Balkinization: Are We Returning to the Articles of Confederation?

Comments:

Not quite but various things, including interstate compacts, does suggest why we have a Constitution in the first place. I also would welcome a good book on the Articles of Confederation, including a discussion of the few years that the country lived under it. I read, e.g., a book on the Confederate Constitution [which has various interesting components] but have never found a full length book on the AOC as such. A year or two ago, a history professor did say she was writing a book on the subject.

# posted by

Joe : 12:33 PM

I fail to see how states should "declare bankruptcy", even putting aside the fact that the bankruptcy law doesn't provide for that. As long as they have taxing power, and the citizens have money, the state can't be "bankrupt" in the sense of lacking assets.* They could, of course, have cash flow problems but those can be solved with a little time.

Some states in the 19th C did default on bonds, but most of them paid off the bonds eventually.

*I seriously doubt any state has debts higher than total private and public assets.

# posted by

Mark Field : 12:38 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 12:44 PM

Joe, an interesting book on the Articles era is Peace Pact by David Hendrickson.

# posted by

Mark Field : 12:45 PM

The issue of whether the states or the national government would have more power pervaded almost all of the Framers’ debates.

The difference between the governments the Articles and the Constitution created is the difference between a confederation and a federation of sovereign states. We have never had a unitary government. The later Constitution granted the national government a limited list of plenary powers.

Since at least the 1930s, when President Franklin Delano Roosevelt developed New Deal programs to lift the country out of the Great Depression, the national government has taken the lead in resolving problems that affect the entire country.

Most of the New Deal was a facial violation of the Constitution.

Some presidents might encourage Congress to pass laws that would be consistent across America. Examples would be uniform requirements for closing schools or sheltering in place. President Trump, however, has left such decisions up to governors.

Properly so. Public health is one of the residuary powers granted the states. In this matter, Congress's powers are pretty much limited to spending and border controls. Trump's powers are pretty much limited to border controls and ensuring the states do not violate our constitutional rights in dealing with the epidemic pursuant to various civil rights laws enacted by Congress.

# posted by

Bart DePalma : 12:49 PM

Thanks. Looking, it seems to only address it in part of the book, but will try to check it out. Seems like a full length volume just on the AOC is warranted.

# posted by

Joe : 12:52 PM

Agreed. Peace Pact is about the time period, not the Articles per se. I don't have a good suggestion for just the Articles.

# posted by

Mark Field : 1:02 PM

"Most of the New Deal was a facial violation of the a-textual Constitution imagined by ostensible libertarian extremists, not the actual Constitution as written."

Fixed that for our Bircher.

# posted by

Mista Whiskas : 1:35 PM

I fail to see how states should "declare bankruptcy", even putting aside the fact that the bankruptcy law doesn't provide for that. As long as they have taxing power, and the citizens have money, the state can't be "bankrupt" in the sense of lacking assets.*

Presumably Congress could come up with some definition of insolvency.

Of course McConnell's comment wasn't serious. He has nobody in the Senate working on any such bill. He just said it because he needed something to say against the obvious point that he's starving the states for political purposes.

# posted by

Dilan : 2:00 PM

Most of the New Deal was a facial violation of the Constitution.

This is laughable, even given Bart's beliefs.

"Most" of the New Deal? Well, let's see:

The National Recovery Act was unconstitutional. It was declared so in Schechter Poultry, which is still good law today.

If you want to argue Wickard was wrongly decided and the Agricultural Adjustment Act's production quotas were unconstitutional, that's a respectable position, so I will give you that one.

But what else?

The WPA and TVA? Pretty clearly constitutional under both the Post Roads power and the Spending power.

The CCC? Constitutional under the spending power.

Social Security? Constitutional under the taxation and spending powers.

Bank Holiday? MAYBE unconstitutional under a very libertarian interpretation of the commerce clause as to local banks, but not as to federally chartered banks or banks with out of state depositors.

Wagner Act? Again, if you want to say it was unconstitutional as to local unions that don't cross state lines, OK, you can say that under a very libertarian interpretation. And, of course, SCOTUS has flirted with holding the union shop unconstitutional. But designation of a collective bargaining unit, the center of the act? Certainly constitutional as to any union that crosses state lines, right?

Aid to Dependent Children? Spending clause, right?

I don't see how even Bart's worldview can get you to "most of the new deal was constitutional".

