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

The Part II summary:

  • The founding generation understood the laws of nations, especially those governing compacts – defined here as an agreement between two or more sovereign states.  The Articles of Confederation was a compact
  • Within compacts, sovereigns delegated powers to agents that construed those powers narrowly
  • While the Constitution replaced the Articles and was not a confederal system, it was, at least in two important ways, a compact among states
  • The first two bulletpoints mentioned above were contributing factors to anti-Federalist opposition in the various state ratification debates, all of them saw a threat to state sovereignty, some more than others.
  • Two key compromises widely understood as limiting the scope of federal power to those powers specifically enumerated in the Constitution came out of the state ratification debates.  One of those was eventually put into writing
  • The Supreme Court’s pre-1937 federalism points to a more narrow interpretation of federal power.

Here we go…

(1) Fully sovereign states delegating limited powers (sovereign powers) to agents that construed those powers narrowly was a well-understood concept in the realm of international law.  Agents were not sovereigns themselves and interpreting power too broadly ran the risk of violating state sovereignty by exercising powers not delegated to it.  It’s also important to recognize that under no circumstances did sovereign states give up sovereignty to the agent.  Rather it delegated sovereign powers, that could be taken back at any time such sovereign state chose to no longer be a party of a compact.

An explanation of this rule of construction was offered by St. George Tucker in his 1803 A View on the Constitution (source).  Tucker’s treatise was one of the first systematic defenses of both state sovereignty and strict construction as well as a defense of the 18th Century states-rights centered constitutional vision presented by Madison in his Virginia Resolution (not to be confused with the 19th Century states rights arguments supporting nullification or secession – more on this later).  Tucker writes in favor of an interpretation giving preference to state sovereignty:

For, no free nation can be bound by any law but it’s own will; and where that will is manifested by any written document, as a convention, league, treaty, compact, or agreement, the nation is bound, only according as that will is expressed in the instrument by which it binds itself. And as every nation is bound to preserve itself, or, in other words, it’s independence; so no interpretation whereby it’s destruction, or that of the state, which is the same thing, may be hazarded, can be admitted in any case where it has not, in the most express terms, given it’s consent to such an interpretation.

The delegation of limited sovereign powers and a strict construction of power go hand in hand, as evidenced by:

(2) The Articles of Confederation was a purely confederal compact among thirteen fully sovereign and independent states.  The states themselves were the parties.  It was, as Article III stated, a “league of friendship”.  It had very few powers delegated to it, and the federal government under the Articles had no legal authority to bind the states or people. As most of us know, one of the chief complaints about the Articles was that it lacked the powers to properly address the issues among the several states.

This was no accident. It was by design based on how the founding generation understood compacts.  Furthermore, this understanding was put into writing in Article II:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

The language of Article II is rooted in the language of international law. It is a statement of delegated sovereignty as opposed to a grant of power.  Sovereignty itself still remained with each of the thirteen colonies, and if a sovereign has a right to delegate powers as an agent in its highest capacity, it has the right to resume them at their pleasure at any time.

Yes, a lot did change when the Constitution was established and the Articles of Confederation was (mostly) tossed into the dustbin of history.  Still, the background information presented in my first two points is important because it reflects what was largely understood around the time that the Constitution was drafted and then debated in the state ratification conventions.

(3) There is a key similarity between the Articles and Confederation: both are compacts. Unfortunately, because of the 19th Century debates between the states rights school and nationalist schools of thought coupled with the southern attempt at secession and the invocation of the compact theory in defense of segregation in the 20th Century, referring to the Constitution as a compact is likely to generate suspicion if not worse.

While understandable, this is also wrong. James Madison would refer to the Constitution as a compact numerous times yet he strongly rejected the compact theory developed in the middle part of the 19th Century.  The Madisonian vision of a compact was more akin to a “compound compact” and best articulated in his Notes on Nullification:

And where does the sovereignty which makes such a Constitution reside. It resides not in a single state but in the people of each of the several states, uniting with those of the others in the express & solemn compact which forms the Constitution. To the extent of that compact or Constitution therefore, the people of the several States must be a sovereign as they are a united people.

In some way, the Constitution has to be a compact, and the compact resulted in the creation of “We the People of the United States”.  Remember, prior to the establishment of the Constitution, each state was a sovereign entity.  The Articles of Confederation was nothing more than a compact among those thirteen sovereigns so a singular American sovereign didn’t exist.  It had to be created, and it could only be created one way – the voluntary consent of each state in its highest capacity – no different than a compact.  Madison explained this process in Federalist 39:

…this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves…

…It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves…

…Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act…

There is support for this text in the Constitution itself: Article VII:

The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.

The implication of Article VII (and, as a side note, an argument the states right school made against the nationalists) is that Article VII conclusively demonstrates that the only parties to the Constitution were those that ratified.  Non-consenting states could not be forced into the arrangement after the Constitution was established.

