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A Limited Federal Government: Half Full or Half Empty?

One of the key features of the Constitution’s original meaning is that the federal government’s powers are limited.  Unfortunately, the Supreme Court has allowed an enormous expansion of the federal government’s powers beginning especially during the New Deal.  To an originalist and advocate of limited government, this is depressing.  Yet, there is also a silver lining.  The Supreme Court and apparently an influential part of the public continues to believe that the federal government’s power is limited.  The Court has been willing to enforce this principle of limited federal powers, although in a significantly weakened form.

The limited character of the federal government under the Constitution’s original meaning seems clear to me.  It has roots in the constitutional text and in discussions of the Constitution at the time of its enactment.  Consider first the text: The Legislative Vesting Clause of Article I, section 1 provides that “All legislative powers herein granted shall be vested in a Congress.”  And the Constitution in various part, especially Article I, Section 8, provides a list of powers that Congress has.  The obvious import, which had been recognized widely at the time of the Constitution is that this enumeration implies that other unenumerated powers are not conferred.  The Tenth Amendment provides additional support for this conclusion.

Discussions at the time of the Constitution’s enactment reinforce this textual discussion.  For example, the Federalists, who advocated ratification of the Constitution, defended it against the charge that it did not include a bill of rights, based on the idea that the federal government’s powers were limited and therefore could not abridge various rights, including freedom of the press.

Yet, our constitutional history often ignored these truths.  Beginning with the New Deal Court and continuing until 1995, the Supreme Court never struck something down a law as exceeding the enumerated powers (except in the limited instance when it interfered with state government powers).   To me, this has been one of the tragedies of our constitutional history.

Yet despite this tragedy, the currrent Supreme Court and apparently the public have not accepted this change.  There are at least two significant pieces of evidence for this conclusion. First, even during the years prior to 1995, the Court never admitted that they were failing to enforce the limits on Congress’s powers.  Instead, they had a bunch of doctrines that allowed the Congress to do anything it liked, but without admitting this.  These doctrines included a broad Commerce Clause and Necessary and Proper Clause interpretation, the aggregation doctrine and rational basis test of Congress’s factual findings or assumptions.  Thus, insider lawyers understood, but those outside did not.  (Each year my students need to be told what was going on, since it is not evident from the cases.)

Second, since 1995, a key factor in Supreme Court cases has been whether the theory necessary to justify a broad federal law, such as the Affordable Care Act, would still limit the federal government’s powers.  If the theory would not limit Congress’s powers in some way, then five members of the Supreme Court have often been willing to strike down the law on Commerce Clause grounds, including in Lopez, Morrison and Sebelius.

So where are we on the enumerated powers?  The Supreme Court’s doctrine is much weaker than the original meaning, but the Court still believes in some limitation, much to the chagrin of many progressive constitutional law professors.

Reader Discussion

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on April 09, 2018 at 17:57:30 pm

Randy Barnett convinced me that it all started with Marshall and his rather broad interpretation of Necessary AND Proper, such that it became only Necessary but not necessarily Proper.

It has all been simple incrementalism since then with a pronounced increase in speed following the New Deal.

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gabe
on April 09, 2018 at 23:41:57 pm

The U.S. Constitution,as envisioned by the Founders and reflected in the Federalist Papers,is as dead as the dodo bird. It has been so amended,misinterpreted and or ignored that today it has little or no meaning as to the Founders original intent. The 14th,16th and 17th Amendments,The Federal Reserve Act,The New Deal,the U.N. Treaty,the Great Society,The Civil Rights Act and the Patriot Act,among many other Federal Government actions and rulings has completely and totally changed the tenor of the original document. Instead of a Republic we now have a mobocracy democracy run by oligarchs,globalists and corporate special interests that has morphed into a world empire that has bankrupted America both fiscally and spiritually. To deny these facts and still believe that we have the rule of law instead of what in reality is the rule of powerful men,mostly behind the scenes,is not only blind but foolish and naive.

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libertarian jerry
on April 10, 2018 at 15:35:50 pm

I am no serious scholar of such matters, but one need only "Be empirical. Look" to see the constitution's tectonic change from its plain meaning then, when it was ratified and the Bill of Rights added, to what later Justices, making it up on the fly since the late 1930's, have made of it now. Then, in the several decades after it was written and ratified, the Marshall epoch, the constitution's construction was undertaken with a) notable restraint distinctive in the history of the constitution in the Supreme Court, yet b) with a statesman's eye toward the constitution's unifying political and economic purpose for founding, setting on a stable grounds, and nudging toward a prosperous future a fledgling nation which had barely survived the centripetal, fractious structural flaws of its prior governance and existential war of independence.

