The debate between Kurt Lash and Mark Tushnet involving Nathan Chapman and Michael McConnell’s interpretation of Samuel Chase’s opinion is an interesting one.  While I hesitate to get involved, I do want to use this occasion to raise a question about how to interpret the paragraph from Calder v. Bull that Kurt Lash quotes.  (I should add that I have nothing to say about Mark Tushnet’s questions about the support that Nathan and Michael have for their interpretation.  That is not my concern here.)

It seems to me that there are three possible interpretations of what Chase has to say:

1. Chase endorses the view that there are natural law principles that, based on their own authority, override ordinary state legislation.

2. Chase endorses the view that the adopters of state constitutions should not be presumed to have given the legislature the power to violate these natural law principles.  Thus, the state legislatures do not have the power to violate these principles, because the state constitutions do not confer on them the power to do so.

3. Chase endorses the view that the state legislatures, when they legislate, should not be presumed to have violated these natural law principles.  Thus, the state legislatures have the power to violate these principles but should not be presumed to have done so in passing legislation.

Kurt adopts this third approach, and Nathan and Michael appear to do so as well.  But based only on the quote that Kurt provides from Chase, I believe that the best interpretation is the second approach.  As evidence, consider my highlighting of portions of the quote:

Whether the Legislature of any of the States can revise and correct by law, a decision of any of its Courts of Justice, although not prohibited by the Constitution of the State, is a question of very great importance, and not necessary NOW to be determined; because the resolution or law in question does not go so far. I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would,  in my opinion, be a political heresy, altogether inadmissible in our free republican governments.

The highlighted portions convince me of the second approach.  I should note, though, that the language is not free of ambiguity.  There is a way of reading, at least a portion of it, to support the third approach.  Consider the following highlighted language:

Whether the Legislature of any of the States can revise and correct by law, a decision of any of its Courts of Justice, although not prohibited by the Constitution of the State, is a question of very great importance, and not necessary NOW to be determined; because the resolution or law in question does not go so far. I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would,  in my opinion, be a political heresy, altogether inadmissible in our free republican governments.

In support of the third approach, the first highlighted sentence might be read as saying that “the obligation that the statute intends to propose” should be determined based on the “nature of the constitutional power the legislature is purporting to exercise.”  Moreover, the second highlighted sentence might be read as saying that “since it is against reason to entrust a legislature with such powers,” it cannot be presumed that “they” – the legislature – have exercised that power.

This is a possible interpretation, but I believe it is weaker than reading the passage as supporting the second approach.  Both the first and second highlighted sentences here are ambiguous and can easily be read to support the second approach.  The first highlighted sentence is easily read as saying that the “obligation that the constitution allows a law to impose” must be based on the “nature of the power on which it is based.”  Similarly, in the second highlighted sentence, the “they” is more naturally read as referring to the “people” rather than the “legislature.’  Moreover, the overall tenor of the paragraph, I believe, as indicated above, supports the second approach.

I am not an expert on this, and so I may be mistaken.  If so, I hope to be corrected by Kurt, Nathan, or Michael.  But based on this paragraph, I see support for the second approach.