform, gun violence, child welfare, climate change, campaign finance, and so on—they observe their national government to be highly dysfunctional, often little more than an elaborate stage for political theater and corruption. Increasingly, influential legal commentators, such as Sanford Levinson and Michael Seidman, place a large part of the blame on the Constitution. I am far from a blind admirer of the Constitution, and I tend to agree with many of the objections that have been leveled against it by critics such as Levinson and Seidman. At the same time, it has often seemed to me that the Constitution is a much better document than it is given credit for—and certainly much better than what our politicians and courts have typically made of it. Reasonably construed, the Constitution protects fundamental human rights and vests the government of the United States with all the legitimate authority it needs to provide for the common defense, promote the general welfare, and fulfill the other ends for which that government was established. Surprisingly enough, these simple ideas are sometimes considered radical or outside the mainstream—“off-the-wall,” in Jack Balkin’s sense —and they are at variance with the prevailing jurisprudence of the U.S. Supreme Court, which tends to be remarkably stingy about both human rights and national powers to promote the general welfare. They also are at odds with many hornbook treatments of constitutional law. Nevertheless, these simple propositions appear to reflect the core convictions of some of the greatest statesmen and constitutional theorists in American history, including Benjamin Franklin, Alexander Hamilton, John Marshall, Abraham Lincoln, Theodore Roosevelt, and Franklin Delano Roosevelt, among others. They also correspond to the original design of the Constitution as it was conceived by its principal draftsmen, or so the weight of the historical evidence seems to indicate….
....For our purposes, Grice’s most important idea was the conceptual distinction he drew between two forms of implication: entailment and implicature. The former is sometimes called a “genuinely semantic” implication, whereas the latter is sometimes described as “merely pragmatic.” These labels are potentially misleading, partly because drawing a clear line between semantics and pragmatics is not always easy. Nor, for that matter, is locating the boundary between semantics and syntax. For our limited aims, it is unnecessary to take a position on these or other theoretical problems in linguistics and the philosophy of language. Instead, all that is required is to grasp the basic distinction Grice drew between entailment (semantic implication) and implicature (pragmatic implication) and to consider how it applies to the problem of implied federal powers....
....For these and similar reasons, one might question whether Grice’s philosophy of language has anything important to teach us about how to interpret the Constitution. Yet further reflection suggests that any such conclusion may be overdrawn. In the first place, it seems important to recognize that Grice’s model is not an all-or-nothing affair. Even if some of his maxims must be qualified or abandoned in a given context, it does not follow that all of them are inapt or inapplicable in that setting. Grice himself reasons along these lines when he notes that the maxims of Quality, which relate to veracity and evidentiary warrant, may have a special stringency and stand on a different footing than the other maxims, whereas the maxims of Manner “as a generator of implicature seem to be somewhat open to question.” Of particular interest, he also points out that the maxims of Quantity and Relation may be mutually interdependent. “To judge whether I have been undersupplied or oversupplied with information,” Grice observes, “seems to require that I should be aware of the identity of the topic to which the information in question is supposed to relate; only after the identification of a focus of relevance can such an assessment be made . . . .” This statement sounds very much like the interpretive principle underlying one of John Marshall’s most famous remarks in McCulloch v. Maryland—“[W]e must never forget, that it is a constitution we are expounding” —which also concerns how to interpret a potential undersupply or oversupply of information in light of the topic to which that information relates.
Grice’s maxims will often yield results that are identical or closely analogous to the results of well-established canons of legal interpretation, such as ejusdem generis, expressio unius, and the rule against surplusage. Drawing upon a technical framework to explicate the precise norms that underlie these canons can therefore be quite illuminating. Likewise, Grice’s distinctions among what a sentence means, what a speaker says, and what a speaker means appear to reflect genuine conceptual categories, which can be fruitfully applied to constitutions and other legal instruments, as well as to ordinary uses of language. Significantly for our purposes, the same is true of the distinction between entailment and implicature. The Constitution is shot through with implications, only some of which are entailments. Carefully distinguishing the one from the other can be useful for many reasons—including getting clear on the fact that what is commonly referred to as the “original meaning” of the Constitution frequently turns on constitutional implicatures, rather than “what is said” or “what is entailed” by constitutional provisions....