Obviously, the biggest difference between the Articles of Confederation and the Constitution is that while the Articles was a purely federal form of government where the states retained the entirety of their sovereignty, the Constitution created a system of dual sovereignty.  A federal sovereign, We the People of the United States, was created.  As a condition of ratification, it was understood that the states were going to give up some portion of their sovereignty to the new government yet retain the remainder of their sovereignty with respect to those powers not in the Constitution. Justice Reed described this arrangement in the majority opinion of United Public Workers v Mitchell (1947) (emphasis added):

The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail…

(4)  Ultimately, we need to ask the question: How much of the sovereignty of the states was transferred to the federal government?  The best approach to this question is to answer another question: How was the Constitution a compromise? 

We know that the Constitution encountered significant opposition when it was first introduced to the states for ratification.  The people in some states were able to get over their concerns pretty quickly while it was a much closer call in states with strong anti-Federalist influence (Virginia, New York).  The “wiggle room” that everyone seems to talk about when discussing the open-ended nature of the text was the same “wiggle room” that the anti-Federalists saw.  What they saw in that wiggle room first and foremost was a threat to their own sovereignty, a government that could use the open-ended language of the Constitution to assume powers that are not expressly listed within the document, powers which prior to that would be reserved to the states or to the people.  This arrangement would render states not as independent sovereigns with respect to those powers not expressly delegated, the arrangement under the Articles, but rather as subordinate units in a form of centralized government, even a national government,  that could swallow the sovereignty of the states.  Despite the problems with the Articles of Confederation, the Framers knew that a wholly national form of government was not politically feasible, and as much as the Framers tried to structure a federal government that addressed the deficiencies of the Articles of Confederation yet not create a fully national form of government, the anti-Federalists saw just that.

Broadly speaking, two compromises were reached.  The first compromise was the number of assurances the Federalists had to make at the various state ratification conventions that the powers granted to the federal government under the Constitution were limited to those powers listed in Article I Section 8 and that the broader language, for example, the Necessary and Proper Clause, only applied to those powers listed.

The second compromise, very much related to the first, was getting those reassurances put into writing, which happened through the Bill of Rights.  Despite Federalist assurances that the Constitution was a limited grant of power (James Madison – Federalist 45 – “few and defined” powers) and despite Federalist arguments that the Bill of Rights was not necessary for that very reason, the anti-Federalists still pushed for it and got it. There were a number of reasons they pushed for it, but one of the most important reasons was that the Constitution, unlike the Articles of Confederation, lacked a specific provision expressly limiting the powers of the federal government.

Six states included proposed constitutional amendments as part of their ratification statements (MA, NYNH, NC, RI, VA).  Of the six states, all but New York had as the first proposed amendment on their list what would eventually become the Tenth Amendment.  The Tenth Amendment, which was strikingly similar to Article II of the Articles of Confederation, was intended as the express limitation of federal power that the proponents of the Bill of Rights sought.

In no way did these compromises “fix” the meaning of the words within the document.  That wasn’t the intent.  Rather, the intention was to preserve whatever sovereignty would remain with the states after transferring it to the general government.  Do the intentions of these compromises lead us to a preferred form of constitutional interpretation and can it reasonably be done in absence of a consensus on the meaning of the textual provisions?

If the Constitution was a limited grant of power, and I think the historical evidence more than concludes that it was, then all we have to do is revisit the same relationship between expressly delegated powers and strict construction of those powers in the context of compacts and/or the Articles of Confederation and apply it here.  By my reading, this is what St. George Tucker did in his influential treatise on constitutional interpretation.  He based the argument for strict construction as a presumption in favor of the states in the event that a conflict between the federal and state governments with respect to a given power arose (here):

Whether this original compact be considered merely federal, social or national, it is that instrument by which power is created on the one hand and obedience exacted on the other.  As federal it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn into question.

(5) The arc of the Supreme Court’s federalism jurisprudence itself supports this thesis that the Constitution should be strictly construed against the federal government and in favor of state power if only because the modern understanding of the power of the federal government vis-a-vis the states came to a head during the second half of the new deal. New Deal. According to Kurt Lash, “Tucker’s Rule”, rooted in both the Ninth and Tenth Amendments, remained a crucial component of federalism jurisprudence well into the 20th Century.  While the landmark Supreme Court decisions in McCullough v Maryland and Gibbons v Ogden, rejected a strict construction of federal power in favor of a broader vision focused on national sovereignty, the Supreme Court was backing away from Marshall’s vision as early as the late 1820’s and with the nullification crisis in full swing, the Court was less willing to take an expansionist view of federal power.  The narrow view of federal power survived the Civil War, governed much of the Commerce Clause jurisprudence in the so-called “Lochner era” and was ultimately superseded after the Marshall/Story view of federal power was revived by the 20th Century Progressives.   Progressives/liberals have disagreed with this interpretation (including, recently, Ian Millhiser), of the history of federal power, but in light of the historical evidence, it seems most plausible (1). 
Epilogue

To anyone that has made it this far – thank you for bearing with me.