John Marshall, military participant in the Revolution, adept and wise political leader under both the Articles of Confederation and the new Constitution, counsellor at law and trial lawyer, scholar of the common law and prescient witness to the nation's close-call with war and its close-run survival of inadequate governance (with the omnipresent risk of disaster long-following in the wake of both,) looked back at that tumultuous history and at its lessons learned, which he had lived more actively and knew more intimately than most of the statesman who were his peers. Hence, the Great Chief for 34 years construed the constitution, most importantly for this particular commentary its commerce and necessary and proper clauses, toward the purpose for which it and they were written, resorting almost without fail to a restrained and reasoned reading of its literal text as the words meant both in the common law and in the common understanding of men at the time they were written, approved and ratified.

If Randy Barnett says otherwise, that the great slide into legal subjectivism began with Marshall, he fails to understand Marshall and in his search for "where did we go wrong" he misses the whale in the swimming pool, the late New Deal Court and the Warren Court.

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timothy
on April 10, 2018 at 20:33:03 pm

Timothy:

Marshall was a titan of the Court. Yet, he clearly sided with the "centralizers", the Federal aggrandizers in his "necessary and proper" jurisprudence. Perhaps, this was an outlier for him, and as you say he may generally be considered to have understood COTUS to "restrain" the Federal Government. YET, he did approve of an interpretation of N&P that would appear to reduce its meaning from the conjunctive to the disjunctive.
Would you say that he, and others of the early ?court, were able to avoid the current difficulties associated with N&P expansiveness because their other opinions were much closer to the original understanding of a restrained government and was the "mindset" of all active political players of the time.

Yet, we have seen over time a belated but mounting effort to evince as necessary and proper ANY DANG THING under the sun that could, possible, Maybe, Baby, be rational - irrespective of whether it is proper or necessary.

Just sayin'

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gabe
on April 10, 2018 at 20:48:59 pm

I know that the N&P disjunction is the conundrum; you put your finger on a wound for those of us who love Marshall and think him the 3rd greatest Founder (despite a handful of slaves.)
I'll address it in the AM.
After watching my Nats lose three to the Mets, I'm now watching them about to take two from the Braves. I can't think about Marshall while Harper might get another home run or two.

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timothy
on April 11, 2018 at 20:00:15 pm

Gabe:
Thinking as I write and writing with a Nats/Braves game on TV, here are a few thoughts in no particular order about Marshall and the N&P Clause:
1) I have read only one of Randy Barnett's books, "Restoring the Lost Constitution," when it was 1st published years ago. I remember little about it except that I disagreed with more of it than I agreed with. Although I approved of his thinking on the indispensability of originalism, I considered his call for vigorous judicial restoration of "lost rights" as sounding too Douglasonian and disagreeably like Warren. But I can't remember what he says about Marshall, so I can't speak to your suggestion that Barnett holds that Marshall's liberal interpretation (in McCulloch, I assume you/he mean) of the N&P Clause is the source of much judicial and legislative mischief. If Barnett says that he is wrong.
2) The Left since FDR has tried to capture Marshall's gargantuan legacy as a pivotal Founder, the principle ideological goal being to legitimize their "living constitution" by claiming Marshall as its original source of judicial affirmation. Hence, one needs be cautious in listening to claims about Marshall. Believe nothing about Marshall written by the Left or by others seeking to exploit the constitution for their political projects. Do not trust. But do verify assertions about the Great Chief, including mine that Marshall was not a preternaturally gifted, 19th century prototype of William O. Brennan, but was, rather, if properly understood, the original Originalist, a constitutionally- restrained, common law-grounded, legally-principled textualist, the epitome in his jurisprudence of what most federal judges since the late 1930's would abjure in theory and have, in fact, flouted in their Article III service.
And it's there, not following Marshall but deviating sharply from his shining path, where it all went wrong, not in incremental steps onto the road to Perdition because of Marshall but in a series of epochal judicial leaps off the true course set by Marshall and into a constitutional ditch.
3) Marshall's jurisprudence was a reflection of his character, which was all prudence (he and Washington being the most prudential in an extraordinary era of statesman-like prudence, Jefferson notwithstanding.) Marshall's prudence was fully-informed by his experiences as a prescient witness of and an active participant in a) the nation’s close-call at war and its close-run survival of inadequate national governance and b) the omnipresent risk of national disaster that long-followed in the wake of war and poor governance. On the Supreme Court his look back at a) that tumultuous history, b) the continuation of its existential threats and c) its lessons learned ( a history which he had lived more actively and lessons which he knew more intimately than most of the statesman who were his peers) were also acts of prudence. This lifetime of prudence formed the foundation of his understanding of the meaning and purpose of the constitution, prudence being his life-guide and constitutional meaning and purpose being the lodestar of Marshall's Court. (And it was literally his Court; no other CJ can sustain such a claim.)
4) Marshall's "jurisprudence of prudence" was most markedly shaped by his legal conclusions that in ratifying the constitution the people (not the sovereign states) had acted directly a) so as to curb the centripetal political forces of the states and redress the fractious structural flaws of the nation's prior governance, b) to adopt nationalist principles and a nationalist perspective in response to their precarious circumstances and c) to reject governance by a confederation of state governments, confederacy having been the source of the dangerous precariousness from which the people had fled in ratifying the constitution.

