If I was in the Senate...oh wait. I will never be in the Senate, and never had the chance as I was too out of step with my fellow Baby Boomers over the years...But wait, social media and blogging give me a little voice I used to reserve for the living room screaming at the television....
If I was in the Senate, I would take on the entire libertarian and right wing view of the Constitution in the following way. First, let's quote from James Madison in Federalist Paper no. 37, where he shows us "original intent" is really a flexible Constitution that is only understood through later interpretation arising from litigation, shall we? And to help navigate the language, I will highlight the two sentences that truly get to the point:
"The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated." (Emphasis added)
This is also why Oliver Wendell Holmes, Jr., in his book on the Common Law, recognized on page 1--page 1!!!--of that book, a truism of jurisprudence: "The life of the law has not been logic: it has been experience." Note the words "life" which can be translated into "living" and "law" being based at least as much on "experience" as "logic," or even more so "experience." This is directly keeping with how Madison was explaining to people in 1788 how to interpret this new Constitution. But back to Madison, he was saying, If God can't get it right for posterity when speaking through the Bible, how do we expect us humans making laws getting it right for posterity?
As I said to Justice Scalia in a memorable moment in 1995 where I had the chance to speak with him, my problem with original intent is we somehow elevate the Founding Fathers to a status above God, and yet, we have really no idea how they felt about most issues that come before the Court as Scalia admitted to me in our first public discussion at a seminar I attended in 1995. Funny how he agreed with me privately, but never seemed to let on thereafter. That's because Scalia was a player, and I, alas, am not that good at being a player. :)
Now, let's move on to the idea that the Administrative State is something the dastardly Franklin Delano Roosevelt and his supposedly batty and crazy cousin Teddy before him, and their early friends like Carl Schurz, invented after the Civil War with that Interstate Commerce Commission, and then the alphabet soup agencies that followed (starting with the Food and Drug Administration) and flowered under the New Deal. I happened to catch, at lunchtime, Ben Sasse (R-Nebraska) eloquently attacking the administrative state, something Brett "Debt Man" Kavanaugh wholeheartedly agrees with Sasse about. These guys have been so poorly educated, but it is ultimately not their fault, as the people who taught them were goddamned ignorant about American history and jurisprudence, too (and I am also calling out Breyer and Ginsburg here; the only modern Supreme Court Justice who really understood what I am about to say is...oh irony!...David Souter). Oh well, here we go. Here is Federalist Paper no. 10, written by James Madison, before he later threw in his political lot a few years later with slaveholders against his Constitutional Convention buddy, Alexander Hamilton:
"So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government."
Ah, the last two sentences especially! It is pretty clear Madison is channeling to the future the New Deal. And it is why Holmes understood, too, the Constitution was not a document elevating corporate versions of capitalism, so beloved by his brethren in the era starting after the U.S. Civil War and extending into the early to mid New Deal years, and now making its roaring comeback
I once had a memorable discussion with Eugene Volokh, noted libertarian oriented legal scholar at UCLA. He said Madison does not mean to sound like Ralph Nader in that paragraph quoted above. It can't mean that, he said. So, I replied, what does it mean then? And if you can't say, then why can't I use Scalia's textualism to make it so? In his defense, I honestly can't remember how he responded, because frankly, it was airy and superficial, rare things in Eugene. I had some early arguments over this on his blog The Volokh Conspiracy, before it moved to the august Washington Post, and if you find them, you can read the sputtering responses from the libertarian clan of professors there. They had nothing to show us precisely what Madison meant, as if Madison couldn't write a fairly clear, specific sentence. They got all Federalist Paper no. 37 squirrelly, which puts them into a box, doesn't it? I win either way. The U.S. Constitution is meant to be a living document, which means the New Deal is completely constitutional, or the New Deal means exactly what Madison meant in Federalist Paper no. 10.
Let's also hear from the first truly revered Supreme Court Chief Justice John Marshall, shall we? How about M'Culloch v. Maryland in 1819? Here is what Marshall wrote for a unanimous Supreme Court, explaining why we should have a broad intent behind the words "necessary and proper:"
"The subject is the execution of those great powers on which the welfare of a Nation essentially depends. It must have been the intention of those who gave these powers to insure, so far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." (Emphasis added)
And here he is again in Gibbons v. Ogden (1824) explaining why the Congress has the right to legislate on pretty much anything and everything subject only to the recall from the people in elections:
"This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a "strict construction?" If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor if retained by himself, or which can enure solely to the benefit of the grantee, but is an investment of power for the general advantage, in the hands of agents selected for that purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents or lie dormant. We know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connexion with the purposes for which they were conferred." (Emphasis added)
And again later in the Gibbons opinion, here is Marshall again, this time warning us of the modern libertarian and right wing constitutionalists, who still can't get over the fact they lost in the ratification debate of 1788 and 1789, and lost again in the U.S. Civil War:
"Powerful and ingenious minds, taking as postulates that the powers expressly granted to the government of the Union are to be contracted by construction into the narrowest possible compass and that the original powers of the States are retained if any possible construction will retain them may, by a course of well digested but refined and metaphysical reasoning founded on these premises, explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case, it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and when sustained, to make them the tests of the arguments to be examined."
There are libertarians who are fond of quoting newspaper articles where Marshall and some right wing Southern plantation owner types, using pseudonyms, got into it over M'Culloch and think Marshall was backing off the reading I quote from Marshall, but that is wrongheaded for two reasons: First, there is the broad language again in Gibbons several years after these articles appeared. Second, the libertarian scholars, and even an august scholar, now departed, Gerald Gunther of the Stanford Law School, failed Comprehension 102 in not seeing how Marshall was being highly sarcastic and condescending to the other correspondents. Gunther's introduction in this edition of the articles is so wrong I was shocked at Gunther's lack of perspicacity when I decided to read through the rather dense early 19th Century language of the articles. It only heightens my love for Jane Austen's clarity as I read through such dense language.