As readers hopefully figured out, the case for a strict construction reading of the Constitution, a position best associated with the anti-Federalist position (and perhaps associated with modern day libertarians and conservatives) is its strongest as a historical argument based on what was understood by the founding generation, what was achieved when the Constitution replaced the Articles of Confederation, what compromises were necessary in order to secure ratification and the fact that federalism jurisprudence between 1789 and 1937, with the exception of Marshall’s decisions in McCullough and Gibbons, reflected a Supreme Court interpreting federal power more narrowly (although incrementally expanded to deal with a rapidly changing industrialized economy).

So yes, contra Mark’s statement, which inspired this series of posts, if we approach the Constitution through it’s structure, something we can more easily deduce than the specific meaning of phrases, I think there is plenty of evidence for a strict construction interpretation even if the text itself doesn’t provide that answer.  Granted, the approach is rooted in the states rights tradition, but it has to be given the Constitution’s origins and the conditions of ratification.

This conclusion is, however, a double-edged sword for me.  I say this for two reasons.  As important as sovereignty was to the founding generation and the influence that it had in the framing, ratification and early understanding of the Constitution, as well as it playing a significant role in the events leading up to the American Revolution and the Civil War, state sovereignty, properly understood, was what is probably best understood today as a constitutional principle, no different than things like democracy, individual liberty and political participation are today.  Therefore, by today’s standards, my argument is definitely non-originalist.  As far as making a normative argument for strict construction, I don’t think anything I’ve written is particularly useful.

That said, I’m comfortable with that.  That wasn’t my purpose.  This is a subject that has always held my interest and I wanted to apply that interest to a narrowly-defined subject in the context of historical inquiry. Nothing more.

Notes:

1.  I understand that I have not fully defended this position, but for the time being, readers can refer to Barry Cushman’s Rethinking the New Deal Court.  I could cite the Supreme Court striking down most if not all of President Roosevelt’s early New Deal Laws (i.e. the National Industrial Recovery Act in Schechter vs United States) as well as other attempts by the federal government to regulate areas not directly related to having a direct impact on interstate commerce such as manufacturing (U.S. v EC Knight) and labor (child labor more specifically – see Hammer v Dagenhart) to demonstrate this point, but, unfortunately, there are still ideological debates over whether or not these decisions were rooted in a constitutional tradition or a laissez faire court attempting to thwart democracy.  I will hold off on opening that can of worms until another day.

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27 thoughts on “The historical case for strict construction, a structural interpretation – Part II

  1. Jeez, part II is soooo much longer… :)

    Dave, I wish I could come up with an insightful question for you, but this is all I got:

    You say that your view isn’t a normative argument for strict constructionism, apparently because of the historical, contextualist analysis you use to make it, but why would Mark (or any other) advocate of structural constructionism be put off by that? Seems to me they’d look at your argument as very amendable to their own views.

    I have to say, tho, what you’ve written seems like the best argument for taking a narrow reading of constitutional principles than I usually confront by constructionists (words in the text, variety). So there’s that.

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    • The question was insightful.

      Seems to me they’d look at your argument as very amendable to their own views.

      Honestly, I have a hard time believing that opposition to policies these days are genuinely on grounds of state sovereignty. I think it’s a cover for simple political opposition, a point I believe Tod has made elsewhere.

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  2. I’m hoping for a part III addressing the notion that the XIV Amendment really changed the state of affairs you describe. The shift in jurisprudence that began in 1939 was not a formal one in the text of the Constitution, but 1868 did see the text change. I’m not entirely comfortable with the idea that the way things are now, with a federal government obviously dominant over the states, is the result of a rawly political maneuver meant to cow judges out of exercising independent judgment out of the law — unless that new, emerging body of caselaw had solid intellectual support in the by-then modified words of the law itself.

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    • I’m getting to responses a little more slowly than I’d like.

      …is the result of a rawly political maneuver meant to cow judges out of exercising independent judgment out of the law — unless that new, emerging body of caselaw had solid intellectual support in the by-then modified words of the law itself…

      By the time that Roosevelt announced his court packing plan, the final votes for West Coast Hotel v Parrish and, if I recall, NLRB v Jones & Laughlin Steel had already been decided.

      My view is this: there were at least three strands of thought that characterized constitutional jurisprudence going into the 20th Century: 1) maintaining the boundaries between national and local spheres (federalism); 2) determining whether a business was considered “affected with a public interest” and what was private; 3) the boundaries between legitimate regulations between employers and employees vs. private contract rights.

      In at least one way, is correct – the world changed, and at some point, the legal principles that may have been adequate at one point were no longer the case, but the changes didn’t occur overnight but over the course of decades. By West Coast Hotel v Parrish, the doctrine that supported Adkins v Children’s Hospital had been swept aside by rulings in O’Gorman & Young v Hartford Fire Insurance Co. followed by Nebbia v New York. Each of those chipped away at the barriers preventing minimum wage laws being upheld, especially Nebbia. Nebbia was decided in 1934, long before FDR was putting pressure on the court.