....With this background in mind, let us return to the specific problem I highlighted earlier: What powers are vested by the Constitution in the government of the United States? For at least three reasons, it seems reasonable to expect a simple and straightforward answer to this question. First, it has become a virtual axiom of American political theory that the United States is “a government of limited and enumerated powers.” If the powers of government are enumerated, then it ought to be possible to enumerate them. Second, one of the cornerstones of American federalism, the Tenth Amendment, also seems to require a clear answer to our question. The Tenth Amendment declares that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” To understand what powers are reserved by this amendment, one first needs to know what powers are delegated. Third, the Constitution itself refers to “powers vested by this Constitution in the Government of the United States” in another important provision: the Necessary and Proper Clause. To comprehend the language of this clause, one needs to grasp the meaning of its constituents—one of which is the very phrase that interests us. For all of these reasons, then, one might naturally assume that it should be easy to provide a clear and convincing answer to the question with which we began: What powers are vested by the Constitution in the government of the United States?
Here is where the problems begin, and where sensitivity to the lessons Grice and other philosophers of language have taught us reveals that what may look simple on the surface is actually rather complicated. The question presented is not what powers the Constitution vests in Congress, but what powers it vests in the government of the United States. That these are different semantic categories follows from Grice’s cooperative maxims, as well as from any number of considerations. The “stile” or official name of the federal government, which appears on the face of its laws, contracts, and treaties, is “The United States of America.” Legally speaking, this government is a corporation, an artificial juridical person endowed by its creators with various capacities, including the ability to endure in perpetual succession. By common acknowledgement and established practice, the United States also has the power to sue and be sued; to enter into contracts; to fulfill its contractual obligations; to acquire, sell, hold, and lease property; to operate under a common seal; and a host of other unenumerated powers that are incidental to every corporation, unless they are explicitly denied or abridged by its constitution or articles of incorporation.
Likewise, the United States has the power to recognize foreign governments, to control the flow of persons across its borders, to establish its own paper currency as legal tender, and a wide range of other capacities that are incidental to every sovereign nation. By contrast, the Congress of the United States is not itself a sovereign nation or independent legal corporation, and it does not obviously possess any of these powers or capacities in its own right. Congress is a department of the government of the United States, and it, too, is vested with certain powers by the Constitution, including, of course, the enumerated powers of Article I, Section 8. All of these enumerated powers, and indeed every power vested in Congress or the other departments or officers of the United States, are also powers vested by the Constitution in the government of the United States. But the reverse is not true: All of the powers vested by the Constitution in the government of the United States are not also powers vested in the departments or officers of the United States. And Congress is assuredly not the same thing as the government of the United States. Nor, for that matter, is the Executive Department, the Judicial Department, the President, or the President and two-thirds of the Senate. The epigram to Moore’s Principia Ethica comes to mind here, and is directly on point. “Everything is what it is, and not another thing.”
The Constitution itself requires us to draw a distinction between the powers it vests in Congress or other departments or officers of the United States, on the one hand, and the powers it vests in the government of the United States, on the other. It does so in a particularly noteworthy provision: the Necessary and Proper Clause. Like the opening words of the Preamble, “We the People,” this clause was first incorporated into the Constitution by Wilson, one of the Founding generation’s most sophisticated lawyers and political theorists, and perhaps its most outspoken champion of implied national powers. Contrary to a popular misconception, the three most significant words Wilson used in drafting this clause were not “necessary and proper,” but “and all other”—a common formula by which “sweeping clauses” perform their essential function of canceling the implication that a given list of items is exhaustive. As many astute observers recognized at the time, Wilson’s sweeping clause is exceedingly complex, not only because it cancels the inference that Congress’s other Article I powers are exhaustive, but also because it implicitly differentiates no fewer than six distinct sets of powers vested by the Constitution in the Government of the United States, only some elements of which are clearly specified. Because of this complexity, teasing apart the various powers given and reserved by the Constitution is no easy task—a feature of the document that Wilson and other Federalists often exploited during the campaign to ratify the Constitution, and that was not lost on its most perceptive critics....
….When one examines the full text of the Necessary and Proper Clause in its original context, it seems clear that one of its intended functions was to give Congress the instrumental power to carry into effect its own enumerated powers, while a second objective was to cancel the implication that these enumerated powers were exhaustive. The clause Wilson drafted did more than this, however. Just this much could have been achieved by means of a more targeted sweeping clause, which referred only to “all other powers” vested in Congress. For example, Wilson could have achieved both of these objectives using the following language:
and to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Legislature of the United States.
