Tuesday, July 02, 2019

Lessig's Defensive Crouch Constitutionalism

John Mikhail

For the symposium on Lawrence Lessig, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019).

Fidelity & Constraint is a deeply interesting and insightful book.  I recommend it to anyone who is interested in the theory and history of American constitutional law.  In this post, I will focus on one thread of Professor Lessig’s rich narrative—his account of the New Deal revolution—and explain why I find it unconvincing.

Lessig identifies himself as “a nationalist, not a federalist,” on the question of government power (432; see also 440, 443-44).  Like Bruce Ackerman, he seeks to justify the New Deal era decisions that transformed American constitutional law and created a new baseline that has been (mostly) stable ever since.  Ackerman claims that this transformation involved unwritten amendments, but Lessig is not persuaded by Ackerman’s account, and his own two-part theory of fidelity—fidelity to meaning and fidelity to role—is meant to fill this gap.  Critically, however, Lessig appears to share Ackerman’s premise that the New Deal revolution cannot be justified with reference to the original meaning of the Constitution.  Accordingly, while Lessig insists that “the Constitution was not amended” during the New Deal, he also maintains that “fidelity to role forced the Court to suppress the Constitution’s actual or proper meaning.” (431)

From a nationalist perspective, Lessig’s account of the New Deal revolution strikes me as too defensive.  To borrow a phrase from Mark Tushnet, his theory can be viewed as a type of defensive crouch constitutionalism. Particularly in light of new constitutional storms on the horizon (see, e.g., here), it seems worthwhile to ask whether this is the best a “nationalist egalitarian” (444) can do. 

This is a large topic—too big to discuss adequately in a blog post—but let me chip away at one piece of the edifice by commenting briefly on two cases, Hammer v. Dagenhart and United States v. Darby, which are central to both Lessig’s and Ackerman’s accounts of what happened between 1937 and 1942, and by using them to illustrate my larger point about defensive crouch constitutionalism.

In Hammer, the Supreme Court struck down federal child labor legislation, thereby reserving the regulation of employment and production to the states. Although he does not quite say so explicitly, Lessig appears to think that the Court was justified in doing so in originalist terms.  While describing Hammer as “extreme” and “the most aggressive” illustration of “two-step originalism” in the history of the Court’s commerce clause jurisprudence, Lessig nonetheless maintains that “the case can also be understood as an act of fidelity if we view it as an instance of translation.”  Elaborating on this theme, Lessig explains that John Marshall’s interpretation of the commerce clause in Gibbons “had yielded a constitutional meaning that conflicted with the meaning intended by the Framers.  The Court couldn’t change that constitutional text.  But it could adopt techniques for reading that text differently—translations.  Those translations are justified to the extent they restore an original meaning.  To the extent one believes the Framers intended the Constitution to protect extensive and exclusive state authority, Hammer is a translation.” (84-85)

If Hammer is faithful to original meaning, then what does that imply for Darby, which overruled Hammer in upholding minimum wage and maximum hours provisions of the 1938 Fair Labor Standards Act?  Lessig does not discuss Darby extensively, but he appears to think it cannot be squared with the original Constitution.   Thus, he writes that, in the Jones & Laughlin Steel Co., Darby, and Wickard trilogy, any plausible attempt at translating the commerce clause “to preserve an alleged original meaning—by crafting limits on the otherwise expansive federal authority—had been forfeited.” Instead, the Court “gave to Congress a breadth of power that would authorize it to regulate far beyond the limits that (at least the conservatives believed) the Framers had intended.  Fidelity to the meaning of this original constitutional commitment had been surrendered.” (140)

Lessig’s hedge—“at least the conservatives believed”—creates some uncertainty about what he ultimately thinks of Darby, as does his similar qualification (“To the extent one believes…”) when discussing Hammer.  The most natural reading of the passages I have quoted, however, implies that Lessig thinks Hammer was a faithful translation of the original Constitution, whereas Darby was not.  

