Gordon Lloyd and Steve Ealy provide considerable material to ponder. The gist of their argument seems to be that rather than a Progressive political culture centered on quadrennial presidential elections and a governmental system featuring a considerable policy-making authority for both the president and the Supreme Court, we ought to prefer a “Madisonian” system. While sympathetic toward, and indeed enthusiastic for, their criticisms of our current political culture, I demur from their ascription of their views to James Madison. Their Madison is not Madison as I understand him, and I prefer the real thing.
Consider the Lloyd/Ealy account of Madison’s response to John Marshall’s opinion for the Supreme Court in the case of McCulloch v. Maryland (1819). As they tell it, Madison responded to Virginia Court of Appeals Chief Judge Spencer Roane’s letter relaying Marshall’s opinion by complaining that “Marshall was not exercising Madisonian Originalism, one that should have followed the ‘regular course of practice’ in order to ‘liquidate and settle’ the meaning of disputed clauses of the constitution.” Instead, they conclude, “Marshall introduced a new understanding of congressional powers that would unsettle a previously settled public opinion.”
What strikes me most about this passage is what Lloyd and Ealy omit. The paragraph in which Madison explains his objections to Marshall’s performance not only elucidates his understanding of the inevitable need to liquidate the meanings of constitutional provisions, but goes on to explain that liquidation must begin with a factor they somehow ignore altogether.
“It could not but happen,” Madison began, “and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise, in expounding terms & phrases necessarily used in such a Charter, more especially those which divide legislation between the General and local Governments.” Now why would Madison mention that the creators of the Constitution foresaw that problems of constitutional application might arise? Because he believed that the creators of the Constitution, by whom I mean the ratifiers of the Constitution, had the dispositive understanding of the Constitution. As his friend Thomas Jefferson put it, the Constitution was to be applied “according to the true sense in which it was adopted by the States, that in which it was advocated by its friends.”
Yes, Madison continued, the ratifiers had “foreseen … that it might require a regular course of practice to liquidate and settle the meaning of” some provisions. So, for example, an advisory role for the vice president might arise in practice, and presidents might learn that they would never after Washington’s first try formally seek the Senate’s “advice” in negotiating a treaty.
So far, so good. Yet, Lloyd and Ealy go on to say that various practices of the Federal Government have become constitutional with use, despite their evident disconnection from constitutional intention. The people have learned to love them, we are told.
One may doubt whether, say, a constitutional amendment to create a “Department of Agriculture” the chief function of which would be to ensure that food prices remained high would garner the votes of two-thirds of each house of Congress, never mind three-quarters of the states, even now. As Jefferson said, people will bear with significant indignities before bestirring themselves to do anything about them; that does not mean they enjoy, let alone endorse, those indignities.
The selfsame paragraph from Madison advises us to approach the matter from a different angle, one which Lloyd and Ealy omit altogether: the ratifiers’ understanding. He recoils from Marshall’s handiwork, he says, because, “It was anticipated, I believe, by few if any of the friends of the Constitution, that a rule of construction would be introduced, as broad and pliant as what has occurred. Those who recollect, and still more, those who shared in what passed in the State Conventions, thro’ which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, can not [sic] easily be persuaded that the avowal of such a rule would not have prevented its ratification.”
For Madison, then, application of the Constitution should not begin with reading the text, reading The Federalist, and studying the opinions of John Marshall. At various points in their essay, Lloyd and Ealy seem to accept the legitimacy of constitutional “amendment” via Supreme Court decision or congressional enactment against which the people never successfully rebel. Madison, for his part, makes clear in this same letter that he believes entirely the opposite: the great glory of the American system, he says, is that the people have delegated precisely so much power as they wanted to delegate, reserving all the rest to the states (that is, to themselves). The Constitution includes two mechanisms for amendment, and by the time Madison penned this letter one of them had been used twelve times (ten at Madison’s insistence). “It is anxiously to be wished therefore” he concludes, “that no innovations may take place in other modes; one of which would be a constructive assumption of powers never meant to be granted.” If amendments there be, they should come via a constitutional route.
Lloyd and Ealy know perfectly well what they are doing: they are trying to have John Marshall and Madison too. But they cannot: it must be either the one or the other. Their goal becomes clear when they invoke Marshall’s (and, perforce, “numerous scholars’,” as most legal scholars’ understanding of ratification begins and ends with Publius and Marshall) point that the Tenth Amendment does not include the word “expressly.” This, they seem to follow Marshall in implying, means that there is to be significant latitude in calling acts of Congress “constitutional.”
But Marshall knew perfectly well that in the Virginia Ratification Convention, Governor Edmund Randolph—one of the five leading participants in the Philadelphia Convention, besides the most voluble Federalist delegate in the Virginia Ratification Convention—repeatedly insisted that Congress would under the Constitution have only the powers “expressly” granted. By Marshall’s reading, if we may dignify it with that name, the Tenth Amendment works as a grant of power, as it negates Randolph’s commonsense promises. Here was one reason Marshall’s opinion in McCulloch, in which he first unburdened himself of this fatuity, sent all of Virginia’s leading Republicans into full-scale meltdown. (What I am saying here should not be read as meaning that Virginia Republicans held the Necessary & Proper Clause to be nugatory. Far from it: they simply read it as Madison had in the House and Jefferson had in the Cabinet during the debate over Hamilton’s Bank Bill in 1790-91. Power to enact legislation necessary and proper to put the enumerated powers into effect was not an implied power, it was a power expressly granted under the Necessary & Proper Clause.)