      At the very least, West Coast Hotel v Parrish makes sense. The ruling in Munn v Illinois, by upholding rate regulations for businesses “affected with the public interest”, it implied that those kinds of businesses could be subject to wage regulations. Also, there was a very good argument that at the time, minimum wage laws helped maintain the principle of neutrality in law because otherwise, employers would pay substandard wages and employees would require aid from state and local governments. That low wages equals rent seeking by companies does sound a wee bit familiar.

      i recall libertarians saying how West Coast Hotel was a stake through the heart of economic liberty, and I think I held that view to some degree at one point. However, the reality was that most economic regulations survived 14th Amendment challenges, and for the ones that didn’t, the underlying doctrines shifted and those cases were eventually overturned. Heck, Lochner was overturned sub silentio in 1917’s Bunting v Oregon, almost 20 years before the so-called Lochner era came to an end.

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      • I’m getting to responses a little more slowly than I’d like.

        One reason for that, I think, is that the OP is so well-written it stands pretty strong on its own. Even my own (very long) comment below is more a nitpick off the epilogue and not on the substance of most of the OP.

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      • Same material covered in History of American Law.
        While this is accurate through the Civil War, and mostly valid through 1937, there were a few exceptions of note; e.g., Amend. XVIII.
        (also, special midterm question on Lincoln’s use of Federalist # 40 in re-shaping the legal and Constitutional environment)
        Some important stuff left out though.

        One oft-overlooked tidbit is that West Coast Hotel specifically states that Adkins was a judicial departure:

        We think that the views thus expressed are sound and that the decision in the Adkins case was a departure from the true application of the principles governing the regulation by the State of the relation of employer and employed.

        An excellent overview of the material, but I agree with the end tag: The utility of such assessment is of limited use.

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          • Thank you for the compliments.

            One oft-overlooked tidbit is that West Coast Hotel specifically states that Adkins was a judicial departure

            I can make an entire post out of this one comment.

            If I assume that you’re right, the question that has to answered is how it’s a judicial departure. The majority opinion in West Coast Hotel does not do a good job defending its claim because in support it cites two cases decided several years after Adkins and both cases represented a significant shift in the Court’s doctrine, shifts that paved the way for West Coast. O’Gorman upheld wage regulations in businesses affected with a public interest, and Nebbia v New York eliminated the public/private distinction.

            Therefore, the question is what about Adkins is a judicial departure? Is the decision a departure from an established line of cases or was the underlying doctrine in support of Adkins a departure from a more sensible alternative?

            Personally, I think a full exploration of this may yield two different results. The first is that it definitively proves for that West Coast Hotel was not a decision made as a result of political pressure from the FDR administration. The second is that while I reject the “laissez faire Court” myth that gets thrown around by Progressives citing Lochner v New York, there may be a more plausible and narrow argument for this with respect to the Court’s unwillingness to uphold minimum wage regulations.

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            • The Court never backpedals (or so it claims).
              Although there is a colorable argument that it did pop a wheelie in that Yates dissent.

              That said, and compliments on this post are well-deserved. It’s quite a work.
              This post (both parts) are about a half-a-semester’s worth of material; and a fairly thorough rendering.
              Well done.

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  3. I won’t disagree with a word you’ve written. That said, though, and real historians may disagree with me, but…

    Around 1890 Congress and the federal courts realized that it was not possible to govern a mobile, urban, industrial country on the scale that the US was reaching under that interpretation of the Constitution. And the writers had set the bar for making serious structural changes to the Constitution too high. So Congress and the courts took the only out they had for preserving the country: change their interpretation of how much authority the federal government had. Unsurprisingly, Presidents went along with those changes since it meant more power for the executive branch (even then you didn’t get to be President unless you were interested in exercising power).

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    • The federal courts weren’t permissive of federal authority until the New Deal era. The 1910s were the third time in history where a group of amendments were passed in (relatively) short sequence. The movements that gave us amendments 16 though 19 could have also included a more general writ in favor of federal regulation of the economy, but didn’t. Though that’s arguably not because the will wasn’t there, but that the idea of scientific managerial liberalism wasn’t mature enough yet* – but would reach a breakthrough during the New Deal era as well.

      *there hadn’t yet been a successful (read, sustained) socialist/social democracy/labor government anywhere in the world before WW1 came to a close. (I think, I looked at the big ones, might have missed some and I don’t even Sweden had a left wing governing coalition until after WW1, but that depends on how one reads the politics of the Folkpartiet Liberalerna. Which I just read for about 30 seconds)

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      • In Wabash v. Illinois in 1886 the SCOTUS forbid the states from regulating interstate commerce, setting the stage for Congress to create the Interstate Commerce Commission in 1887. Field v. Clark in 1892 changed the nondelegation doctrine fundamentally, IMO, which made the modern regulatory bureaucracy possible. The bureaucracy didn’t “blossom” until later, but the fundamental changes in Constitutional interpretation occurred around 1890.

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      • But in general, Wabash is just an echo of Gibbons v. Ogden*. And in specifics, it’s another example of the opportunistic taking advantage of regulatory arbitrage, and that particular railroad company using the shield of interstate commerce to defend against a regulatory action of the state of Illinois.