If this is correct, then I want to suggest that Lessig is selling the New Deal short.  Darby is more faithful to the original Constitution than Hammer.  To be sure, Hammer is more faithful to a persistent mythology about the Constitution, which Darby upended.  But fidelity to mythology and fidelity to history are, of course, two different things.  The former should not enter into the kind of reflective equilibrium (or, in Lessig’s preferred terms, the blend of fit and justification) we should be seeking in constitutional theory.  

Why is Darby more faithful to the original Constitution than Hammer?  There are many problems with Hammer, but perhaps the most significant of them can be boiled down to a single passage from Justice Day’s majority opinion, which Justice Stone later corrected in Darby.  In striking down the child labor prohibition, Justice Day wrote:
“In interpreting the Constitution it must never be forgotten that the Nation is made up of States to which are entrusted the powers of local government.  And to them and to the people powers not expressly delegated to the National Government are reserved.  The power of the States to regulate their purely internal affairs by such laws as seem wise to the local authority is inherent and has never been surrendered to the general government.” (247 U.S. at 275, emphasis added)

Justice Day’s insertion of the word “expressly” in his paraphrase of the Tenth Amendment was an egregious case of constitutional infidelity.  On three occasions in 1789, Congress considered adding the word “expressly” to the future Tenth Amendment.  The clear motivation for this proposal was to cut back on the national government’s implied powers.  On each occasion, the motion to add “expressly” failed.  The only recorded vote indicates that it was opposed in the House by a nearly 2-1 margin (32-17).  Like the Framers themselves, then, the Federalists who were then in charge of the new government wanted implied national powers.  They were not about to let this rearguard “states rights” action succeed. 

Justice Day ignored this history in Hammer.  He hardly could have been unaware of it or the crucial difference between “delegated” and “expressly delegated” powers, since Marshall had emphasized the omission of “expressly” in the Tenth Amendment in McCulloch —a case Day quoted shortly before adding “expressly” back into his reading of that amendment.  What the Princeton scholar Alpheus Thomas Mason later wrote about the Court’s dismal performance in Hammer, therefore, seems entirely justified:  “The very word that the Congress had deliberately refused to insert, became, for all practical purposes, the law of the land.  By judicial fiat, certain subject matters -- manufacturing, agriculture and employer-employee relations -- were put beyond the reach of national authority.”  (Mason, The States Rights Debate, p. 193)

Consider now what happened in Darby.  The most famous passage in Justice Stone’s unanimous opinion declares that the Tenth Amendment “states but a truism that all is retained which has not been surrendered.”  Stone’s next sentence is less memorable, but critically important in the present context:

“There is nothing in the history of its adoption to suggest that [the Tenth Amendment] was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.  See, e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, §§ 1907-1908.”  312 U.S. at 124.

Few people bother to examine Stone’s references, but they make clear that Stone was not “amending” the Constitution (Ackerman) or “suppressing its original or proper meaning” (Lessig) in Darby.  Instead, he was restoring the original meaning of the Constitution by correcting the Court’s overreach in Hammer.  Stone’s pin cites to Elliot’s Debates recall discussions in the Massachusetts, Virginia, and North Carolina ratifying conventions on whether to amend the Constitution by reserving, to the states, all powers not “expressly delegated” to the United States.  His references to Annals of Congress point to Madison’s June 8, 1789, speech in the House of Representatives proposing constitutional amendments; successive motions by Thomas Tucker and Elbridge Gerry to add “expressly” to one of Madison’s proposals (so it would read: “the powers not expressly delegated by the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people”); and, most significantly, the recorded vote on August 21 to which I have referred, in which Gerry’s motion was soundly defeated.  (The Senate voted down a third attempt to add the word “expressly” to the future Tenth Amendment on September 7.)  Finally, Stone’s citations to Story’s Commentaries refer to Story’s own account of these events and their import for interpreting the Constitution. 

