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The historical case for strict construction, a structural interpretation – Part I

EDIT: My apologies.  I forgot to thank Murali, Mark Thompson and James Hanley for their reviews of my drafts and constructive comments. 

Since this is a lengthy two-part post, I’ll introduce the post with a summary of what I’m going to cover in Part I:

  • Trying to determine constitutional limits on federal power by focusing solely on the meaning of the text of the Constitution will never yield satisfactory conclusions one way or the other, making consensus on the “proper” interpretation of the text an impossibility.
  • However, approaching this question through the Constitution’s structure – a “partly national partly federal” system creating dual sovereigns (federal and the states) – points towards a “strict construction” (interpreting federal power narrowly).
  • A structural interpretation focuses not on constitutional meaning per se but understanding how much power the states granted to the federal government given their own concerns about retaining as much of their own sovereignty as possible.
  • Detailed arguments are presented in Part II

As Michael Drew rightly noted in the comments section in a mini-post Tod shared some time ago, the use of the Constitution as a public relations tool is as old as the Republic itself.  The “proper” method of constitutional interpretation started during the ratification debates and hasn’t stopped since.  It’s a topic that’s been addressed multiple times here at our beloved OT(1).  To the extent there has been any sort of consensus or resolution here in our OT debates (at best the former and certainly not the latter), it was best expressed by Mark Thompson in his 2011 Limits, What Limits?

…The Constitution, again, was a compromise, and the nature of compromises is that you will often punt on things where you can’t come to agreement, but which are not relevant to immediate circumstances.  Do we have any reason to believe that “necessary and proper” to “provide for the General Welfare” was any more universally understood than it is now? 

…So what is the purpose of the Constitution and of constitutions in general…?  The same as it always was: to provide a framework within which a republic can evolve, and in which power rests in the hands of a given electorate…

…It does not tell us how broadly or narrowly to interpret phrases like “necessary and proper,” “general welfare,” and “among the several States.”…

…I think ultimately libertarians have to accept that our preferred understanding of the Constitution has no more evidence in its support than liberals’ preferred interpretations…

This is mostly correct, but the topic deserves another examination.  With respect to the text, Mark was right.  For example, even taking the narrowest view of the textual meaning of words like “commerce” (trade) and “necessary and proper”, it’s still impossible to draw discernable boundaries.  Does it matter whether or not the founding generation could have/would have understood legal doctrines such as “streams of commerce” or the Dormant Commerce Clause?  Both were developed to deal with interstate commerce issues that arose out of an increasingly industrialized and national economy.

However, through my travels, not only have I come to agree with Mark but also have come to the conclusion that the best way to fully grasp the Constitution is through it’s structure as a “partly national partly federal” form of government, a position originally introduced by James Madison in Federalist 39.  However, rather than citing Federalist 39 at this point, I am going to start the discussion by introducing one of the earliest attempts to use the Constitution as a public relations tool, an attempt that had little success in the short run but very lasting implications in the long run (2): James Madison’s Virginia Resolution of 1798 (“VR”), a resolution anonymously drafted by Madison and passed by the Virginia Legislature in protest of the unconstitutional nature of the Alien and Sedition Acts.  In the opening sentence of Paragraph 3, Madison articulated a specific constitutional vision:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact;

A short time later, in response to criticisms aimed at his VR, Madison defended his vision.  Madison wrote in his famed Report of 1800, the follow-up to the Virginia Resolution (my emphasis added):

The next position is, that the General Assembly views the powers of the federal government “as limited by the plain sense and intention of the instrument constituting that compact,” and “as no further valid than they are authorized by the grants therein enumerated.” It does not seem possible that any just objection can lie against either of these clauses. The first amounts merely to a declaration that the compact ought to have the interpretation plainly intended by the parties to it; the other, to a declaration that it ought to have the execution and effect intended by them. If the powers granted be valid, it is solely because they are granted; and if the granted powers are valid because granted, all other powers not granted must not be valid.