        While Wabash definitely did clear the air for the Interstate Commerce to finally pass, I’m still dissenting bit from the internet’s consensus that Wabash led directly to it’s passage. The Grange movement was around for a bit by then, but attempts at railroad regulation were always push sideways due to political disunity among anti-railroad interests, and political unity (and the right bribes) among pro-railroad interests. I think it’s notable that the Act only passed in a congressional lame duck session which itself was the first session since the Civil War where the Democrats controlled both the House of Reps and the White House.

        *the idea of a network of navigable waterways and connecting canals to promote trade and commerce throughout the United States was definitely a vision the Founding generation had. George Washington himself was personally involved in one of the many (abortive) canal projects to connect the Atlantic fall line with the Ohio river valley.

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  4. s its strongest as a historical argument based on what was understood by the founding generation, what was achieved when the Constitution replaced the Articles of Confederation, what compromises were necessary in order to secure ratification and the fact that federalism jurisprudence between 1789 and 1937, with the exception of Marshall’s decisions in McCullough and Gibbons, reflected a Supreme Court interpreting federal power more narrowly (although incrementally expanded to deal with a rapidly changing industrialized economy). [bold added by me]

    I’m going to push back on this, but first will say that I think in general you are right and that looking at the broad arc of how things happened, the Supreme Court interpreted federal power narrowly and after 1937-1941 it interpreted it more broadly. Indeed, I’d have a hard time arguing otherwise because I’m not nearly as well versed as you in case law or legal history.

    So I mean my “push back” more as food for thought than as a dismantling of what you’re saying, and it comes in two parts.

    Part #1: I don’t think Gibbons v. Ogden and McCullough were the only examples of what you describe. There are the examples mentioned above (to which he might have added Munn v. Illinois). True, as said, those might have been elaborations of Gibbons, but they were still at first glance exceptions to your “only Gibbons and McCullouch” statement. You mention elsewhere E. C. Knight as an example of continued narrow interpretation, but could also mention Northern Securities or even Standard Oil as examples of the Court going beyond that interpretation. Also, the appeals court in In Re Debs found the ARU to be subject to the Sherman Act (although the Supreme Court didn’t sustain that particular part when upholding its conviction). And let’s not forget Schenk v. US.

    Part #2: I urge you to reconsider expanding your notion of when it can be said that “federal power” is actually being exercised to include the judicial branch’s decision to take a case and to act.

    In your epilogue, you seem to be focusing mostly on legislative (Congressional) action and executive (presidential) action, so that the court striking down those actions is an example of narrower or stricter construction and the court sustaining those actions is an example of compliant construction (when it meets the standards of granted powers from article I) or even loose construction (as you might, for example, interpret McCullouch).

    But when the federal courts decide to hear a case, they are exercising federal power. They’re not necessarily doing so in a manner inconsistent with the strict constructionist understanding you defend in your OP. After all, if there is a case or controversy that falls under a federal issue, it’s not surprising that a federal court would hear it or in select cases hear an appeal. But in some cases, the court might act in a more energetic manner than is called for by the tradition of deferring to legislators. Or even if it’s not being “energetic” and is merely deciding the case based on the controversy and must determine legislation needs to be overturned. When it comes to overturning federal laws, like the Judiciary Act of 1789 (Marbury v. Madison), the Missouri Compromise (Dred Scott), (one interpretation of) the Sherman Act (E. C. Knight), Child labor laws (Hammer v. Dagenhart), we can say it’s just policing the federal government.

    But when the court is overturning state laws, (McCullouch, Charles River Bridge, Lochner), it’s asserting *federal* power. True, one can argue that the assertion is in keeping with the strict constructionist understanding you outline in the OP, or is exceptional when it’s not (there may not have been a “lochner era,” but at the end of the day, a law passed by New York was held unconstitutional). But it’s still an assertion of federal power, if only because the federal courts are called upon to offer a decision.

    What I’m saying probably seems circular, a sort of “federal power if you affirm, federal power if you don’t” claim. But what I mean to suggest is that even with article I grants of power, even with the 9th and 10th amendments, even with the prohibition against impairing the obligations of contracts, and even with state-convention-level understandings on the nature of the new union, the constitution’s structure and the way that courts work almost demands that federal and state power will come into conflict and that if the federal courts are called to act as arbiters, those courts will accrue power. And being federal courts, that power will be federal.

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    • Excellent comment, .

      I wrote something about the inevitability of the broad two-century trend toward nationalism that we’ve seen, but decided it was too glib about the important questions raises. Also, I agree with what is I think an implied point you’re making: that the status of judicial review esp. regarding federalism is something of a blank space in Dave’s constitutional-structural argument (but by no means one he couldn’t fill in in a way that’s beneficial to his argument).

      Nevertheless, for me, there is a degree of “National Legislature (constitutional structure) + Big, Strong Nation Grows in Size And Strength Over time (a contingent historical development) = Inevitably Growing Set Of Federal Powers Regardless of Constitutional Limits” that is undeniably and unavoidably at play for me here. We can say the Congress’ powers are enumerated and strictly limited, but as it seeks to govern a big, growing nation, it will make laws to govern the nation, full stop. Which makes the question really one of the status of the courts as arbiters of the structure of power in the nation and among the states as laid out in the Constitution. I.e., the status of judicial review of these questions.

