Thursday, October 25, 2018

Fixing the Constitution's Implied Powers

John Mikhail

For the Symposium on Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press, 2018).

The Second Creation: Fixing the American Constitution in the Founding Era is a marvelous study of the earliest debates over constitutional language, meaning, and interpretation.  Jonathan Gienapp’s new book is brilliantly conceived, meticulously researched, and masterfully executed.  Like any worthwhile scholarly endeavor, it will generate fresh insights and open up new avenues of inquiry, some of which may eventually call into question some of Gienapp’s own premises and arguments.  In the current academic and political climate, the challenge his book poses to originalism also seems likely to provoke a certain amount of healthy controversy.

The Second Creation is written for multiple audiences.  On the one hand, the book is addressed to historians, political scientists, and other specialists, offering them a dramatic new account of the drafting and ratification of the Constitution, along with four early constitutional controversies: removal, amendments, the bank, and the Jay Treaty.  As his title implies, however, Gienapp also defends a provocative thesis of import for constitutional lawyers and, in particular, constitutional originalists.  In a nutshell, that thesis is that constitutional meaning was not fixed when the Constitution was framed and ratified.  Nor did it operate as a significant constraint on early practice.  The Fixation Thesis and Constraint Principle endorsed by many originalists are, therefore, untenable insofar as they endeavor to be faithful to the best historical understanding of the founding era, or so Gienapp seems to suggest.  A close encounter with that history reveals that constitutional meaning was uncertain, unstable, and “up for grabs” right from the start.  In no small part, this was due to a pervasive uncertainty over what kind of instrument or object the Constitution itself actually was.
For example, the Constitution is written, yes; but is it entirely so?  Is it a contract, a power of attorney, a corporate charter, something else?  To what extent does it presuppose or incorporate principles of common law or the law of nations?  And what is the significance of its most noteworthy omissions?  The Articles of Confederation contains a crucial provision reserving all powers not “expressly delegated” to the states, but the Constitution does not.  Does the Constitution nonetheless presume that whatever is not given is reserved?  Does it presume that whatever is not expressly given is reserved?  What about the document’s very first and most striking sentence—the Preamble?  Does it fall within the scope of the Constitution? 

Finally, and perhaps most significantly, what should one make of the fact that some of the state ratifying conventions adopted the Constitution with a “form of ratification” or other interpretive declaration, explaining how the document should be construed?  When the South Carolina convention adopted the Constitution, for example, it echoed the Articles by declaring that “no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”  Likewise, when the Virginia convention ratified the Constitution, it did so with the stipulation—prepared by a committee that included James Madison, Edmund Randolph, and John Marshall—that “no right of any denomination can be canceled, abridged, restrained, or modified by the Congress . . . by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes.”  As Randolph explained, the purpose of this stipulation was to enable Virginians to consider “every exercise of a power not expressly delegated” by the Constitution to be a violation of it.  Should these eighteenth-century “signing statements” be considered part of the Constitution, or at least part of an essential compromise that enabled it to be ratified?  Why or why not?

As those who have studied the documentary record know, all of these problems, and others like them, permeate the earliest debates over the Constitution.  Unlike narrower semantic questions (the meaning of “commerce” or “emolument,” for example), none of them can be easily reduced to, or replaced by, empirical questions about the original public meaning of the constitutional text.  Rather, these problems take us beyond the text to a challenging interpretive terrain that at least some conventional forms of originalism or “constitutional textualism” do not comfortably reach.  The historical and linguistic inferences one draws on this shaky ground are not only underdetermined, but deeply and pervasively so, in part because the available records are so fragmentary, equivocal, and inconclusive.  Moreover, even when the historical evidence is reasonably clear, it often suggests the founders may simply have disagreed with one another.