Please understand that my intention here is not to put Mark’s argument against one of the chief architects of the Constitution.  Both positions are correct, albeit from completely different perspectives: Mark through the text and Madison through the Constitution’s structure.  Today, because debates over the Constitution seem to focus  on the text and not structure and that structure is generally understood as the structure of the federal government (i.e. the three branches, checks and balances, separation of powers), the debates over the structure of the Constitution vis-a-vis the sovereignty of the states vs. the federal government, debates that dominated constitutional discourse from the ratification debates through the antebellum period and largely ended at the conclusion of the Civil War, have been mostly swept under the rug and understandably so.

While debates over the nature of sovereignty under the federal government have no bearing on how the Constitution should be interpreted today, on a historical basis, these debates matter if only because there is a way to interpret the Constitution that arose in this context.  The method of interpretation I am referring to is a form of original intent originalism that focuses not on the intentions of the Framers but something far more relevant to the constitutional debates of the founding generation.  My introduction to this “original” original intent originalism came in the form of a law review article written by H. Jefferson Powell. The article is seen as one of the most influential and strongest critiques of the original intent originalism most associated with people like Robert Bork, Edwin Meese and Raoul Berger, and in rejecting this form of original intent originalism, Powell suggest a form of “original intent” originalism more compatible with the founding generation:

As understood by its late 18th and early 19th century proponents, the original intent relevant to constitutional discourse was…that of the parties to the constitutional compact – the states as political entities.  This original “original intent” was determined not by historical inquiry into the expectations of the individuals involved in the framing and ratifying the Constitution, but by a consideration of what rights and powers sovereign polities could delegate to a common agent without destroying their own essential autonomy.  Thus, the original intentionalism was a form of structural interpretation.  To the extent that the historical evidence was to have any interpretive value, what they deemed relevant was the evidence of the proceedings of the state ratifying conventions, not the intent of the framers (pp 887-888).

As I mentioned earlier, the establishment of the Constitution created a “partly national partly federal form” of government.  Perhaps readers are familiar with terms like “dual sovereignty” or “divided sovereignty”.  They’re interchangeable.  In other words, there existed both a sovereign “We the People of the United States” and, after all thirteen colonies ratified the Constitution, thirteen separate sovereign states, with each entity being sovereign with respect to either the powers granted to it (the federal governments) or the powers they retained or reserved for themselves (each state).

Notice that I used terms like “created” and “granted” as opposed to simply stating that the Constitution “divided” powers between the federal government and the states.  The reasons for this should be somewhat apparent from the Powell quote as well as Article I Section I of the Constitution – powers were granted (I’ll get into this a little more later).  Now, we can take Powell’s language – “a consideration of what rights and powers sovereign polities could delegate to a common agent without destroying their own essential autonomy” – and frame that as a question:

How much power did the states as sovereign political entities prior to the establishment actually give up to the federal government, or, specifically, to “We the People of the United States”?   Was the grant of power broad enough to allow for the more liberal interpretation of the Constitution favored by the Federalists or was the grant of power far more limited in nature?  Madison’s position in the Report of 1800 – If the powers granted be valid, it is solely because they are granted; and if the granted powers are valid because granted, all other powers not granted must not be valid – suggests the latter.  Madison’s position leans heavily towards a more narrow/strict interpretation of the Constitution, which I’ll explain in my next post.

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50 thoughts on “The historical case for strict construction, a structural interpretation – Part I

  1. I can see the idea that the Constitution is a compact between the states, with the states acting through their conventions rather than their various political institutions. But the preamble points to the issue there: the constitution is adopted by we the people of the United States of America, a singular and national political entity. It looks more to me like the conventions are the people of the whole country bypassing the various states and imposing a superstructure atop those several states.

