September 21, 2009

[Editor’s note: see also rounds 1-3 of our debate on originalism, interpretation, and whether the Constitution actually means anything. Austin Bramwell, “Original Sins”; Kevin R. C. Gutzman, “The Genuine Article”; and Bramwell, “Best of Intentions.”]

Austin Bramwell began his first attack on me by saying that he had read my books. In his second, he quotes at length from Lysander Spooner, as if I were unaware of his argument. Yet, Tom Woods and I quote Spooner in the conclusion to Who Killed the Constitution? right before we observe that perhaps the history of America’s experiment with written constitutions proves that the idea is a failure. It may be that to expect government officials to exercise only limited powers simply because they have taken an oath to abide by written constitutions is unrealistic. Perhaps once the government has a monopoly of force, inherent human selfishness and self-regard will lead ineluctably to unlimited government.

Bramwell does not care about that. Not only does he boast of having invented a novel argument for unlimited congressional power under the Fourteenth Amendment, but he argues the irrelevance of the consent of the governed. What matters, according to Bramwell, is that the people be governed well.

In other words, do the trains run on time?

I have little to say about constitutions to someone who cares neither about the consent of the governed nor about limitations on government authority. Those are the only two principles underlying the American experiment in written constitutions. If you are uninterested in either idea, you may as well join Bramwell in saying that the Fourteenth Amendment has no meaning, and so Gutzman is wrong to insist that it (or, apparently, any other constitutional provision) does.

Laurence Tribe and William Brennan could not have said it any better.

This is what I meant when I said that Bramwell was merely parroting what he learned at an elite American law school.  He thinks I slighted his signal contribution to untethered judging, his universally unheeded theory about the Fourteenth Amendment. He asks me to help him locate others who have agreed with him, even offers to pay me to do so, and I respectfully decline. I tell him here and now, however, that I am certain without even reading it that it is no worse an argument than anything Justice Brennan deigned to emit.  I do not waste my time scouting out all of the idiosyncratic justifications for unlimited power, from Caligula to the present. They have contributed nothing to civilization.

On the other hand, Bramwell seemingly considers the many different iterations of Brennan’s “€œRule of Five”€ (With five votes, I can do whatever I want) offered up by Supreme Court justices from time to time to be worthy of serious attention.  He can go on Westlaw and count the number of times that Supreme Court opinions have included the phrase “€œevolving standards of decency,”€ and then return to tell us it is only three score.  Wow! Gutzman is wrong: Brennan and Company have not been guided solely by that slogan. But, of course, I never said that they had been. I pointed out that they have in many areas been guided only by their whims; “€œevolving standards of decency”€ is but one pithy way they justified themselves. Who cares that they cloak it in different garb in non-Eight Amendment contexts? I never denied it. I don”€™t care. It doesn”€™t matter.

One reason why I consider it unlikely that the U.S. Constitution can be resuscitated is that legal training is so unlike education. People like Bramwell, having paid good money for their JDs, consider themselves expert in constitutional history”€”even when, as in his case, they are not.

Consider the first-semester undergraduate or law school course in constitutional law. In the first session, students typically learn the meaning of Marbury v. Madison (1803), the Supreme Court decision laying claim to the power of judicial review. In the typical second session, students meet McCulloch v. Maryland (1819), in which Chief Justice John Marshall adopted Alexander Hamilton’s argument for nearly unlimited congressional power under the Necessary and Proper Clause.

Bramwell tells us that I am wrong to say that McCulloch held that the Necessary and Proper Clause empowered Congress to charter a bank. He tells us that the holding was based on the Tax and Spending Clause. His first error lies in thinking that Marshall says that that clause (along with the several others to which Marshall refers) empowers Congress to spend without reference to the objects of the spending, when Marshall’s opinion first takes great pains to say that the object of the spending is appropriate under the Necessary and Proper Clause.

R. Kent Newmyer, in the leading scholarly Marshall biography, says that “€œthe question at hand”€ in McCulloch was “€œWhat, in short, was the meaning of “€˜necessary and proper?”€™”€  In a different work, his classic account of the Supreme Court under Marshall and his successor, Roger B. Taney, Newmyer says of McCulloch that, “€œThe scope of congressional power, then, came to hang on the meaning of “€˜necessary.”€™”€ The editor of Marshall’s papers, Charles Hobson, in his Marshall biography notes James Madison’s objection that McCulloch broke down the Constitution’s intended link between the Necessary and Proper Clause and the enumeration of congressional powers in Article I, Section 8. Marshall’s opinion in the case is very complex, but Hobson summarizes the key section by saying that Marshall first enunciated a rule for applying the Necessary and Proper Clause, and then applied that rule to the facts at hand to arrive at his holding.