# posted by

Dilan : 2:07 PM

# posted by

Brett : 2:21 PM

Dilan: But what else?

Indeed.

Name the provision of the Constitution which grants Congress the power to enact each of the major provisions of the New Deal and to delegate legislative and judicial power to the bureaucracy.

Please do not cite the power to regulate the trade of goods and services between the states.

# posted by

Bart DePalma : 2:28 PM

Brett:

So what's unconstitutional? Is Social Security inconsistent to what you consider to be Madison's view? Was the WPA, which built roads (specifically mentioned in Article I) which crossed borders and carried interstate commerce? Was the TVPA, which damned up interstate rivers and provided electricity to the interstate markets?

Which is the program that spent money unconstitutionally?

Bart:

Similar question. Which parts of the New Deal do you believe unconstitutionally delegated power to administrative agencies (besides the NRA, which was actually struck down)? You think Social Security is unconstitutional because tribunals decide disability inquiries? You think the NLRB is unconstitutional because it made rules and decisions reviewable in court?

# posted by

Dilan : 2:46 PM

The Spending clause is doing a lot of the work there, I notice. Taking a very Hamiltonian view of the meaning? I take a more Madisonian view, that the money can only be spent to effectuate the enumerated powers, and the reference to "general welfare" is actually, like the N&P clause, a restriction, not empowering, limiting the expenditure to purposes aiming at benefiting the whole country.

The two primary writers of the Federalist Papers are contrasted here on a basic matter of constitutional meaning. Perhaps, the best way to determine something that split two basic framers/founders as a general matter is the political process.

The New Deal is not just a matter of the spending power at any rate and we would then debate the Commerce Clause and other matters. For instance, Edwards v. California is a basic decision from that era and was written with a New Deal mindset. It ultimately raised not only Commerce Clause matters but (as noted by the concurrence) things like the right to travel and so forth.

Anyway, even by the terms, what does "effectuate the enumerated powers" means? Madison himself referenced the Necessary and Proper Clause. President Madison himself eventually recognized the constitutionality of a national bank, recognizing long precedent (then much less long than the time between the 1930s and now) on the point.

And, the New Deal "benefits the whole country." Take Helvering v. Davis, a 7-2 ruling, e.g., regarding Social Security.

And, yes, to some degree "necessary and proper" is a limitation. What this gets you is unclear. If Congress passed a tax that targeted Catholics, e.g., it would not be "proper." The determination there is greatly a political question. I think, e.g., the majority in U.S. v. Lopez might have been correct. Even with room for debate the idea the Constitution died in the 1930s is far from clear there.

# posted by

Joe : 2:50 PM

In my view, naturally, the Constitution came alive in the 1930s. Before that it was just the dead hand of slaveholders and bigots.

# posted by

Mark Field : 3:26 PM

In addition to what Joe says, one of the reasons why we ended up where we are on "commerce" and "necessary and proper"- and I think that ultimately the court did end up being overdeferential, with Gonzales v. Raich being a perfect example- is because the earlier tests didn't work.

I think Hammer v. Dagenhart is the perfect example of this. The Court attaches itself to the distinction between manufacturing and commerce, which comes from the E.C. Knight case and probably had its most famous application in the Federal League case, where baseball was declared not to constitute interstate commerce.

But that distinction: (1) makes no sense as an interpretation of the Commerce Clause and (2) is impossible to apply in practice. It makes no sense because why, other than the say-so of the Court, does regulation of a factory that produces items to sell in all the states not constitute interstate commerce?

For instance, if in Hammer, instead of child labor, the regulation had been a requirement that a factory use a certain process because it results in a safer or more reliable product? What if it had been an FDA regulation prohibiting impurities in the drug manufacture process or regulating who can be on the factory floor while drugs are produced? Those are all clearly regulations of interstate commerce, because while the regulation may occur in the factory, it is meant to affect what can be sold across state lines.

Further, a factory participates in interstate commerce on both the input and output ends. It doesn't just manufacture goods that are then sold in interstate commerce, but also buys raw materials that were produced in interstate commerce. And some of the workers might even cross state lines to go to work or deposit their paychecks into another state's bank. There's plenty of "interstate commerce" going on in a large factory, which makes it impossible to describe the manufacture of goods as going on in one place.