    This might not go directly to the “strict constructionist” point you’re setting up to ultimately make in the next post, but I suspect it does. “Strict constuction” is typically invoked in a bid to claim the Federal Government lacks power to do Thing X, where X is something that the strict constructionist would in all likelihood oppose on policy grounds were there an explicit grant of constitutional authority for it. Which is not to say that a strict constructionist is being unprincipled, but rather to point out that strict constructionism is rarely raised by proponents of particular policies.

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    • To your first paragraph, I suppose the challenge of splitting this up into two parts is that people will raise points that I ultimately address in the second post. I referred to it in the third to last paragraph and will try to take readers from the Articles of Confederation to “We the People of the United States”. Here, I’m both recognizing a compact and a national sovereign, the latter of which was ignored by the mid-19th Century states rights proponents. In fact, they rejected dual sovereignty outright.

      This might not go directly to the “strict constructionist” point you’re setting up to ultimately make in the next post, but I suspect it does. “Strict constuction” is typically invoked in a bid to claim the Federal Government lacks power to do Thing X, where X is something that the strict constructionist would in all likelihood oppose on policy grounds were there an explicit grant of constitutional authority for it.

      This is a very good point to raise here because when I wrote this, it was originally a single post, and at the end, I discuss a number of limitations of my approach, one of which I included in the title.

      The reason why I used the term “historical” is because I avoided making a normative argument and kept my focus on a very specific period of time. Your point wasn’t one of the things that I thought about when I decided not to make a normative argument, but it’s a fair point nevertheless. My view on modern “strict constructionist” is precisely what you said.

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    • “strict constructionism is rarely raised by proponents of particular policies”

      Burt, this isn’t meant to sound as jerkish as it is going to, but why is this observation in any way relevant or interesting?

      If you and I are playing a game, and one of us wants to propose a change to gameplay, he won’t do so by appealing to the most restrictive (or any, possibly) interpretation of the game’s rules; it will always be the skeptic of the proposal who does so, in response to the proposal.

      This says nothing at all about the rightness or wrongness of either party – the proposal may well be against the “rules”, and for good reason, or it may be within the rules and still a bad idea, etc.

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      • The question isn’t jerky at all.

        I’m thinking more about @tod-kelly’s recent post complaining that partisans resort to arguments of principle when their appeals to efficacy of policy and legitimacy of majority approval fail.

        If you favor Federal policy X and I oppose policy X, one way I can seek to prevent X from becoming law is to argue that the Constitution will not allow. To get to that result, I have one of two arguments: either a specific provision of the Constitution forbids it (say, the Establishment Clause or the Due Process Clause), or the Constitution does not allocate the power to do X to the Federal government. That second stratagem — the government can’t do X because the Constitution does not give it power to do X — is what I understand the phrase “strict construction” to mean when it is typically invoked.

        E.g., “You must interpret the Fourteenth amendment narrowly because strict construction. Therefore, the government can’t desegregate schools because nothing in the Constitution, including the Due Process Clause of the Fourteenth Amendment, authorizes Federal regulation of local schools.” Proponents of integration, supporters of Brown v. Board of Education, argue for an expansive, and therefore loose, construction of the Fourteenth Amendment.

        Or, e.g., “You must interpret the Commerce Clause narrowly because strict construction. Therefore, the government cannot criminalize marijuana because nothing in the Constitution authorizes Federal criminalization of consumption of intoxicating substances.” More sympathetic than the first example, but the same legal argument. Those who oppose decriminalization argue for an expansive, Wickard v. Filburn type understanding of the Commerce Clause.

        Or, e.g., “You must interpret the Constitution narrowly because strict construction. Therefore, there is no individual right of privacy because that word is not used in the Constitution, and states can regulate activities like consumption of contraception and abortion of pregnancies as they choose.” Fairly obvious here.

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      • I didn’t think there was anything jerky in ‘s comment.
        This…

        That second stratagem — the government can’t do X because the Constitution does not give it power to do X — is what I understand the phrase “strict construction” to mean when it is typically invoked.