In that regard and in light of his and the country's recent traumatic experience, Marshall feared most (and believed most likely to occur) a regression to confederation (political disintegration) as opposed to an evolution or abrupt step toward a single, consolidated national government ( toward the political concentation of power.) In that sense, Marshall saw the people as forming a new national government (and he ruled jurisprudentially) with a conservative eye primarily on the need to preserve the union against external invasion and internal disintegration.

Marshall's decision in McCulloch to validate national bank through the N&P Clause and to strike down a state's attempt to tax the bank must be seen in the bright, illuminating light of nos. 3 and 4, supra.
5) Marshall's McCulloch sticks to the constitution's text and meaning; it was a thoroughly originalist/textualist/constrained interpretation guided by legal principle, although the Left, in its Freudian projection and self-gratifying attempts at wish-fulfillment, would see it as expansive and unbounded.
They say Marshall rewrote the constitution to meet his Federalist needs. I say Marshall saved the constitution by adhering to it.
Here's why: Considering that "It's a (general) constitution we're interpreting" (not, say, a detailed, specific power of attorney or a contract) and using a "fair construction" (Marshall's guiding approach to any legal document; strict construction having its place, too, for certain constitutional provisions) of Congress' delegated powers, Marshall saw that the N&P Clause made express what otherwise could have remained only arguably implied and thus left dangerously ambiguous, i.e., that in addition to its expressly delegated powers Congress was given the right to enact "appropriate" means conducive to implementing its delegated powers so long as those means are reasonably suited (not indispensable or absolutely "necessary") to meeting the objective of the delegated powers (there, taxation, coinage and debt management.) Marshall's construction rests on: sound legal doctrine, articulated by Hamilton and Madison, that a government entrusted with ample powers must also be presumed to have been entrusted with the "ample means" to execute those powers; reason and the constitution's text (fairly interpreted.) Marshall also reasonably and literally relied on the constitution's text which placed the N&P clause among the delegated powers of Congress, not among the restraints on Congressional power, and which did NOT restrain any of Congress' delegated powers or its authority to exercise discretion in choosing the means to the delegated legislative ends.
6) The constitution makes no sense read "strictly" the way the anti-federalists/ states righters who fought Marshall (including Jefferson and later Jackson) would have read it in McCulloch: read not as a constitution but as a statute, legal code or contract the ways and means to execute which are expressly stated and readily amendable. It is inconceivable that the constitution and the nation could have survived had Congress been denied the power to take steps to carry out its expressly delegated powers. Such a narrow reading is contrary to the character of a constitution; it would have served the special interests of slave-holders and nationally-divisive regional economic interests; it might well have accelerated the war of rebellion which, when it came, was aimed ultimately by its perpetrators at the same disintegrating provincial goals sought by the anti-Federalists in McCulloch.
7) Madison as President signed the National Bank bill he had opposed as Congressman, but he became querulous over Marshall's sustaining it in McCulloch, whining that the constitution can be read as limiting both sovereignty and means. ( I take it Madison signed the bill despite his concluding it unconstitutional, thereby violating his oath of presidential office.) Yet, he offered no reading of achieving that impossible task, delegating specified sovereignty with expresssly stated means of execution) could be accomplished consistent with his and Marshall's goal of a national union. I suggest he offered no reading because there is none, and had Madison had Marshall's prudence he would have accepted that reality and worked within its constraints, as did Marshall.
8) Marshall believed that the Supreme Court would restrain Congress should it abuse its delegation of powers. Marshall alone had elevated the Court to coequal constitutional status empowered with the constitutional capacity to confine Congress to its constitutional bounds. Marshall was correct for over a century, but FDR's Congress and FDR's Supreme Court abandoned the constitution. Madison ab initio was skeptical of centralized legislative power. In his day and for most of the next century Madison was wrong. He was proven right eventually, but Madison was 120 years premature in his worry. That's when it all went wrong under the N&P Clause.