And for much the same reasons, the Hammer test was impossible to actually apply. There was no line that could actually be drawn based on people's conduct that made it intrastate rather than interstate- there was just the feeling of the justices that manufacturing was somehow different than commerce.

Honestly, I've seen quite a lot of libertarian commentary on the evils of the modern commerce clause, but very little intellectual legwork on what exactly the limits should be. It's easy enough to criticize Wickard and Raich- heck, I do that!- but you need to develop something that courts can apply that draws a workable line. One reason Lopez and Morrison and Printz have all survived as limitations on the commerce power is that they all present reasonably workable tests. It's easy enough to, for instance, require Congress to include a real jurisdictional hook in its criminal statutes, or to require Congress to utilize federal resources rather than purporting to compel states and their employees to implement federal law. Those are all bright lines.

I can draw bright lines that could result in Wickard and Reich being overturned- no regulation of the production of goods that are consumed on your own property. That doesn't reach the interstate market, so there's no jurisdictional hook. But I can't see how you get back to the 18th Century Commerce Clause in the 21st Century economy. And it isn't enough to say it is wrong. Because if you can't come up with a workable test, Joe is right- it's a political question.

# posted by

Dilan : 3:28 PM

In my view, naturally, the Constitution came alive in the 1930s. Before that it was just the dead hand of slaveholders and bigots.

It still is, to a large extent. Sandy's basic thought- that we have an awful Constitution and we pump it up as better than it is for the same reason that homer sports fans root for their team- is preciesly correct.

But, it had its moments even before the 1930's. Gitlow v. New York is a pretty good decision. So is McCulloch v. Maryland. Buchanan v. Warley. Pierce v. Society of Sisters.

And the Roosevelt SCOTUS, like other Supreme Courts, had plenty of awful decisions too. Minersville School District, Quirin, Korematsu, etc.

# posted by

Dilan : 3:32 PM

(To be clear on Gitlow, Gitlow was a decent decision because it started the incorporation ball rolling. It isn't clear that the tracts at issue met the clear and present danger test, and of course under modern precedent it wouldn't have constituted incitement.)

# posted by

Dilan : 3:37 PM

In my view, naturally, the Constitution came alive in the 1930s. Before that it was just the dead hand of slaveholders and bigots.

The hills were alive with the sound of music then too.

Anyway, that's a tad exaggerated though, yes, significant parts of it came alive later. As Prof. Nourse argues in "A Tale of Two Lochners," etc., the pre-New Deal Court allowed the government wide room & in the process constitutional government rightly was allowed to go on, including a range of congressional acts in the 19th and early twentieth centuries.

The Marshall Court had its moment. Heck, even the Taney Court wasn't all bad.

# posted by

Joe : 4:41 PM

"The Taney Court wasn't all bad" is completely true, but good luck arguing that one at a cocktail party (if we ever have those again).

# posted by

Dilan : 5:33 PM

I'm in my 60's, but I've never actually attended a "cocktail party", unless being underfoot as a toddler counts. But let me know if you're ever in the Greenville area, and you can try some of my homebrew mead.

I'm assuming travel will eventually start up again, we're not just going to decline into some kind of post apocalyptic scenario.

# posted by

Brett : 8:40 PM

Could be both: travel like The Road Warrior.

# posted by

Mark Field : 8:48 PM

Perhaps, defending the Taney Court works better at mead parties.

# posted by

Joe : 9:26 PM

Dilan:

Before we go through the numerous acts of the New Deal, let's deal with commonly offered sources of power.

The Commerce Clause was expressly limited to regulating (disciplining) the trade of goods between states and internationally. It provides no power to Congress over the creation of such goods and services.

The Tax and Spending Clause was viewed two ways by the Founders, both of which are viable textually: (1) as a means to find the exercise of enumerated powers and (2) to provide general public goods - everyone pays and everyone has access to use. No one read the TSC as a license for the government to take from A and give to B.

The Necessary and Proper Clause is expressly limited to legislation necessary to exexercise enumerated powers.

The opening clauses of each article creating the Congress, POTUS and court expressly grant all legislative power to Congress, executive to the POTUS and judicial to the courts. No exceptions.

