The Genuine Article

September 08, 2009

The Genuine Article

Austin Bramwell says that I argue, “€œthe Constitution grants the Federal government [sic] a handful of limited powers, but leaves the states free to govern as they like.”€ He adds that I assert, “€œnobody who actually reads the Constitution could possibly conclude otherwise.”€ According to Bramwell, I make this claim in my books and in “€œmany online articles.”€

If, as he thus tacitly claims, Bramwell had actually read my books, he would know better. Not only do I not claim “€œnobody who actually reads the Constitution could possibly conclude otherwise,”€ but I go to great lengths in The Politically Incorrect Guide to the Constitution to explain why products of law school mis-education like Bramwell will often conclude otherwise. Such poor souls are taught that the U.S. Constitution gives the Federal Government unlimited power from the first session of Con. Law I. Among the results of this indoctrination, as Tom Woods and I note at book length in Who Killed the Constitution? is a bipartisan consensus that the Federal Government is really an unbounded national government.

In American law schools today, one is subjected to reading in “€œconstitutional law,”€ the body of case law purportedly implementing the U.S. Constitution. In the opinions of Justices such as Douglas, Warren, Souter, Kennedy, and numerous others, particularly William Brennan, one reads again and again the argument that Bramwell adopts: that the Constitution’s chief provisions have no fixed meaning. On the basis of this claim, which Bramwell seems to think original, the Brennans of the world have felt free to impose their own ever-evolving views of the “€œevolving standards of decency”€ of a maturing society.

Bramwell notes that I object to the liars”€™ enterprise of telling the American citizenry that the Constitution constantly evolves to require enforcement of intellectuals”€™ latest pet projects. He thinks there is some hypocrisy in my objecting. While I dislike the judges”€™ dishonestly foisting their views upon us in this way, after all, I must have my own ideological commitments, too, or else I would not object. Lying behind my objection is an ideological commitment.

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But Bramwell’s Gutzman-who-claims-to-have-no-principles is a straw man. I never claimed to have no principles. I believe in the idea, once highly fashionable in what then were thirteen colonies, of “€œgovernment by the consent of the governed.”€ If you have never heard of that idea, it may be that you, too, have subjected yourself to indoctrination in “€œconstitutional law.”€

Bramwell points out that Chief Justice John Marshall, in McCulloch v. Maryland (1819), held for a unanimous Supreme Court that the Necessary and Proper Clause gave the Congress very wide legislative latitude. Citing McCulloch on behalf of the idea that the Constitution created a Congress with virtually unlimited powers is what one expects from products of “€œconstitutional law”€ education; aspiring lawyers read Marshall’s ex cathedra pronouncement in their first year of law school, and they accept it unthinkingly.

Contrast James Madison’s response on first reading Marshall’s opinion.  Madison knew a thing or two about the Constitution’s meaning, since he had been the chief instigator of the Philadelphia Convention that drafted the Constitution, the prime author of the Constitution, the foremost proponent of the Constitution’s ratification in Virginia and the country at large, and the main draftsman of the Bill of Rights (including the Tenth Amendment).  Thinking back to his campaign to secure ratification, Madison wrote of McCulloch that “€œthe avowal of such a rule would … have prevented [the Constitution’s] ratification.”€

Consider that again:  If the people had known that the Supreme Court was going to hold that Bramwell is correct and Congress’s powers aren”€™t limited by the Constitution, Madison said, the Constitution would not have been ratified.

Madison was right, and not only in regard to Virginia. To my knowledge, in New York, South Carolina, North Carolina, Massachusetts, and, most significantly, Pennsylvania, besides Virginia, Federalists were at pains during the ratification campaign to say that the Federal Government would have only a few powers, with the rest being left to the states.  The chief argument on this ground in Pennsylvania came from Framer James Wilson, whose October 6, 1787 speech to that effect was the most widely reprinted and discussed of any argument for ratification made during the entire contest.

In the Virginia Ratification Convention, the notion that Congress would have only a few enumerated powers underlay the report of a ratification instrument made by a five-man committee appointed for the purpose.  It was repeatedly explained, and with increasing annoyance as the Anti-Federalists seemed not to “€œget it,”€ by the Federalists”€™ chief spokesman, Governor (and Philadelphia Convention Framer) Edmund Randolph.

In Randolph’s words, Congress was going to have only the powers that were “€œexpressly delegated.”€ George Nicholas, the ratification instrument committee’s other spokesman, made the same point. Nicholas also said that Virginia was to be as one of thirteen parties to a compact in ratifying the Constitution and that its understanding in doing so would bind the Federal Government ever after, as if the Constitution were a contract. Sitting silent through this explanation were the committee’s other three members, two of whom were James Madison and … John Marshall.