You can believe Bramwell, or you can believe Newmyer and Hobson. Or, if you don”€™t have time to read Newmyer and Hobson, you can sit in on the second session of an introductory course in constitutional law. I cannot believe that I am debating this.

Bramwell notes that I insist on Jefferson’s standard of constitutionalism: that a constitution be interpreted “€œaccording to the true sense in which it was adopted by the States, that in which it was advocated by its friends.”€ He then provides extensive quotations from Alexander Hamilton and James Madison to the effect that one must not, as Bramwell puts it, “€œlook into the intention of those who wrote it.”€

Apparently Bramwell does not know the difference between the Philadelphia Convention that wrote the Constitution and the state conventions that ratified it. I agree with Hamilton and Madison that one should not ask what the Philadelphia Convention intended, even as I agree with Madison and Jefferson that one should ask what the ratification conventions understood. The ratification conventions did not write the Constitution, but they were the ones who gave it effect. They were, in a constitutional sense, the legislators whose understanding counts. Their understanding was shaped by what the Constitution’s friends said of it while it was being considered for ratification, as Jefferson said.

If, as Bramwell implied in his first piece, he had read my books, he would know that. If, as Bramwell implied in his first piece, he had read my on-line articles, he would know that. If he had simply read the Constitution itself, he would know that.

He makes the same mistake when, under “€œIt is unclear whose expectations one should consult,”€ he says, “€œWe can start with the handful of men who actually drafted the Constitution’s provisions.”€ Why would we do that?  Not for any reason I know. They had no power to make law. One might as well interpret my will by asking not what I meant, but what my lawyer meant. Perhaps Bramwell sets up this straw man simply so that he can knock it down, but it seems more likely that he has confused the men who wrote the Constitution (whose opinions Hamilton and Madison called irrelevant) with those who ratified it (to whose understanding Madison, Jefferson, and I said one must look).

I realize that taking up all of Bramwell’s Brennan-/Tribe-/Douglas-like excuses for rejecting originalism in sequence is more than a typical reader will have patience to bear.  I don”€™t have patience for it either. What it comes down to is that Bramwell believes”€” indeed, has said in his two Takimag pieces asserting that I don”€™t understand the Constitution”€”that the Constitution’s text has no meaning, that the consent of the governed is a non-issue, and that arguments for unlimited government power are worth inventing. If he feels bound to cloak that position in a lot of mistaken assertions about my having erred, one should not lose sight of the forest for the trees.

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Bramwell says that Alexander Hamilton ranks with James Madison as one of the two greatest Framers. He is right only in the sense that Madison was among the five greatest presidents: Madison was a great man, but a sub-par president. So great was his non-presidential career overall that he was among the greatest of presidents. Similarly, Hamilton was a very significant man (largely in a negative sense), but a virtually insignificant Framer. His contribution to the Philadelphia Convention lay mainly in spelling out what kind of elected monarchy he preferred, leaving the Convention for several weeks, returning to see, and to say, that the draft Constitution was unlike what he wanted, and signing it anyway. Yet, so significant was Hamilton overall that he was among the most significant of the Framers. One doubts that this is what Bramwell means in calling Hamilton a “€œgreat Framer.”€

Bramwell refers to various tendentious “€œscholars”€ and judges whose “€œtheories”€ of and “€œapproaches”€ to the Constitution always lead them to the desired outcomes. (Bramwell admires them.) Here, one is reminded of the meaning of the phrase “€œlaw office history.”€  I explained in The Politically Incorrect Guide to the Constitution  that lawyers”€™ education about the Constitution consists almost exclusively of reading judicial opinions and, perhaps, some bits of The Federalist, and that this was inadequate. It can leave one thinking that McCulloch is unquestionable, say, or that Alexander Hamilton’s was among the most significant contributions to the Philadelphia Convention. It can leave one unaware of the difference between the convention that wrote the Constitution and the ones that enacted (ratified) it. It can leave one certain that the Constitution has no meaning. And, in the process, it can make one certain that he knows all there is to know about the subject.

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That is why I have often told people that given a choice between studying “€œconstitutional law”€ and just reading the Constitution, they will have a better idea what the Founders established if they take the latter option.

I doubt that many people outside the population of other alumni of elite law schools share Bramwell’s view that the Constitution is meaningless and that arguments need to be devised for Congress to exercise more power. The chief point of my popular-audience books is to call the politicians”€™ and judges”€™ adherence to the Bramwell/Brennan view to people’s attention, and to distinguish between their view and the one to which the people actually assented. Bramwell says that few people share my criticism of the current state of “€œconstitutional law.”€ To judge by the response to my books, that number is growing.  Yet, even if I were alone, the Jeffersonian approach to the Constitution would still be right.


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