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

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Dave

Dave is a part-time blogger that writes about whatever suits him at the time.

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  1. Avatar Stillwater says:

    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.Report

    • Avatar Dave in reply to Stillwater says:

      @stillwater

      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.Report

  2. Avatar Burt Likko says:

    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.Report

    • Avatar Dave in reply to Burt Likko says:

      @burt-likko

      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, @michael-cain 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.Report

      • Avatar Gabriel Conroy in reply to Dave says:

        @dave

        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.Report

      • Avatar Will H. in reply to Dave says:

        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.Report

        • Avatar Will H. in reply to Will H. says:

          I didn’t get my edit at five minutes.

          Anyway, the blockquoted piece is from West Coast Hotel, 300 U.S. at 397.Report

          • Avatar Dave in reply to Will H. says:

            @will-h

            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 @burt-likko 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.Report

            • Avatar Will H. in reply to Dave says:

              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.Report

  3. Avatar Michael Cain says:

    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).Report

    • Avatar Kolohe in reply to Michael Cain says:

      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)Report

      • Avatar Michael Cain in reply to Kolohe says:

        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.Report

      • Avatar Kolohe in reply to Kolohe says:

        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.Report

  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 @michael-cain mentioned above (to which he might have added Munn v. Illinois). True, as @kolohe 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.Report

    • Avatar Michael Drew in reply to Gabriel Conroy says:

      Excellent comment, @gabriel-conroy.

      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 @Dave 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?Report

      • 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.Report

      • Avatar Michael Drew in reply to Michael Drew says:

        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.Report

      • Avatar Michael Drew in reply to Michael Drew says:

        …I’d add that I don’t follow your second paragraph there at all.Report

      • Avatar Dave in reply to Michael Drew says:

        @gabriel-conroy

        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. 😉Report

    • Avatar Dave in reply to Gabriel Conroy says:

      @gabriel-conroy

      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?Report

      • Avatar Gabriel Conroy in reply to Dave says:

        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.Report

    • Avatar Dave in reply to Gabriel Conroy says:

      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.Report

      • Avatar Michael Drew in reply to Dave says:

        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?Report

      • Avatar Michael Drew in reply to Dave says:

        …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.Report

      • Avatar Dave in reply to Dave says:

        @michael-drew

        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 @kolohe
        @michael-cain 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. 😉Report

      • Avatar Michael Drew in reply to Dave says:

        Thanks @dave. 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.Report

      • Avatar Kolohe in reply to Dave says:

        “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.Report