        Is on the right path. With a little explanation courtesy of me, it’s my hope that a better understanding will be had by all. Also, I think it will have the unintended effect of making people roll their eyes even more when strict construction is invoked today, but that’s where the analysis led me. :D

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      • – no, I meant my inquiry was going to sound jerkish, because I am taking ‘s observation to be obviously true, but trivially-so.

        That is, if the Constitution is like a set of rules, and rules by definition constrain and direct gameplay; then to say that proponents of a change to gameplay (policy) will not appeal to strict construction of those rules, and opponents of a change will, seems obvious to me. That is what rules are for. That is what they do.

        After Burt clarified/amplified, I see it is more that he is noting that this appeal to the strict letter of the “rules” often comes after other efforts to persuade have failed or appear to be in danger of failing; but I still see this as fairly obvious, and observable anytime you play a board game; the arguing/bickering comes first, and then somebody goes to the closet and drags out the rulebook or Scrabble dictionary to settle the matter.

        This still tells us nothing at all about who was correct, and why they were so in the specifics; nor does it tell us the overall best way to play the game or interpret the existing rules, or what changes to make.

        I also don’t know what “the constitution ought not be a means to an end, but rather an end unto itself.” means. Rules should never be an end unto themselves. They should constrain and direct gameplay so as to provide an optimally-level and as close-to-ideal-as-possible playing field to the players. They are *exactly* a means to an end.

        Perhaps what he means is they aren’t supposed to be directed to a *specific* end, that of “my side wins and yours loses”; but as a lawyer, he presumably attempts to use rules to that specific end all the time. Justice is supposed to occur emergently, as he and his opposite number both play their game.

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      • After 20 years in the business, , I’m no longer sure that the fruit of the process of skilled lawyers clashing is necessarily going to be “Justice.” A reasonable approximation of it, perhaps, but I’d more readily describe the result as “something everyone can live with given economics and indeterminacy.” Maybe that actually is “Justice,” but if so reality is a damnably cynical place to live. If I make it to the bench, maybe I can do something more about alloying fairness of rule, fairness of process, and fairness of result. Money’s a tough thing to work out of that alloy, though.

        As for the Constitution being an end unto itself, again, apologies if that’s opaque. I seem to be suffering from that a lot these days. Here’s a recapitulation of my briefly-expressed thought: the constitution provides a palette of objectives the laws are supposed to promote: a more perfect union, the general welfare, the vindication of individual liberties. It doesn’t say how to reach those goals — the particulars are left to the political process. The Constitution provides norms against which policy might be measured: “good” policy in the normative sense, not in the sense of efficaciousness. Beyond that, the Constitution is of little use in fashioning policy, by design: the molding of policy is left to the political process.

        Just as you hope “Justice” is the result of skilled legal adversaries clashing in a fair judicial contest, so too is “good policy” supposed to be the result of skilled political adversaries clashing in a fair political contest. The institutions of Congress and the Presidency and federalism are intended to encourage discussion and compromise and eventually consensus on the merits of a particular policy.

        I say, “We should have a national single-payer health care system.” You could object with, “We can’t afford one,” or you could object with, “That would disincentivize innovation,” or you could object with, “that would result in lower quality care to the typical patient.” Then we go back and forth on whether this or that facet of the proposal is a good idea. That’s “playing the game,” to use your analogy.

        If your response to my single-payer proposal is, “The Constitution doesn’t allow it because strict construction,” we aren’t debating the merits of a single-payer system anymore. We’re debating Constitutional law. It’s not so much that you might be right or you might be wrong — it’s that you’ve changed the subject. It’s not an appeal to the rules, it’s a different game altogether.

        We can certainly debate the Constitutional permissibility of my proposal. That’s important. But the political forum isn’t a good place to have that discussion if we want to resolve it on its merits. That discussion happens best in a court, not in Congress. Congress is a good place to discuss cost, efficacy, collateral effects. Invoking the Constitution in Congress distracts from, to the point of derailing, the political discussion over the merits of an idea.