Nonetheless, I want to challenge Gienapp’s thesis to some extent by examining the part of his story with which I am most familiar—the earliest congressional debates over implied powers—and offering a somewhat different interpretation of these events than he does, which focuses less on issues of language, meaning, and ontology, and more on the complex interplay of economic interests, regional alignments, and political power.  Despite my admiration for The Second Creation, at the end of the day I think Gienapp may overstate the importance of the former issues and unduly neglect the latter, even if one accepts the methodology and discursive focus he outlines in the Introduction (15-18).  By setting aside the dizzying swirl of semantics for a moment and looking with a practical eye at how members of Congress actually voted on these issues, one can identify some remarkably consistent through lines that render the entire sequence of events, and the talking points of politicians, less inchoate and more intelligible.  As with so much else that occurred at the time, two unifying themes are land and slavery.

A useful starting point is the Philadelphia convention itself, which Gienapp discusses in Chapter One (57-74).  As I read the historical record, after the “Great Compromise” was secured at the convention, by means of which the states were assured equal strength in the Senate, while voting power in the House was based on population (modified by the three-fifths clause), the actual drafting of the Constitution was a process disproportionately controlled by, and most congenial to, a core group of nationalist delegates from Pennsylvania and three other “landless” Mid-Atlantic States: Delaware, Maryland, and New Jersey (along with like-minded delegates from New England).  It is easy to overlook the fact that over half of the framers who signed the Constitution (20 of 39) represented one of these four states.  In fact, just two of these states—Pennsylvania (with eight delegates) and Delaware (with five)—contributed a full third (13/39) of these signatures.  Pennsylvania also supplied the two chief draftsmen of the Constitution, James Wilson and Gouverneur Morris, for the Committees of Detail and of Style, respectively.
Between them, Wilson and Morris were responsible for the precise language of three of the four “dangerous clauses” that Gienapp highlights in Chapter Two (87-95): the Preamble, the Necessary and Proper Clause, and the clause in Article III extending the judicial power of the United States “to all Cases, in Law and Equity, arising under this Constitution….”  The fourth of these clauses, the General Welfare Clause, was added to the Constitution by the Committee on Postponed Parts, chaired by another Mid-Atlantic delegate, David Brearly of New Jersey.  Although we lack records of the committee’s treatment of the General Welfare Clause, there are good reasons to believe it received the support of Brearly and the other Mid-Atlantic delegates, including Morris, John Dickinson (Delaware), and Daniel Carroll (Maryland), along with the three New England delegates: Nicholas Gilman (New Hampshire), Rufus King (Massachusetts), and Roger Sherman (Connecticut).

For the Mid-Atlantic States, at least, the “dangerous clauses” were not dangerous at all, but precisely what they had long wanted in a new charter of government.  As Merrill Jensen pointed out years ago, the critical point to recognize about these states is that their principal land speculators, merchants, and businessmen were situated very differently than their counterparts in Virginia, North Carolina, and other “landed” states in the competition for profitable investments in western lands.  As a result, these men were the driving force during the formative years of the American Republic to recognize implied powers in Congress that could be invoked to assert jurisdiction over these territories.  Many of the delegates to the Philadelphia convention from these states, in fact, had direct or indirect ties to these earlier campaigns, as did many of their most important constituents.  Many of these delegates were also closely affiliated with the Bank of North America, another venture which relied on implied national powers.
In light of this background and the disproportionate control they exerted in Philadelphia, it is not surprising that the Mid-Atlantic States were quite happy with the Constitution, including its nationalism and sweeping implied powers.  Three of these states—Delaware, Pennsylvania, and New Jersey—were among the first to ratify the Constitution, and two of them—Delaware (30-0) and New Jersey (38-0)—did so unanimously.  Although Pennsylvania and Maryland contained active and vocal Anti-Federalists, ratifying conventions in both of these states also adopted the Constitution by decisive margins: two-to-one (46-23) in Pennsylvania and more than five-to-one (63-11) in Maryland.  More significantly, all four of these conventions adopted the Constitution without proposing amendments.  In particular, none of them called for Congress to amend the Constitution by adding a reserved powers clause to the document that would limit the United States to “expressly” delegated powers and reserve all other powers to the states.