And run for the hills or stand and fight if you hear anyone talk of "enumerated powers" because they don't mean what Marshall understood in Gibbons and even Madison understood when he spoke of such things in Federalist Paper no. 10.*
But there is something more which I only recently learned about. Kate Elizabeth Brown has written a very dense, but brilliant book which provides in detail the way in which Alexander Hamilton, while running the Treasury Department, formulated what became known as administrative law from the start of the U.S. government following the ratification of the U.S. Constitution. She also finds early Supreme Court and other lower court case law in the 1790s proving, as a practical matter, even the earliest Congressional legislation on excise taxes and other related economic legislation needed interpretation, and the creation of regulatory rules, in the administration of those earliest laws. What also came across to me was Hamilton's sense of posterity, in making sure not only his view but competing views, were aired before courts and the administrative tribunals in port-master contexts, and in navigating the concurrent and overlapping jurisdiction of federal and state authority, both judicially as well as in executive authority. I was deeply fascinated by the manner in which Hamilton, oblivious to modern proprieties and ethics, simply contacted judges to discuss potential matters that may come before the courts, set up test cases, and the like, but did so in a way that was transparent (most of the time) to all parties who had an interest in the dispute. It is extraordinary reading, if again very dense, due to the technical nature of the topic. But in the end, there is a powerful public policy lesson Professor Brown provides, which is to answer definitely and fully, the charge that the Administrative State only began because of those Commie New Dealers packing the Courts with Frankfurter and Jackson types who undermined the "real" Constitution.
Kavanaugh must be confronted and if possible stopped. And he and his band of right wingers and libertarian law professors who back them more often than not must be confronted and challenged on nearly every aspect of their anti-Federalist and often Confederate jurisprudence. For when you listen to these folks, what you find is their citation to authority comes from the Gilded Age Supreme Courts, with their grafting of corporate capitalist doctrines into the Constitution, and their Confederate type demand for "limited" government when it comes to economic regulation. Yes, this is a continuing argument of Hamilton and Jefferson, as Claude Bowers wrote about (Bowers, born in Indiana, was highly influenced by the Southern historians' bias so prevalent in the mid-1920s, and, in his otherwise wonderful book, which still reads great, sided mostly with Jefferson). But this debate is one where Hamilton mostly won in fact, not necessarily theory, and it remains a dispute where we, who are true Federalists in its best, not elitist and player versions, must be vigilant. The irony of American history is Federal authority gave us as citizens more rights, particularly those who are "minorities." Our Founders, looking at us today, would tell us, don't argue as much over the past as simply choose better representatives for Congress and President, and have them choose better Supreme Court justices. Still, we need to make sure what we assume is true of the past is in fact true, and what we see, in this analysis here, is a lot of people sure missed the main point of the Founders (remember Jefferson was a soft Federalist and largely anti-Federalist from the start and was not at the Constitutional Convention, while Adams was not there, but certainly there in spirit in terms of the structure and language of the U.S. Constitution). The ultimate answer is the burden of posterity is on us, not the Founders. The burden is not on those in the past, but those in the present, in order to preserve the future.
*Yes, yes, I know how Madison retreated a bit from his language in Federalist Paper no. 10 in the center of the ratification debates in the last portion of Federalist Paper no. 41, but even there, the way such people today use the phrase "enumerated powers" is to wrongly read out the ability of the federal government to do anything with respect to New Deal type and social democratic type legislation. If one carefully reads Federalist Paper no. 41, Madison is saying the first paragraph in Article I, Section 8 means Congress has broad power to "raise money for the general welfare" in that first paragraph of the Article I, Section 8. When Madison goes on about the later "enumerated" subordinate clauses, he is talking about that in the context of Congress not destroying the "freedom of the press" as the one example he had just given. He is not taking back what he said in Federalist Paper no. 10 about regulation of various economic interests.
Oh, and let's ensure we know the context in which Madison was writing Federalist Paper no. 41: Madison was becoming deeply concerned, in January 1788, that New York delegates were so anti-Constitution ratification that the white males over 21 with property were not going to ratify the Constitution. An anti-Federalist, likely attorney Robert Yates writing under the name Brutus (Madison, Hamilton, and a little of Jay wrote under the pseudonym, Publius), wrote in what is called Brutus #6 that the Constitution had no limits on congressional authority, which is not much different than Madison was arguing in Federalist 10, though Madison was of the view that the more factions, the less likely people such as Bernie Sanders (just using a modern name for the then angry farmers upset at creditors) would be able to get legislation through to upset the economic elite. Madison 41, published Jan 19, 1788, was an answer to Brutus 6, published in December 1787. Madison is trying to limit what he earlier said, and near the end of 41, forgets what he wrote in 37 about the ambiguity of the Constitutional language. The irony of course is, when Madison is in Congress in 1789, and he is successfully pushing for removal of the word "expressly' from the 10th Amendment, to ensure the amendment is merely declaratory, Madison said, in a House speech (August 18, 1789): "...(I)t was impossible to confine the Government to the expertise of express powers; there must necessarily be admitted powers by implication, unless the Constitution descended to recount every minutia." Madison again successfully had the word "expressly" removed from the 10th Amendment, which meant the amendment could not say when federal power ended and what was then reserved to the States or the People. Since then, various Supreme Court decisions, when mentioning the 10th Amendment, have declared it "declaratory" meaning it has no practical application for any delineation between federal and state powers.