        It’s the job of Congress to decide if it’s a good idea in the first place. It’s the job of the courts to sort out Constitutionality. (Note the separation of powers at work here.) In theory, the courts are apolitical about doing the job of refereeing Constitutionality, precisely because it’s a different sort of discussion than the kind politicians are supposed to be having.

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  2. Does it matter whether or not the founding generation could have/would have understood legal doctrines such as “streams of commerce” or the Dormant Commerce Clause?

    The Dormant Commerce Clause is described in Federalist 42. In fact, I believe this is the only reference to the Commerce Clause in the Federalist Papers, suggesting that the the Commerce Clause was intended more to restrain the states than to empower the Federal Government.

    Isn’t it funny how a clause granting such broad, sweeping powers to the Federal Government, which surely must have been extremely contentious, is mentioned only in passing, and then only to discuss how it limits the powers of the states to interfere in interstate commerce?

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    • I understand the Commerce Clause discussion in Federalist 42, but I always understood the Dormant Commerce Clause as a developed legal doctrine as a “negative” version of the Commerce Clause.

      Isn’t it funny how a clause granting such broad, sweeping powers to the Federal Government,

      Imagine a scenario where the federal government has sweeping powers under the Commerce Clause but has yet to regulate substantial parts of it. Consider situations where states attempt to regulate manufacturing, agriculture, labor in order to address any number of things including private power discrepancies, worker safety, etc. etc.

      What happens next? The businesses subject to the regulations say “This is unconstitutional. States are not allowed to regulate my business. Since X regulation impacts interstate commerce in some way, this is the responsibility of the federal government, and just because the federal government has not addressed the issue does not mean that the state has legal authority”. Here, companies use the dormant Commerce Clause as an attempt to strike down state level regulations aimed at their businesses.

      Better yet, consider the restraint of trade language of the Sherman Anti Trust Act. If manufacturing falls under the umbrella of commerce, any negative impact on manufacturing has an impact on commerce which then violates the restraint of trade language of the Act. Therefore, allowing an expansive reading of the Commerce Clause, prior to 1937, there would have been nothing no stop companies from citing the Sherman Act against striking workers that were successfully crippling a company’s ability to manufacture products. After all, if one can’t manufacture, one can’t sell, hence a restraint of trade.

      In both examples, companies attempted to use very broad readings of the Commerce Clause to either thwart state-level regulations (Dormant Commerce Clause) or to crush labor strikes. Had a broad reading of the Commerce Clause been the law of the land at the time these cases were brought before the Supreme Court, their efforts would have been successful.

      Then again, we all know that the early 20th Century Court ruled based on laissez-faire economics, never upheld regulations and went out of its way to screw over workers every chance it could.

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  3. I have to agree with Brother Burt here. My general view of when people develop modes of interpretation is that it is to find a Constitutional way to announce extra opposition to something that they don’t like on ideology or policy grounds.

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  4. “How much power did the states as sovereign political entities prior to the establishment actually give up to the federal government”

    They gave up one batch in 1789 and another, much more substantial batch, in 1865. (Lincoln v. Davis, as enacted in Amendment XIV.) I’ve never thought much of originalist arguments that don’t deal, front and center, with the 14th amendment.

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    • The 14th gets you incorporation and equal rights – and by implication, grants the federal government the power to enforce these things – but isn’t (necessarily) a broader grant of federal power than that. (e.g. social security is still problematic)

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      • While it doesn’t increase the scope of federal power already addressed in other parts of the Constitution, it is still a “substantial batch” as put it. I wasn’t sure if I agreed with his statement at first, but it’s reasonable. The 14th Amendment is not just incorporation but rather it’s a federal veto on the traditional police power of the states.

        It was such a substantial shift towards centralization that the Supreme Court punted on the issue the first chance it had when it gutted the Privileges or Immunities Clause in the Slaughterhouse decision. It punted on the issue of the federal enforcement of civil rights legislation in Cruickshank v United States, the decision that paved the way for Plessy v Ferguson.