      To some extent, I am experiencing a blockage of she kind n understanding the basic nature of Dave’s argument. Is this about Meaning in the Constitution, regardless of what the courts have said? About what the courts have in fact said – i.e. that strict construction has been the rule, and the issue is a very recent departure? Obviously, both, but I’m not following exactly how he’s tracing that interplay. Much of the debate in comments has seemed to be more about the latter question, which is a bit puzzling to me. Does the meaning in the Constitution stand on its own and maybe it has been correctly interpreted and maybe it hash’t, but regardless this is about what that meaning is, or is this substantially an argument about how the Constitution has been interpreted over time regarding these questions? how do these inform each other or are they in tension? Over what periods? What is Dave saying the meaning for constitutionalism and politics generally in the U.S. of those periods of tension between meaning and interpretation? More simply, what’s the upshot here exactly?

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      • Dave will have to answer those questions for you, but concerning inevitability, I tried to hedge my bets a bit. Historians don’t like to claim inevitability. That doesn’t mean nothing is inevitable, but just that they shy from calling things such. All that said, I do believe that some events, like the adoption of the 1787 Constitution, set things on a certain pathway that’s hard to deviate from.

        Further, I’d like to hedge even more. If we take some sort of growth as a given–be that industrialization, population increase, territorial expansion, or (what actually happened) a mix of all those and more–then the US as a state would have to deal with that growth in “national” ways. The fact that the growth happened doesn’t negate Dave’s argument, not least because he actually addressed that point in his epilogue. In other words, I fear my comment above is a tautology.

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      • Well, notice I (roughly) said * a degree* of inevitability given the 1787 constitution (specifically a national legislature with a fairly extensive set of enumerated powers 9I’d add, created specifically to buttress national power as vice a foregoing failed attempt at more extreme con federalism) and a nation that would grow in size & strength over time). I’m not saying it was inevitable that the U.S. constitution would end up being like the 1787 document. But given what it says and what it was a reaction to (the Articles), as well as a large, strong nation growing in size and strength, I think there is a degree of inevitability to the growth of federal power over the course of centuries. This is not to say there won’t be pushback against that based on a vision of limited powers thought to be set out in 1787 that has successes from time to time in constraining that growth. But the trend I believe is likely if not inevitable.

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      • I’m not aiming this at you directly so please don’t take this small amount of snark the wrong way:

        If we take some sort of growth as a given–be that industrialization, population increase, territorial expansion, or (what actually happened) a mix of all those and more–then the US as a state would have to deal with that growth in “national” ways.

        In other words, when the anti-Federalists expressed their concerns about the vague clauses in the text, the Federalist response could have been “you know, at some point, we’re going to grow in ways that none of us can see so we need to make sure we have whatever national power we need to address it at that point in the future.”

        I think that could have worked…that is, if the intended purpose was to get Patrick Henry to pull a gun on someone. ;)

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    • I’ll try to address your comments:

      My reading of McCullough leads me to believe that Marshall pretty much forgot the compromises that he himself was a party to at the Virginia ratification convention. His treatment of the Necessary and Proper clause and the Tenth Amendment pretty much goes against every argument I made above. My issue with Gibbons is less with the substance of the opinion and more with some of the dicta suggesting a considerably broad scope of what does or does not fall under commerce. That, and I’m a little skeptical of the description of “commerce” as :”intercourse”. The commerce clause focused on interstate trade, as that was a significant problem under the Articles.

      This leads us to an interesting question:

      You mention elsewhere E. C. Knight as an example of continued narrow interpretation, but could also mention Northern Securities or even Standard Oil as examples of the Court going beyond that interpretation.

      Are they going “beyond that interpretation”?

      In E.C. Knight, the question was whether or not the federal government could use the Sherman Anti-Trust Act to go after a monopoly not with respect to trade but rather manufacturing. The Court did consider whether or not there was any issue with restraint of trade and found that at that time that there wasn’t. Therefore, the manufacturing monopoly in of itself was not seen as directly impacting interstate commerce. The Court decided in Northern Securities, Standard Oil and Swift that the monopolies did impact interstate commerce, the first with respect to control over one of the means of commerce (railroads) and the other two with respect to anti-competitive practices that the Sherman Act was supposed to address.

      Did the court deviate from Knight when it decided those other cases or was Knight a narrow ruling based on a specific set of circumstances? Because I believe it was the latter, I don’t see a material inconsistency to the interpretation of the Commerce Clause that’s substantial enough to suggest the Court shifted direction in its doctrine. I would say the same with respect to cases where the federal government asserted its authority to regulate wholly intrastate commerce if it directly impacted interstate commerce (Stafford v Wallace, Shreveport Rate Case).