While Madison insists over and over, in this key missive as elsewhere, that identifying the ratifiers’ understanding of the Constitution is the first step in correct constitutional interpretation, Lloyd and Ealy take a different approach. For them, “there are standards and guidelines in Madisonian Originalism beyond the mere expression of political power and institutional privilege. The standards and guidelines result from a conversation between elected officials in the several branches and levels of government and with the people over time.” Though they immediately disavow support for a “Living Constitution” theory of constitutionalism, it seems that in their effort to call us back from Brennanism and toward Madisonianism, they have given us “pork still with a little change of sauce.”
Lloyd and Ealy show us how their approach works in practice by considering first the Supreme Court’s decision in Brown v. Board of Education (1954), then the same tribunal’s decision in Roe v. Wade (1973). They call the former “an activist judicial decision built on social justice jurisprudence rather than the language of the original constitution.” (Notice that they do not mention the ratifiers’ understanding.) They then say, “But it is settled. We think it is justified on Madisonian Originalism grounds even if the quality of the arguments underlying the Supreme Court decision is somewhat suspect on the grounds of Framer Intent.” (Notice again that they omit ratifier intent, this time adducing “Framer Intent.”) “Its strength is in the tacit explication of constitutional principles,” besides in a shift in public opinion between 1945 and 1954.
This sounds perfectly like a Living Constitution justification of Brown. Justice Brennan would find it essentially unobjectionable. Having gauged public opinion and consulted their own favorite principles, Lloyd and Ealy endorse the holding in the case.
When it comes to Roe, one could easily engage in analogous constitutional derring-do. Partisans of retaining Roe say ready availability of abortion is essential to the complete equality of women in American society, which they say is the general goal of the 19th Amendment, and often add concessions such as “even if the quality of the arguments underlying the Supreme Court decision issomewhat suspect on the grounds of Framer Intent.” Besides, they conclude, public opinion concerning these matters had shifted significantly by 1973. In reality, there was far more strident resistance to the end of segregation than there has been to America’s extremely liberal abortion regime. If “Madisonian Originalism” were what Lloyd and Ealy say it is, it would support Roe v. Wade.
Lloyd and Ealy say in support of their idea that Madison favored drift in constitutional interpretation that he first vetoed a bill to recharter the First Bank of the United States in 1811, then signed the bill chartering the Second Bank of the United States in 1816. They get the facts wrong here: Madison privately supported recharter in 1811, but the bill went down to defeat in the Senate. He never had a chance to veto it, and he would not have vetoed it. In 1816, the Federal Government’s difficulty financing the War of 1812 without such an institution led him to bow to Secretary of the Treasury Albert Gallatin’s demand that he publicly request establishment of a new national bank, and he signed the bill creating it.
Yet, as we have seen, Madison rejected John Marshall’s free-rein approach to constitutional interpretation in McCulloch v. Maryland. To make clear that he did not want his acceptance of the Second Bank of the United States to signify endorsement of loose construction, Madison in his last official presidential act issued a Bonus Bill Veto Message essentially reiterating the approach to interpretation he had taken in Congress in 1790. Lloyd and Ealy show us that he claimed that “a course of authoritative expositions sufficiently deliberate, uniform, and settled” had taken the matter of Congress’s power to charter a bank out of his hands. (Of course, in 1832, Andrew Jackson would disagree. It seems to me that Jackson’s Bank Bill Veto Message of 1832, with its pugnacious rejection of the weight of precedent when calculating the appropriateness of using the veto power to vindicate constitutional principles, reflected the Jeffersonian position. Jefferson’s son-in-law voted against the Second Bank in the House of Representatives.)
Our authors conclude with a few words about the weight of precedent in shaping proper application of the Constitution. Their examples have to do chiefly with the Federal Government’s tendency to usurp powers reserved to the states. People accept that the Federal Government will sprawl across the American landscape like a misshapen old bear rug, it seems, and so federal officials should accept that there has been effective alteration of the Constitution.
I doubt that there is so much support of the Federal Government as they claim. It always was more difficult to eliminate a government program than to create it. I for one am skeptical that Congress could pass by two-thirds vote of both houses and three-quarters of the states would ratify amendments empowering Congress to create a Department of Commerce empowered, e.g., to give money to Boeing to subsidize overseas sales; to create a Department of Education empowered, e.g., to mandate that colleges and universities employ a preponderance-of-the-evidence standard in adjudicating campus sexual assault allegations; or to spend nearly $800 billion in one year on “shovel-ready jobs.” Not James Madison’s political science, but James Buchanan’s Public Choice Theory gives us the best insights into why programs like these continue to exist. They should be blamed on such as the John Marshall whom Madison criticized so vehemently, not on James Madison.
In short, I do not see much of Madison in Lloyd and Ealy’s “Madisonian Originalism.” More’s the pity.