        Also, despite claims of an activist court in the early 20th Century, the Supreme Court upheld the majority of state laws that were challenged on 14th Amendment grounds (although wage laws and purely labor laws were struck down).

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      • I disagree. The 14th was drafted and ratified for the explicit purpose of trying to normalize the citizenship status of African Americans, particularly those in the Old South. Citing it to challenge the power of the states or the federal government to regulate the many aspects of commerce was a post-hoc opportunistic rationalization. Done many times, but always as the proverbial hammer when all you have is a nail.

        That said, Cruikshank and Plessy were horrible abominations of justice and a reading of the 14th exactly opposite for what it was intended to do. (the craziest thing about Plessy is that it’s probably the one time in the 19th century where the railroad interests didn’t get their way)

        Incidentally, a court today would have to overcome the conservative wing’s deference to state sovereignty and the liberal wing’s deference to legislative economic regulation (at all levels) to rule the opposite way that the slaughterhouse cases were actually decided. Though of course the issue wouldn’t get that far because the butchers would simply buy enough legislators to ensure any regulations met the butchers’ muster and wouldn’t have to be challenged in court.

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    • Please keep in mind that I’m writing with a narrow purpose in mind – providing historical evidence for a preferred form of constitutional interpretation at a specific point in time. It’s not intended as a normative defense and I apologize for not making that point clear in Part I (it is in Part II).

      I’ve never thought much of originalist arguments that don’t deal, front and center, with the 14th amendment.

      I’ll consider myself lucky. While I don’t deal with the 14th Amendment in this post, I can safely say that my approach is very non-originalist based on what legal academia considers originalism. I suppose that means you best take me seriously. ;)

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      • providing historical evidence for a preferred form of constitutional interpretation at a specific point in time.

        Do you mean to say that all you are arguing is that strict constructionism was the right way to interpret the law in the early 19th century or whichever time period you are interested in? i.e. are you asking the equivalent of “what was the Roman Law concerning X during the reign of Emperror Marcus Aurelius?”

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      • Do you mean to say that all you are arguing is that strict constructionism was the right way to interpret the law in the early 19th century or whichever time period you are interested in?

        Yes.

        i.e. are you asking the equivalent of “what was the Roman Law concerning X during the reign of Emperror Marcus Aurelius?”

        I’m not sure. Was there already a pre-existing body of law? If yes, then I think the answer is no given that my argument for strict construction is partly based on how the system under the Constitution was actually created and, what it replaced (the Articles), what similarities, if any, existed between the two forms of government, the issues that were brought up and the compromises made. I’m not sure Emperor Aurelius would have encountered any of this given that I assume that he himself was sovereign.

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  7. Dig this:

    Imagine a Rawlsian veil of ignorance. We come up with a set of rules that we not only agree upon but we agree what they mean. “When splitting a Snickers with your little brother, cut the Snickers in half and your little brother picks which half he wants.”

    The problem is that without a veil of ignorance, we are stuck with people who are seriously going to argue that this rule allows for both cutting and picking who gets what half. You see, if you read it less literally, and besides knives are dangerous, and anyway this rule was made by people who didn’t know what society would look like today, and what if you have a little sister instead?

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  8. Here is a worry. When I look at the problem of trying to choose principles of legal interpretation, it seems as if the question is “what is the law?”

    Now, I think Hart is more or less right in his analysis of law. A legal system is the union of primary and secondary rules. The primary rules must be generally efficacious (as in most of them should be obeyed most of the time by most people). The primary rules should also be valid (as in the rule/s of recognition must, as applied by officials, point to those primary rules and thereby validate them).