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timothy
on April 12, 2018 at 11:42:40 am

Timothy:

Thanks for the exposition.
Agreed, Marshall (and others) were prudent and had to be as the young nation did indeed face existential threats both from within and without. As a prudential matter, I actually agree with the decision. Where I struggle is with the "effect", and mostly long term effect (see New Deal court) that, if Barnett is correct, Marshall's reasoning / wording had on subsequent jurists and decisions.

There is much to be said for review Federal Legislation with a view towards both the necessity AND the propriety of that legislation. It may be necessary, in pursuit of public health, as an example, to regulate the sale of lemonade. Is it also then proper for the Federales to require six year old Girl Scouts to obtain a lemonade license. Yeah, trivial BUT...

I agree that Barnett's, in the book you also read, critique of Marshall for an analysis that rejects strict construction of the term necessary by contrasting it with a previous use of necessary in COTUS in which it is modified by the word "absolutely" may be a bit excessive. Prudence, and a fair reading of the text AND the times may have required such a reading. Unfortunately, the door may have been opened for less principled, less prudent jurists to further expand the term necessary and to completely disregard the term "proper" We have seen, and experienced the results of this.

I am no Marshall expert, indeed, I claim no special or specific expertise, and thus I am unable to argue that Marshall could have reached the same decision without diluting the import of the N&P Clause.
Is it an overreach to argue, than, that Marshall's looser textual construction is the first crack in the dam of the renowned dam builders of the New Deal as they accumulated immense power behind their Federal dams? Is he responsible for the *cleverness* of post New Deal jurisprudence? _ No! and I suspect that our Black Robed brethren would have crafted their way, constructed their roads (and not just Postal Roads - Ha!) to the New World of centralization.

Perhaps, all one can say is that sometimes evil arises out of good actions!

take care

gabe

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gabe
on April 13, 2018 at 06:09:25 am

Gabe:
Taking your points in your sequence, I have the following sur-reply:

1) Your "...struggle ... with the “effect”, and mostly long term effect (see New Deal court) that, if Barnett is correct, Marshall’s reasoning / wording had on subsequent jurists and decisions.." is true of any decision and the effect of precedent. That McCulloch has been cited countless times by subsequent Article III courts indicates its validity not its fault. That the New Deal Court abused the worthy results of Marshall's N&P analysis and deviated from Marshall's competent, tight legal reasoning in, say, Wickard vs. Filburn is a fault of that Court, not the consequence of either Marshall's reasoning nor its results. It would be the height of illogic for Barnett to assert that twisting the worthy precedent of McCulloch's round peg so as to fit it into Wickard's square hole is evidence that McCulloch's peg should have been square or, worse, should never have been made into a peg in the first place.

2) In acknowledging that "There is much to be said for review Federal Legislation with a view towards both the necessity AND the propriety of that legislation" you suggest that in holding a law "necessary" the Court need not also find it "proper." I admit to being confused by your lemonade stand example, but that aside, it seems to me your chagrin concerns the alleged (by Barnett?) disjunction in McCulloch of the "N" from the "P." Two thoughts: a) McCulloch did NOT separate Necessary from Proper; it did not find the national bank necessary yet fail to rule on its propriety. Nor did the Court find the bank proper yet evade the question of its necessity. McCulloch held that Congress had expressly granted Congress the discretion to select the means (the national bank) to implement its delegated powers over coinage and debt so long as the means was reasonably Necessary (not indispensable) AND conducive (Proper) to that end. b) To your confusing lemonade stand rhetorical example, I agree that Congress may determine that a law is Necessary (not indispensable) to a delegated end (say interstate commerce) yet it need not determine that licensing girls who sell lemonade is Proper in order to regulate interstate commerce in lemonade. You seem to be saying that, assuming arguendo it was Necessary to have the national bank, it was not Proper to do so. I can't see how doing what is Necessary could ever be said to be not Proper. In any event that's not what McCulloch did. Rather, it conjoined the N and the P. Surely if the bank is Necessary it was Proper. Your lemonade stand outrage may be because of confusion by food types and Wickard's wheat, a case which is not related to McCulloch, does not involve the N&P Clause but does sustain a ridiculous Executive Branch enforcement policy in executing a valid Congressional enactment of its power over interstate commerce.

