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, NY, NH, 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):
(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
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.
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.
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.