    Either principles of legal interpretation are part of the rule of recognition or they are not. If they are, then since your legal officials are not now*, generally speaking, strict constructionists, then strict constructionism just is not the method of interpretation that picks out the contents of the constitution. If principles of legal interpretation are not part of your rule of recognition (considered expansively), then there is no legally better way of interpreting the constitution. One always goes outside the law in picking one or some other method of constitutional interpretation. Certainly if the latter is true, it is unclear what your purpose is in defending strict constructionism, since per assumption, it is not any more faithful to the law than at least some other competing methodologies**.

    What I’m trying to question is whether the history of the constitution (and its construction and its structure) has any bearing on whether interpreting the law in such a way is more accurate than other ways of interpreting the law.

    *Perhaps they were in the past, but that has no bearing on the current contents of your legal system.

    **Clearly there are some methods of interpretation that are just off base, but that just means that some weak version of the first arm of the dilemma holds. Perhaps there is a common core of interpretive standards that can be said to be employed by almost all judges, but this common core does not settle all interpretive disputes. If such a common core existed, it would thereby be a part of the rule of recognition. If no common core exists, then it is unclear how one can say that some methods of interpretation are more faithful to the law than others.

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    • I find that the argument that we shouldn’t be beholden to some dead (maybe there are other adjectives here, maybe not) politicians from hundreds of years ago tend to show up more when the language is less open to multiple interpretations.

      Of course, the flip side of that is that the argument that we need to look at what the politicians from hundreds of years ago meant when they said, for example, “cruel” or “unusual” tends to start showing up when there are multiple reasonable interpretations of such clauses (e.g., we need to define “cruel” or “unusual” by what we mean when we say that, not by what they meant when they said it).

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      • I’m not saying that we have no reason to care about dead politicians from long ago. I’m making a weaker* argument. The people whose pronouncements are at the very least strong evidence** for something being the law do not use the same interpretive framework as . Dave’s interpretive framework may be novel and interesting, but that is not how the law is currently interpreted and applied (presumably). If it were, that would be sufficient to endorse it as a theory of interpretation. As far as describing the content of the law goes, describing how judges (especially supreme court judges) currently describe cruel and unusual is sufficient to fix those meanings insofar as we care about what punishments are constitutional as per US law. This may or may not be different from what was considered cruel and unusual in the past.

        *In a way, this argument is more radical as it could even warrant ignoring what currently still alive and still in office politicians said/ cared about. PPACA may not have been intended to exclude entities like Hobby Lobby, but the law as it is does so.

        **If we are legal realists about Law, then Judge’s pronouncements are strong evidence for, but not constitutive of law.

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    • Can I address this after Part II is published? I think that I would end up pulling more from Part II to address this, because this:

      What I’m trying to question is whether the history of the constitution (and its construction and its structure) has any bearing on whether interpreting the law in such a way is more accurate than other ways of interpreting the law.

      Will become more understood in Part II. You have a good argument here and I think it would pose substantial hurdles if I made a normative case for strict construction today (as it clearly did in the 1930s as constitutional jurisprudence shifted away from the 18th and 19th Century formalism).

      Still, my question to you would be how do factor in the rules and principles of legal interpretation when the document you wish to interprets exists within a larger system? The Constitution is a document that requires interpretations but, at least in 1789, the focal point of my analysis, the federal government existed among thirteen other sovereign states (at least sovereign with respect to what they didn’t grant the federal government), that I’ll argue were in effect co-equals.

      Interpret the text too narrowly and you prevent the federal government from doing what it is constitutionally required. Interpret the text too broadly and you run into other issues. As you were one of my esteemed reviewers, you know what those issues are but I’ll come back to them after Part II is published, which I think will happen tomorrow.

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    • What I’m trying to question is whether the history of the constitution (and its construction and its structure) has any bearing on whether interpreting the law in such a way is more accurate than other ways of interpreting the law.

      In my opinion it does because I would argue that the Constitution, properly understood at the time of ratification, was not a standalone legal system that can be judged and interpreted in its own context (obviously, things are different today). Any such interpretation of the document that the system of dual sovereignty created what was in effect a state within a state. Within its own realm of power, the Constitution is the supreme law of the land. All other powers were reserved to the states or to the people, meaning that the states (or states people as the political society) retained that sovereignty (i.e. ultimate authority to rule).