      The Court sided with the federal government in in Re Debs because the Court believed that the strikes were having a direct impact on interstate commerce. However, in the 1922 Coronado Coal Case, the Supreme Court overturned a lower courts decision that found striking mining workers in violation of the Sherman Act. The striking workers intended to directly interfere with the mining activities but not interstate commerce. Even if striking workers could have had an indirect impact on the mining company’s ability to impact interstate commerce, the Court was drawing a line between commerce and production.

      How this factor into my analysis of strict construction? To be honest, I have no idea. On one hand, it’s easy to look into the history and ascertain that the Constitution was meant to separate activities suited to local matters and those that weren’t. It’s also easy to tell that there were factions that were fiercely resistant to any kind of federal interference in local matters.

      At the same time, the economic conditions the founding generation understood weren’t the same conditions at the turn of the 20th Century, and any attempt to stick to some fixed local vs. national boundary in terms of commerce becomes incredibly difficult. As some of the cases have shown, in order for the federal government to perform it’s constitutionally vested responsibility of regulating commerce among the states, it was arguably necessary to regulate certain forms local activity.

      As much as I think the Commerce Clause and Necessary and Proper Clause cover the “streams of commerce” jurisprudence and that a presumption toward state sovereignty can be rebutted if it means that the federal government is unable to carry out its enumerated powers, there may be counterarguments to the contrary.

      But when the federal courts decide to hear a case, they are exercising federal power.

      Power that is constitutionally vested in the judicial branch. If I didn’t address this, it’s perhaps because I didn’t see any controversy with respect to the role of the judicial branch in adjudicating disputes between the proper powers of the federal government vis-a-vis the states.

      But when the court is overturning state laws, (McCullouch, Charles River Bridge, Lochner), it’s asserting *federal* power.

      I fail to see a difference between how the judiciary asserts its power with respect to federal and state laws. Technically, it’s not federal power but rather the specifically enumerated “judicial power” in Article III, Section I.

      But what I mean to suggest is that even with article I grants of power, even with the 9th and 10th amendments, even with the prohibition against impairing the obligations of contracts, and even with state-convention-level understandings on the nature of the new union, the constitution’s structure and the way that courts work almost demands that federal and state power will come into conflict and that if the federal courts are called to act as arbiters, those courts will accrue power. And being federal courts, that power will be federal.

      I’m sorry I don’t follow here. Can you please elaborate?

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      • Hi Dave:

        Thanks for your thorough response. As for what I meant by this:

        But what I mean to suggest is that even with article I grants of power, even with the 9th and 10th amendments, even with the prohibition against impairing the obligations of contracts, and even with state-convention-level understandings on the nature of the new union, the constitution’s structure and the way that courts work almost demands that federal and state power will come into conflict and that if the federal courts are called to act as arbiters, those courts will accrue power. And being federal courts, that power will be federal.

        I think I meant that the federal courts, just by deciding cases, are making the national government stronger. As the federal courts are increasingly called upon to decide cases, that power grows even more. So even if the courts repeatedly construe federal questions strictly, national power is growing by the fact that they’re the site of where these questions are decided.

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    • Nevertheless, for me, there is a degree of “National Legislature (constitutional structure) + Big, Strong Nation Grows in Size And Strength Over time (a contingent historical development) = Inevitably Growing Set Of Federal Powers Regardless of Constitutional Limits” that is undeniably and unavoidably at play for me here.

      This is why I chose not to make a normative argument but that line of thinking, perhaps influential in a normative, is less important in a historical debate because we know how the idea of “Big, Strong Nation Grows in Size and Strength Over Time” would have flown with the people that were somewhere being skeptical and outright opposed to the proposed Constitution. It wasn’t long before that time that a bloody revolution was fought to fight off that very thing.

      Jack Balkin tried to create a framework originalism around this argument, and as interesting as it is, I don’t find it persuasive. At best, it articulates the vision of the Constitution’s chief proponents.

      Which makes the question really one of the status of the courts as arbiters of the structure of power in the nation and among the states as laid out in the Constitution. I.e., the status of judicial review of these questions.

      Why wouldn’t the courts be part of this? Judicial nullification of both state and federal laws by the proposed judiciary was well understood during the Philadelphia and state ratification conventions. My position is that there’s a certain way judicial review has to be applied in order to keep faithful to the Constitution’s structure. To the extent it’s a rule, it’s a one that applies a presumption towards the power of the states in cases where there’s a conflict.

      To some extent, I am experiencing a blockage of she kind n understanding the basic nature of Dave’s argument. Is this about Meaning in the Constitution, regardless of what the courts have said? About what the courts have in fact said – i.e. that strict construction has been the rule, and the issue is a very recent departure?

      If you go back into the previous OT posts where constitutional interpretation has been discussed, primarily originalism and any form of interpretation that focuses heavily on the meaning of the text, such methods of interpretation come under criticism due to the vague nature of the clauses itself. In this sense, strict construction gets associated, rightly I think, with “fixing” the meaning of text based on some understanding at some period of time.