3) You acknowledge that to require "Necessary" to be "...modified by the word 'absolutely' may be a bit excessive..." yet you lament that "... the door may have been opened for less principled, less prudent jurists to further expand the term necessary and to completely disregard the term 'proper.'"
Again: McCulloch did hold that "Necessary" does not mean "absolutely necessary," a rationale you adopt. McCulloch did NOT "completely disregard the term 'proper.'" It held the creation of the national bank, while not the exercise of an expressly enumerated power, was the exercise of an expressly delegated power to enact such laws as are reasonably (not absolutely) necessary and proper in order for Congress to implement (execute) its enumerated authority over debt and coinage.

4) You say a) you are "... unable to argue that Marshall could have reached the same decision without diluting the import of the N&P Clause.." and you ask b) "Is it an overreach to argue, than, that Marshall’s looser textual construction is the first crack in the dam of the renowned dam builders of the New Deal as they accumulated immense power behind their Federal dams?

Fools rush in, etc, so I will say: a) I cannot conceive of a national bank in the 19th century without Marshall's McCulloch ruling and I cannot fathom any other way to that result except the path of N&P reasoning Marshall chose and that neither the result nor the N&P reasoning of McCulloch in any way constitutes "diluting the import of the N&P Clause." To the contrary, Marshall gave existential vitality BOTH to the N&P Clause AND to the nation because if Congress can implement its enumerated powers ONLY through means that are ABSOLUTELY Necessary and UNQUESTIONABLY Proper for (rather than reasonably conducive to) the execution of its constitutional authority THEN the enumerated powers of Congress are dead letter and the NATIONAL economic foundation on which the 19th and 20th century were built non-existent; and b) Marshall's was NOT a "looser textual construction," rather, it was the ONLY constitutional and the ONLY legally viable textual construction and it was not the "first crack in the dam." The "first crack in the dam" was really three cracks: the constitution's expressly enumerated powers; its expressly delegated N&P Clause and its reliance on the appointment of human beings to serve as Supreme Court Justices empowered to rule as final arbiters of the constitution's meaning. There's your beef, not Marshall's McCulloch. There is no constitutional crack that can be said to have been the consequence 120 years or so later of Marshall's brilliant McCulloch exposition of the N&P clause as it was written written, as it is fairly interpreted and as it can be feasibly implemented.

5) And, yes, as you say "... sometimes evil arises out of good actions..." But no evil arose out of Marshall's Mcculloch, "good" as it is (and it's very good.) The congressional and jurisprudentail evils of which you speak arose not out of Marshall's actions but despite and in defiance of them.

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timothy
on April 13, 2018 at 13:50:20 pm

Timothy:

Good points all.

1) As to the lemonade case. My point was solely to implicate the N&P Clause and not the Commerce Clause. Then again, I believe that SCOTUS review OUGHT to include all constitutional clauses not just that peculiar to the particular case and controversy. Just because we may argue that Obamacare was not a commerce issue but a taxing issue, still the Black Robes ought to consider if it was necessary AND Proper exercise of limited government powers - not at all dissimilar from the little Girl Scout selling lemonade.

2) As to "absolutely" and Marshall's exposition on the N&P, I must ask: "Was it necessary (no pun) to detail at such length his thinking on "necessary" if by doing so, it allowed (however slight and however long dormant it turned out to be) a fractional wedge that was later used by later jurists of less "independent judgement and sense of judicial duty" (a la Hamburger) to blow open a huge hole in HIS structured and reasoned determination.

3) But, YES, clearly the fault lies with the later jurists (if that be what they are, rather than partisan hacks) and not with The Great Chief (I do SO like that appellation). Perhaps,like many others, I, experiencing an almost politically existential *unquietude* simply search in vain for a causation, any causatio, that once identified may be addressed and remedied.
But my unquietude overtakes me even now and I must acknowledge the prescience of Mr de Tocqueville.

take care
I think I will watch some golf.

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gabe

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