So how could Marshall have said the opposite 31 years later? Charitably, perhaps he forgot. More likely, because he knew he could get away with it, and that is what he wanted to do.

Another ground for the notion that Congress’s powers are limited by the Constitution comes from the common law. The powers of Congress are listed in Article I, Section 8.  Under the English legal maxim that “€œwhatever is not included is excluded,”€ that list was exhaustive. This maxim was much discussed during the ratification debate, and not only in relation to the powers of Congress:  Anti-Federalists wanted a bill of rights, and Federalists initially responded by saying that since whatever is not included is excluded, to affix a bill of rights to the Constitution would be dangerous.

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Thus, Marshall knew perfectly well in 1819 that “€œcounsel for Maryland”€ in the McCulloch case had argued for the same reading of the Constitution that Federalists (including Marshall) had sold to the Virginia Ratification Convention.  He also knew, however, that people like Austin Bramwell, while they might claim to have read history (the foregoing is in my books, concerning which Bramwell claims expertise), likely would really only have read what the Court said in McCulloch. They would buy the lie out of ignorance.

Bramwell elsewhere in his attack on me distinguishes between the “€œmeaning”€ of the Fourteenth Amendment and “€œthe alleged intentions of those who wrote and ratified it.”€ This is a common distinction among lawyers who want to concede unlimited authority to some instrumentality, agency, or branch of the Federal Government. A provision’s meaning, they say, is not the same as what the people intended; rather, legal meaning changes from time to time as society (meaning judges) becomes more enlightened (as, in their opinion, they constantly do). Yet, the equation of a provision’s meaning with the intention of its enactors runs through American law. So, for example, probate courts, in administering wills, attempt to give effect to the intentions of testators.  Courts in enforcing contracts attempt to effect the intentions of the parties. Treaties”€™ meaning depends on the understanding of the signatory nations.

And when it comes to constitutions, as Thomas Jefferson wrote, the federal Constitution should be enforced “€œaccording to the true sense in which it was adopted by the States, that in which it was advocated by its friends.”€ In other words, according to the original understanding.

Again, if Bramwell had read my books, as he seems to claim to have done in the snippet of his article repeated at the top of this essay, he would know that Jefferson said this. One could provide numerous similar statements from the Founding. Indeed, what else could “€œgovernment by the consent of the governed”€ mean in regard to constitutional interpretation than enforcement of the original understanding?  After all, it was only to what they understood that the governed arguably consented.

Bramwell has a better idea: that judges should feel free to “€œinterpret”€ the Constitution in any way they like. Thus, for example, he argues that the Fourteenth Amendment’s meaning is “€œtotally opaque.”€ “€œNobody knows”€ what it means. William Brennan could not have put it any more clearly. If one ignores the history of a provision’s ratification, Bramwell-like, one can arrive at this conclusion about a lot of constitutional language. “€œEx post facto laws?”€ I don”€™t speak Latin, and so I don”€™t know. Following Bramwell, I cannot ask what it meant in 1788.  “€œHabeas corpus?”€ Totally unclear. “€œVeto?”€Search me. I guess we”€™ll have to trust to the likes of William Brennan and Austin Bramwell to invent useful new “€œinterpretations”€ from time to time. Alternatively, I could claim that the ban on ex post facto laws is a ban on federal budgets that omit to give $1,000,000 per year to me. That would be a less outrageous construction than some of the ones Bramwell is defending.

Any theory of the rule of law would hold a meaningless provision unenforceable. Anglo-American law traditionally has. Still, for Bramwell, as for Brennan, the Fourteenth Amendment’s supposed opacity makes it a bottomless well of judicial power:  judges can do anything they want when invoking the Fourteenth Amendment.

Not only is it uninteresting, but Bramwell’s position is plain silly. Of course one must ask what people at the time thought these provisions would mean before he can implement them. I don”€™t need to know Latin to know what habeas corpus is. And even a poor product of immersion in Brennanism can read Raoul Berger’s classic Government by Judiciary: The Transformation of the Fourteenth Amendment and learn what the Fourteenth Amendment means.

I noted in The Politically Incorrect Guide to the Constitution that legal training should not be confused with an education. I thank Bramwell for his essay in corroboration of my point.  He joins a slew of Straussians, neocons, liberals, and other devotés of unlimited government in providing that.

Given a choice between Bramwell’s position and Jefferson’s, count me a Jeffersonian adherent to the bedraggled old notion that, yes, the Constitution has a fixed meaning. Despite what Bramwell says, I know and have repeatedly written that the Jeffersonian position is defended by only a small minority of intellectuals. It was ever thus. 

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