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 Limits, What Limits?-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
…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.