      Strict construction, at least as I articulated it in Part II, is in my opinion, the best method of interpretation to preserve the boundaries between those powers the federal government has the legal authority to execute and those powers the federal government has no legal authority to execute (those powers reserved to the state).

      The Powell article I linked to in this Part has an interesting section that may pertain to this discussion. If I’m reading you correctly, an alternative method to interpreting the Constitution is an approach based on the common law – one that looks beyond the text into intent and other factors. From what I can understand, it was the approach favored by the Federalists given the very narrow reading of federal power under the Articles of Confederation. That the text of the Articles required a strict construction shouldn’t be disputed given that the Articles technically a compact and not legally binding on the people of each states.

      Still, the common law approach, or a more constructive approach, has to deal with the barrier constraints imposed by the sovereignty (or residual sovereignty) of each of the states within the same constitutional system. If the federal government assumes a power not granted to it, it has to take legal authority from the source that has the legal authority, the states. The anti-Federalists knew this and opposed it on those grounds.

      I think that at the end of the day, after several re-writes and 4,500 plus words over two posts, I would say that strict construction was the best approach to preserve the original vision of the Constitution as having a sovereign federal government with its own set of powers and the thirteen states, all of which were sovereigns in those areas not granted to the federal government. This also assumes that preserving state sovereignty was the primary constitutional principle driving such an interpretation, and I think it was.

      When the emphasis shifted over from a more decentralized system of federalism to the cooperative federalism of the late 30’s and beyond, the constitutional values shifted and the rules of legal interpretation shifted (or at the least they were fully accepted – Progressives spent decades trying to shift them).

      I hope this helps.

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  9. Maybe you’ll cover this in part 2, or maybe I’m misunderstanding the OP, but are you suggesting that the constitution is best understood (or at least well understood) as a compact among states? If so, that seems a departure from other things you’ve said at OT when it comes to secession and the state-compact interpretation of the union. (Of course, people change their mind. Also of course, I sometimes misunderstand these things and that might not be what you’re saying at all.)

    Or to put it a slightly different way, if it can be shown that the ratifying conventions understood the constitution to be such that states may on their own initiative secede, would that lend legitimacy to secession under the rubric that you seem to be proposing here?

    I’m really not trying to do a gotcha, and I feel as if I’m probably misunderstanding your argument. But that is what I am getting out of it right now.

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    • Maybe you’ll cover this in part 2, or maybe I’m misunderstanding the OP, but are you suggesting that the constitution is best understood (or at least well understood) as a compact among states? If so, that seems a departure from other things you’ve said at OT when it comes to secession and the state-compact interpretation of the union. (Of course, people change their mind. Also of course, I sometimes misunderstand these things and that might not be what you’re saying at all.)

      I like that you raised the red flags early (or are they Confederate flags? Nah, just kidding).

      I mentioned above “partly federal partly national” so yes, the federal part does involve compacts. However, keep in mind that Madison used the word “compact” yet late in life rejected the compact theory that John Calhoun used as the basis for his doctrine of nullification, the same compact theory that supports secession.

      I’ll admit to walking a fine line seeing as I’m leaning towards the Madison/Jefferson/Tucker position that was the intellectual foundation of the 19th Century states rights movement (the Kentucky and Virginia Resolutions were those foundations), but seeing as I’ve already said that a federal sovereign was created, a position that the pure interstate compact theory rejects, I’ve implicitly rejected secession.

      I’m not sure if you or other readers recognize that I’ve done that. It’s ok if you don’t since I doubt most people have studied the details of the states rights/nationalist debates. If I ask people to name the first principle that holds the compact theory argument together, how many would answer “indivisible sovereignty”?

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  10. Part II will be published tomorrow afternoon, since I know everyone has been waiting with baited breath and I’ve gotten hundreds of emails about it. ;)

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