Consider now what happened in the First Congress.  When the language that eventually became the Tenth Amendment was taken up and debated in 1789, an event Gienapp recounts in Chapter Four (193-195), these four states voted as a solid block against the proposal to add the word “expressly” to the language of that amendment.  The only recorded vote in the House of Representatives on this motion was 17 in favor, 32 against.  Representatives from the four Mid-Atlantic States supplied half of these negative votes (16 of 32), as compared with only one vote in favor of the motion.  Connecticut—another staunchly Federalist state that ratified the Constitution quickly, decisively, and without amendments—also lined up strongly in favor of preserving the implied national powers vested by the Constitution.  Four of the five Connecticut delegates, including Sherman, voted against the motion, and the fifth did not vote.  All told, then, delegates from the five most strongly Federalist states at the time, all of which had ratified the Constitution without proposing amendments, voted against this “second bite at the apple” to circumscribe implied powers by an astonishing ratio of 20-to-1.  By contrast, the other six delegations then sitting in Congress—New Hampshire, Massachusetts, New York, Virginia, South Carolina, and Georgia—voted in favor of the motion to add “expressly” to the Tenth Amendment by a 4-3 ratio (16 votes in favor, 12 against).  Except for Georgia, conventions in all of these states had voted in favor of amendments specifically designed to curtail implied government powers.

A similar pattern can be gleaned from the controversy over the removal power, which Gienapp discusses in Chapter Three (125-163).  The final vote in the House of Representatives on the bill to establish the Department of Foreign Affairs, which indirectly affirmed a doctrine of implied powers, was 29 in favor, 22 against.  Almost half of the positive votes for the bill (14/29) were cast by representatives from the four Mid-Atlantic States, who collectively supported the measure by a 14-2 margin. By contrast, delegates from the seven remaining states voted against the bill by another 4-3 ratio (20 votes against the bill, 15 in favor).  Thanks to Pennsylvania Senator William Maclay’s Diary, we also have a record of how the Department of Foreign Affairs bill fared in the Senate.  Predictably, Pennsylvania, Delaware, New Jersey, and Maryland formed a solid wall of support for the bill and its affirmation of implied powers, voting in favor of the bill, 7-1 (the only dissenting voice being Maclay himself).  By contrast, the four senators from South Carolina and Georgia (Butler, Izard, Few, and Gunn) voted against the bill, as did both senators from Virginia (Grayson and Lee).  Finally, the six New England senators were divided, 3-3.  (As Gienapp notes, the 10-10 tie was broken in favor of the bill by Vice-President John Adams.)

Consider finally the contest over the Bank of the United States, which Gienapp vividly describes in Chapter Five (202-247).  Arguably the most important point to comprehend about this famous controversy is that the final vote on the bank bill in the House (39-20) was lopsided and almost entirely sectional.  In the eight northern states (which included Delaware at the time), the vote in favor of the bill was 34-1.  Once again, Pennsylvania, Delaware, and New Jersey led the way, voting unanimously in favor of the bill; but, in this case, so did the delegations from New Hampshire, Connecticut, Rhode Island, and New York.  The lone northern holdout was Jonathan Grout of Massachusetts, a consistent Anti-Federalist, who also voted against the final bill to establish the Department of Foreign Affairs and in favor of adding “expressly” to the Tenth Amendment.  By contrast, 19 of the 20 votes against the bank bill were cast by delegates from the five southern states.  Led by Madison, the Virginia delegation was unanimously opposed to the bank, as was the Georgia delegation.  Four of the South Carolina members and three of the North Carolina members also voted against the bill.  Notably, Maryland supplied two of the only five southern votes in favor of the bill, including that of Joshua Seney, a consistent supporter of implied powers, who also voted in favor of the bill to establish the Department of Foreign Affairs and against adding “expressly” to the Tenth Amendment.