In his discussion of the Tenth Amendment in §§ 1907-1908, Story wrote:

“When this amendment was before congress, a proposition was moved, to insert the word ‘expressly’ before ‘delegated,’ so as to read ‘the powers not expressly delegated to the United States by the constitution,’ &c. On that occasion it was remarked, that it is impossible to confine a government to the exercise of express powers.  There must necessarily be admitted powers by implication, unless the Constitution descended to the most minute details.  It is a general principle that all corporate bodies possess all powers incident to a corporate capacity, without being absolutely expressed. The motion was accordingly negatived.  Indeed, one of the great defects of the confederation was, as we have seen, that it contained a clause, prohibiting the exercise of any power, jurisdiction, or right, not expressly delegated. The consequence was, that congress were crippled at every step of their progress….” (§1907, emphasis original)

“It is plain, therefore, that it could not have been the intention of the framers of this amendment to give it effect, as an abridgment of any of the powers granted under the constitution, whether they are express or implied, direct or incidental. Its sole design is to exclude any interpretation, by which other powers should be assumed beyond those, which are granted. All that are granted in the original instrument, whether express or implied, whether direct or incidental, are left in their original state. All powers not delegated, (not all powers not expressly delegated,) and not prohibited, are reserved. The attempts, then, which have been made from time to time, to force upon this language an abridging, or restrictive influence, are utterly unfounded in any just rules of interpreting the words, or the sense of the instrument. Stripped of the ingenious disguises, in which they are clothed, they are neither more nor less, than attempts to foist into the text the word "expressly;" to qualify, what is general, and obscure, what is clear, and defined….” (§1908, emphasis original)

Story’s account of these matters is lucid, accurate, and convincing.  Stone knew this, and his confident appeal to these passages in Darby calls into question Lessig’s assumption that the post-1937 Court was less faithful to the original meaning of the Constitution than the Old Court it replaced.  In this case, at least, fidelity to original meaning runs the other way.

I am not persuaded, therefore, by Lessig’s thesis that the New Deal revolution “reflects a fidelity to something beyond meaning.” (431)  At times, Lessig seems drawn to treating the 1937-1942 developments as mere “error correction” (437-39).  Yet, if I understand him correctly, his two-part theory of fidelity is ultimately premised on rejecting that interpretation.  In a similar vein, Lessig writes: “As a nationalist, I am sorry that we don’t have a clearer nationalist Constitution.” (440)  But his own interpretations of Article I and cases like Gibbons and McCulloch needlessly undercut a nationalist reading of the Constitution.  In his chapter on federalism, for example, Lessig makes the common mistake of assuming that Article I’s reference to all powers “herein granted” entails that Congress has “just those powers specified in the Constitution.”  (75, emphasis added)  He also places undue weight on what Richard Primus calls “The Gibbons fallacy.” (75)  Finally, Lessig’s claim that Marshall was not faithful to the original meaning of “necessary and proper” in McCulloch (36-43) is also untenable (see, e.g., here and here) and concedes far more to the opponents of a nationalist Constitution than is, well, necessary and proper.

Despite my enthusiasm for Fidelity & Constraint, then, Lessig’s creative rethinking of the New Deal revolution seems unnecessarily weak and defensive.  Particularly in light of the current Supreme Court, a better approach might be to abandon this kind of defensive crouch in favor of a renewed engagement with the original Constitution, which is more nationalist than Lessig and other commentators generally assume.  Doing so could eventually have transformative effects of its own and highlight important links that might otherwise go unnoticed. 

In Shelby County v. Holder, for example, the Court struck down Section 4(b) of the Voting Rights Act on federalism grounds, holding that Congress lacked power to reenact that provision in 2006, when it extended its coverage formula for another twenty-five years.  Writing for a narrow 5-4 majority, Chief Justice Roberts explained his theory of federalism in a Hammer-like manner:

“Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives. Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10.” 570 U.S. at __ (emphasis added). 

Justices Stone and Story—and John Marshall, for that matter—would not have let this remarkable distortion of the original Constitution go unchallenged.  Neither should we.  See, e.g., Darby, 312 U.S. at 124; McCulloch, 17 U.S. at 406-07.

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