Because he understood that Congress would need to carry into effect the powers vested in other parts of the federal government, Wilson also could have drafted a broader “all other powers” provision, which encompassed all of the government’s other departments and officers:
and to make all laws that 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.
Likewise, if Wilson had wanted to reinforce the notion that all of the powers delegated to the government of the United States are assigned to one or more of its departments or officers, he might have omitted the second provision entirely and drafted the full clause in this manner:
and to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in any Department or Officer of the United States.
And of course there are many other possibilities.
Each of the three foregoing examples is a genuine alternative to the Sweeping Clause that Wilson could have drafted, but did not. Moreover, each has its own unique set of implications, which appealed to various individuals and political constituencies at the time. Alternative #1 is identical in relevant respects to a provision Pierce Butler of South Carolina drafted and may have proposed to the other delegates in late August, in an apparent effort to curtail the broad reach of Wilson’s Sweeping Clause:
Butler: "And to make all Laws, not repugnant to this Constitution that may be necessary for carrying into execution the foregoing powers and such other powers as may be vested by this Constitution in the Legislature of the United States" (Farrand, Supplement at 231; emphasis added).
Alternative #2 is identical to the abridged version of the Necessary and Proper Clause that appeared in the original version of Madison’s Federalist No. 44, which Madison only corrected thirty years later, when the Gideon edition of The Federalist was published in 1818:
Publius: “The sixth and last class [of powers lodged in the general government] consists of the several powers and provisions by which efficacy is given to all the rest. ‘Of these the first is the 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.’” (Cooke edition at 302; see also id. at 632, listing the missing clause Madison supplied in 1818 -- "Or in any department or office [sic] thereof").
By paraphrasing the Sweeping Clause in this manner, Madison managed to convey the impression, or at least the possibility, that all of the “other powers” vested in the Government of the United States to which the clause refers are delegated to one or more of its departments or officers.
Finally, Alternative #3 tracks in relevant respects the precise meaning of the Sweeping Clause that was presupposed, and thus reinforced, by the reserved powers clauses that were offered as constitutional amendments by three of the most anti-Federalist state ratifying conventions: Virginia, New York, and North Carolina:
Virginia: “That each state in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Foederal [sic] Government.” (Cogan, The Complete Bill of Rights, at 675; emphasis added).
New York: “[T]hat every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same . . . .” (id. at 674; emphasis added).
North Carolina: “That each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.” (id. at 675, emphasis added).
More importantly, Alternative #3 also tracks the meaning of the Sweeping Clause that was implied and reinforced by the original language of what became the Tenth Amendment that Madison proposed to Congress on June 8, 1789:
Madison: “The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed . . . . The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.” (id. at 663; emphasis added).
Because all these proposed amendments refer exclusively to the powers vested in Congress or the other departments and officers of the United States, they leave no room for any additional powers vested by the Constitution in the government of the United States itself. Thus, all of these proposed amendments, including Madison’s, would have deprived Wilson and the nationalists of the significant victory they had achieved when the more comprehensive language of the Constitution was adopted and ratified.
Madison’s apparent effort to limit the scope of implied national powers in this manner has been overlooked by historians, who tend to accept uncritically the public assurances Madison gave at the time that his proposed amendments were intended to leave the powers of government untouched. Madison’s apparent effort was defeated when his prefatory language, stating that all of the powers granted by the Constitution “are appropriated to the departments to which they are respectively distributed,” was first revised in such a way as to negate its intended implications, and then was struck altogether.
Later, two delegates from Connecticut, Roger Sherman in the House and Oliver Ellsworth in the Senate, each apparently inserted “to the Government of the United States” and “to the United States,” respectively, after “delegated by this Constitution” in the text of Madison’s original proposal. Sherman and Ellsworth thus reinforced the parallel with the precise language of the Necessary and Proper Clause, which refers to other powers vested in the government of the United States, in addition to those powers vested in its departments or officers. By doing so, they probably sought to ensure that none of the implied or incidental powers vested by the Constitution in the government of the United States would be curtailed or abridged by the Tenth Amendment….