      I conceded this point, but offered an alternative. Rightly understood, despite the vague nature of the text, based on the founding generation’s understandings of compacts, sovereingty, the Articles of Confederation as well as the nature of the ratification debates themselves, the Constitution should be seen as a limited grant of power, power that was transferred from the sovereign states to a newly founded sovereign federal government. It’s a system of dual sovereignty, and the purpose of strict construction is to ensure that the federal government does not violate the sovereignty of the states with respect to those powers not granted to the federal government. In a way, it’s the way to follow through on the compromises that were made in order to secure the necessary votes for ratification, especially in states where anti-Federalist resistance was strong.

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      • In that case I guess I’m still missing the really basic point. Your historical argument really isn’t being offered with a contention that it carries a normative payload? The historical fact is that federal power grew, a lot, certainly outside the bounds of some visions of how much the constitution was meant to constrain it. If you’re not making a normative argument about that, then what basic argument are you making?

        In general, what is “strict construction is the correct way to interpret the constitution” if not a normative argument?

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      • …Also, wouldn’t an argument about the semi-inenvtiability of growth of federal power outside of a certain set of limits understood a certain way given certain contingent historical facts (what the Constitution says and where it came from; a large, strong nation growing in size and strength) be exactly a historical argument – and not a normative one? That argument doesn’t say that that growth is justified under some particular system of justification. It says it’s semi-inevtable given the givens that are in fact historical givens.

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      • In that case I guess I’m still missing the really basic point. Your historical argument really isn’t being offered with a contention that it carries a normative payload?

        Carries? No. Carried? Absolutely. The “historical” argument for us was the normative argument for the founding generation, an argument that would be repeated in the Kentucky and Virginia Resolutions and vindicated in the election of 1800 when the Jeffersonians ran the Federalists out of power. It was the normative argument in St. George Tucker’s A View of the Constitution, a construction built on the 9th and 10th Amendments with the purpose of maintaining the boundaries between federal and state power on the basis that federal power is limited. Tucker’s work was so influential that it was the primary target of the most well known and systematic nationalist theory of the Constitution – Justice Joseph Story’s Commentaries.

        It was a normative argument during the founding generation because of the emphasis on maintaining residual state sovereignty, an emphasis rooted in a very deep distrust of centralized authority. This drove the ratification debates more than dictionary meanings.

        The historical fact is that federal power grew, a lot, certainly outside the bounds of some visions of how much the constitution was meant to constrain it.

        Your presentation of historical facts, as well as those presented by
        and yourself may go a long way to argue against a strict construction interpretation of the Constitution, especially mine since it’s rooted in sovereignty as a value as opposed to text, but I don’t understand how it undermines my arguments since that history was completely unknown to the founding generation.

        If you’re not making a normative argument about that, then what basic argument are you making?

        I responded to an argument made by Mark a few years back. It was in Part I. I’ll repost it here:

        …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…

        I think I’ve done a good job presenting evidence to the contrary. I don’t think there’s much value to the argument if I was going to try to establish a normative argument for constitutional interpretation today, but it was a damn good normative argument based on what was understood by the founding generation. What was the Tenth Amendment if not an explicit limitation on federal power modeled after Article II of the Articles of Confederation? Heck do we forget why the Bill of Rights was included in the first place and who it was that said it wasn’t necessary and why?

        …Also, wouldn’t an argument about the semi-inenvtiability of growth of federal power outside of a certain set of limits understood a certain way given certain contingent historical facts (what the Constitution says and where it came from; a large, strong nation growing in size and strength) be exactly a historical argument – and not a normative one?

        It’s probably both, and I think Alexander Hamilton just smiled in your nationalist direction. ;)

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      • Thanks . I wasn’t trying to undermine your argument, but to understand what exactly you mean with this strong distinction between “historical” and “normative.” It seems that in some way “historical” here means “what was in the minds of a particular group of people in America at the end of the eighteenth and very beginning of the nineteenth centuries.’ I’m not saying that’s not as important as you’re saying it is (though, if it’s not a “normative” (i.e., with import today) argument, then it’s not clear how actually important you’re saying it is), but I do think it’s a cramped view to look at basically that one particular thing as “historical,” and then to somehow exclude the rest of the history as irrelevant to tracing the course of your “historical” argument.

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      • “vindicated in the election of 1800 when the Jeffersonians ran the Federalists out of power.”

        But that’s mainly because Adams Sr was possibly the worst practical politician of any elected President, alienating allies and giving enemies ammunition by the cartload. (his son was even worse, but ‘elected President’ has an asterisk by JQA’s name).

        Jefferson wound up jettisoning his entire small government agenda in the Louisiana Purchase, not only in the act itself, but the creation of a viable transcontinental nation. Madison always had more federal instincts that the average Jeffersonian, as befitting the man who created it, and fought a war to try to further expand the US territorial boundaries. (i.e. the complete opposite of small government small c conservatism). Monroe declared the entire hemisphere a protectorate of the US. So, so much for driving the Federalists from power. (who of course, still retained the Supreme Court)

        Jackson sort of got back on the small government bandwagon, but that didn’t stop him from fighting genocidal wars with the aboriginal population to establish a white nation in the South. And from then on, the only time people in power or aspiring to power called out for ‘small government’ was to either treat black people badly, or the treat everyone as economic serfs.

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