What lessons should one draw from all of these observations?  I suggest that when one looks closely at the three controversies presented in Chapters 3-5 of The Second Creation, a striking pattern emerges, one that is less variable or fluctuating than one might be led to assume after reading these chapters and the book as a whole.  A large group of delegates, representing primarily, but not exclusively, the four Mid-Atlantic States, formed a relatively stable “implied powers faction” in the First Congress.  This faction voted in favor of the final bill to establish the Department of Foreign Affairs, against adding “expressly” to the Tenth Amendment, and in favor of the bank bill.  Twenty-one of the 59 members of the House who were seated in 1789 fall under this description, fourteen of whom represented Pennsylvania, Delaware, New Jersey, or Maryland.  Other core members of this highly nationalist group included such implied powers stalwarts as Fisher Ames, Benjamin Goodhue, and Theodore Sedgwick of Massachusetts; Jonathan Trumbell of Connecticut; and Egbert Benson, John Laurance, and Peter Sylvester of New York.
On the other side of the divide, a second group of delegates, representing primarily, but not exclusively, Virginia and the Deep South, formed what might be called an “enumerated powers faction” in the First Congress.  With only a few exceptions, this faction voted in direct opposition to the implied powers group.  Fifteen members of this faction, all but two of which represented states that had adopted the Constitution with proposed amendments limiting implied powers, voted against the bill establishing the Department of Foreign Affairs and in favor of adding “expressly” to the Tenth Amendment.  When it came to the bank, six of the seven northern members of this faction defected, but those who remained were joined by an even larger influx of southern delegates, resulting in the sharply divided sectional vote to which I referred.

Why did 19 of 20 votes against the bank come from below the Mason-Dixon Line?  Why did Madison’s proposed amendments include a new preamble and four new references to private property rights?  And why did representatives from South Carolina and Georgia, whose conventions had adopted the Constitution by overwhelming margins and whose political leadership was generally “Federalist” at the time, almost invariably support efforts to curtail or eliminate implied powers in the First Congress, whether the topic was removal, amendments, or the bank?  The likely answer to all these questions—and others like them—involves slavery, a topic to which Gienapp devotes surprisingly little attention in The Second Creation.  Although William Laughton Smith, for example, often takes center stage in his narrative, there is only a passing reference to the illuminating August 1789 letter Smith sent to Edward Rutledge, explaining that his position on removal and amendments grew out of his concerns over slavery.  Nor, more importantly, does Gienapp discuss the explosive 1790 slavery petitions, which also generated interesting and transformative legislative debates over the scope of implied federal powers, in which the two factions I have identified again played leading roles.
This seems to me to be the book’s biggest shortcoming, or at least a missed opportunity.  In light of the enormously high stakes, implicating approximately 30 percent of all Southern wealth, the effort to fix or “liquidate” implied powers over slavery and thereby establish a “federal consensus” on that subject was arguably the main event—and one of Madison’s primary objectives—all along.  The story Gienapp tells in The Second Creation is already so rich, stimulating, and well-crafted that it seems unfair to criticize him for not adding yet another chapter to the mix, or for not combining his focus on language with a more interest-based perspective, such as the one I have sketched here.  Every scholar has to make choices, after all, and working through Madison’s complicated political rhetoric and actual positions on slavery alone, not to mention those of other founders, in light of the various interests at stake seems like a daunting task.

This “missing” chapter on slavery—and others, too, involving assumption, the neutrality controversy, state suability, and more—is nevertheless an important reminder that “Reimagining the Creation of the American Constitution” is an unfinished and generative process in which all of us can profitably engage.  We are in Gienapp’s debt for revitalizing this topic, showing us how it can be pursued with great skill and sensitivity, and pointing the way forward.  This outstanding book has undoubtedly changed the landscape, and everyone interested in constitutional law would benefit from engaging with it.

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