Now the New Deal programs:

National Industrial Recovery Act (1933): Created National Recovery Administration (NRA). Legalized industry collaboration for price controls and collective bargaining for labor.
Agricultural Adjustment Act (1933, Reauthorized 1938) Introduced measures to reduce crop supply, stabilize prices and support farm incomes.
Farm Credit Act (1933) Oversight of all farm credit programs & refinancing of farm mortgages.
Bankhead-Jones Farm Tenant Act (1937) Provided aid to tenant farmers and sharecroppers
Home Owners’ Loan Act (1933) Provided financial assistance to home owners and the mortgage industry.
National Housing Act (1934) Created the Federal Housing Administration (FHA) to guarantee mortgages with banks
Created the Federal Savings & Loan Insurance Corporation
Fascist corporatism and corporate welfare without a basis in the Constitution and whose delegation violates the separation of powers.

Income and Wealth Taxes (1934-1941): Greater emphasis on progressive taxation and taxation on wealth; consistent revenue increases achieved. Progressive taxes have no basis in the Constitution and violate the principle of equal protection

Emergency Banking Relief Act (1933) Gave the president emergency powers over the US banking system, under which he called a ‘bank holiday’ to allow evaluation of all banks and closure of insolvent ones.
Socialism with no basis in the CC.

Glass-Steagall Banking Act (1933) Created Federal Deposit Insurance Corporation to insure personal bank accounts Separated commercial from investment banking – The ‘Firewall.’
Business direction and corporate welfare with no basis in either the TSC or CC.

Federal Deposit Insurance Corporation (FDIC) (1933) Insured bank deposits against bank failure, up to a certain level.
Corporate welfare with no basis in either the TSC or CC.

Securities Act (1933) & Securities Exchange Act (1934) Created Securities and Exchange Commission (SEC). Allowed federal regulation of stock trading in public corporations.
CC does authorize the regulation of stock trades between states. To the extent this is a lever to direct the underlying businesses, the act is unconstitutional.

Gold Reserve Act (1934) Called in all private gold and created a government hoard (Fort Knox).
There is no public purpose for this seizure, even if properly compensated.

Banking Act (1935) Restructured and centralized the Federal Reserve Bank.
Congress has the power to create currency.

Public Utility Holding Company Act (1935) Protected consumers from certain rate increases, and also from high-risk speculation activities.
Socialism with no basis in the CC.

# posted by

Bart DePalma : 9:50 AM

CONTINUED

Social Security Act (1935) Created a national system of pensions, unemployment insurance and aid to mothers with children, and created Social Security Administration (SSA) to administer it.
Public pension and maybe unemployment insurance are constitutional public goods. AFDC is not.

Emergency Relief Appropriation Acts (1935-1943) Provided funding for New Deal work agencies, especially the Works Progress Administration (WPA).
Civilian Conservation Corps (CCC) (1933) Put unemployed, unskilled young men to work on rural and park improvements.
Federal Emergency Relief Administration (FERA) (1933) Created under the Federal Emergency Relief Act to award grants to states for works programs to hire the unemployed and provide direct relief payments to the indigent.
Works Progress Administration (WPA) (1935) – Hired the unemployed directly and became the largest of all public works programs.
Reconstruction Finance Corporation (1932): Created during the Hoover Administration, expanded by FDR. Helped finance public works, industry, and national defense activities.
Constitutional to the extent the work is performed for public goods. Building bridges to nowhere is not.

Public Works of Art Project (PWAP) (1933).
Art & Culture Projects of the Federal Emergency Relief Administration (FERA) (1934)
Federal Project Number One (Federal One) (1935)
Created by the WPA to employ artists, writers, historians and other professionals
Constitutional to the extent the work is performed for public goods. One of make work entertainment is not.

Tennessee Valley Authority (TVA) (1933 Planned river basin development based on dams and hydroelectricity.
Rural Electrification Administration (REA) (1935)
Bonneville Power Administration (BPA) (1937)
Managed electric power grid and sales from the Columbia River project.
Precisely the type of local benefit to which the Founders did not believe the TSC applied.

There is a great deal more. the New Deal was a massive explosion of government, but you get the idea.

# posted by

Bart DePalma : 9:50 AM

Of course, nothing in the text of the Spending or Commerce Clause requires the limited reading Bircher Bart offers, he simply smuggles ostensibly libertarian political philosophy into them. Even more ridiculous is his argument that progressive taxation violates the 'equal protection of the laws' (even if the clause read 'all government actions must impact everyone equally' the term 'equally' doesn't mean 'exactly the same,' it's absurd to hold otherwise).

# posted by

Mista Whiskas : 3:22 PM