The Nature of the Instrument Tells You How to Read It

Here are three wise things in Mike Greve’s lead forum essay. And I hope that saying that I agree with them won’t cause Mike to change his mind!

First, much of originalist constitutional argument these days obsesses about how to understand the meaning of the text. But arguments from text need to be backed up with arguments from structure and purpose. To understand the text, you must understand why one would create such a thing, Mike says, and it is worth quoting him here: “the nature of the instrument tells you how to read it. Once you see that, but only once you see it, the clauses make all the sense in the world and you will know how to read them.” Very true. I teach my students that it is possible to make clever textual arguments all day long. (I’m a lawyer. It’s what I do for a living.) But what turns a clever textual argument into a powerful and persuasive argument is that it is backed by a structural insight about the Constitution’s purpose and function.

This insight, however, may take us in unexpected directions. Let’s go back to a golden oldie—Congress’s power to create a National Bank. When the First Bank was debated in Congress in 1791, a series of representatives defended it by pointing to the basic purposes of the Constitution listed in the Preamble and general principles of constitutional government. They also emphasized that the bank responded to a national problem and that in an emergency individual state banks might be less reliable as sources of credit than a federal bank (a point later demonstrated during the War of 1812).

The Bank’s defenders in 1791 were channeling James Wilson’s view that Americans had formed a national social compact, and the Constitution they had created to implement it gave the federal government the powers to achieve the compact’s purposes. The nature of the Constitution, Wilson argued, tells you how to understand the individual provisions of the text. And you can even look at the preamble to understand the point of the Constitution! (Something which we almost never do today).

Given these assumptions, it’s not surprising that there was overwhelming support for the Bank in Congress. So, for example, here is John Laurance:

[t]he principles of the government and ends of the constitution … were expressed in the preamble, it is established for the common defence and general welfare; the body of that instrument contained provisions the best adapted to the intention of those principles and attainment of those ends. To these ends, principles and provisions Congress was to have … a constant eye, and then by the sweeping clause [the Necessary and Proper Clause of Article I, section 8], they were vested with the powers to carry the ends into execution.[1]

And here is Elbridge Gerry, explaining that the Preamble stated:

the great objects for which the constitution was established, and in administering it, we should always keep them in view. And here it is remarkable, that altho’ “common defence and general welfare” are held up in the preamble amongst the primary objects of attention, they are again mentioned in the 8th section of the first article, whereby we are enjoined in levying taxes, duties, &c. particularly to regard “the common defence and general welfare;” indeed common sense dictates the measure; for the security of our property, families, and liberty—of every thing dear to us, depends on our ability to defend them.[2]

Here is William Loughton Smith:

The power to establish a National Bank must reside in Congress—for no individual State can exercise any such power—The right of no particular state is therefore infringed by the institution . . . [It] is founded on general principles—and will undoubtedly in its operations prove of general utility.[3]

And here is Fisher Ames:

the preamble … declares that it is established for the general welfare of the Union; this vested Congress with the authority over all objects of national concern or of a general nature; a National Bank undoubtedly came under this idea, and though not specially mentioned, yet the general design and tendency of the constitution proved more evidently the constitutionality of the system, than its silence in this particular could be construed to express the contrary.[4]

Conservative originalism faces a crossroads. That is because the issue now is not how to go back. It is how to go forward.

When James Madison rose to speak near the end of the debate, he went in a very different direction, one that is quite familiar to us today. He went through the text of Article I, section 8, clause by clause, and tried to show that the power to create a Bank couldn’t be found in any of its individual provisions. This speech was a key moment in the emergence of strict construction and, more broadly, the assumption that one must always connect federal powers to enumerated powers. This is all familiar stuff today. But it was not the generally accepted view in 1791. When Madison sat down, many of his fellow Congressmen thought he was not being serious, since it seemed inconsistent with arguments he had made two years before in the debate over the implied presidential power to remove cabinet officers.

James Wilson’s key idea—that the nature of the compact tells you how to interpret the text—was both powerful and convincing in the early Congress. That is why the Jeffersonians turned to arguing that the Constitution was a compact of independent states and not a national social compact of We the People. If the Constitution were a compact of sovereign states, then, like any treaty, it should be read narrowly to preserve state sovereignty. If the Jeffersonians had accepted Wilson’s view that the Constitution reflected a national social compact, they would have been backed into a corner. They would have to read the text broadly in the way Wilson argued. Once again, the nature of the document tells you how to read the document.

Madison’s party (The Jeffersonian Republicans) won the Presidency in 1800, and dominated American politics for the next several decades after that. And so the memory of the Founding has been overlaid with a Jeffersonian patina. An obsessive focus on enumerated powers and strict construction became the reigning orthodoxy for constitutional interpretation, a dogma that continued into the Jacksonian period. It became obvious that the Constitution was one of limited and enumerated powers, rather than a constitution of federal and enumerated powers, understood by reference to the purposes listed in the Preamble. James Wilson’s focus on the basic purposes of the compact lost out to Thomas Jefferson’s textualism.

The New Deal, of course, led to recognition of broad national powers. Yet Jeffersonian dogmas have been hard to dislodge, so that it appears that modern constitutional doctrines of national power are a travesty of the Founders’ design for which we must always make excuses, and if you dare to read the words of the Preamble to understand the point of the constitutional text, you must be quietly but firmly led out of the room and institutionalized.

Lest I be misunderstood, Wilsonian premises do not necessarily make the federal government omnipotent. Rather, they cause us to ask a different set of questions that concern constitutional purpose and structure. That is, they cause us to begin with the proposition that “the nature of the instrument tells you how to read it.” Although these are Mike’s words, the ideas go straight back to the Founding. Hence Mike’s second wise point: You should try to “recover old truths and to put lost intellectual pieces back together,” because “if you think you have had an original thought, you are either illiterate or delusional, and quite possibly both.”

And this brings me to Mike’s third wise point: “any thought that cannot reflect upon the contingent conditions of its own origins is, or will soon become, raw ideology. That includes originalism.” Conservative originalism as we know it today was a political and legal project of the conservative movement designed to push back against the liberal legalism of the late 20th century. Now that the Supreme Court is stocked with a majority of movement conservatives, the dog has caught the car.

Conservative originalism faces a crossroads. Roe v. Wade has been overturned; affirmative action will soon be dispatched. The path to a conservative constitutional revolution seems free and clear. And yet this is the moment at which the alliances and interests that formed the conservative legal movement are likely to face the most intense pressure, and may even split asunder. That is because the issue now is not how to go back. It is how to go forward. And one goes forward into a very different world than the world of the Warren and early Burger Courts about which legal conservatives fretted for so long.

Moreover, the rising generation of legal conservatives may not be satisfied with either the ambitions or the values of previous generations. They may want to think for themselves. Today libertarians and social conservatives increasingly occupy an uneasy alliance. National conservatives challenge the status quo. Adrian Vermeule argues that originalism has passed its sell-by date and argues for a common good constitutionalism that celebrates a big powerful administrative state.

Mike doubts that digging ever deeper into antiquarian sources or doing corpus linguistics searches will solve the problem. He argues that a focus on constitutional purpose and structure is a better guide. As noted above, I agree with his basic point about constitutional interpretation. Yet I doubt that Mike’s approach will resolve the emerging conflicts within the conservative legal movement, which seem to me to have deeper causes.

[1] Documentary History of the First Federal Congress, Vol. 14, p. 413.

[2] Id. at 454.

[3] Id. at 423.

[4] Id. at 389.