Con Law Crash Course Recap

The following post was submitted by a member of IBRL:SD as a summary of today's "Con Law Crash Course."

Crash Course 1: Federalist Papers and Separation of Powers

What follows is a quick recap and explanation of our fist experimental crash course in the Bill of Rights and constitutional law. Please send all questions on the material to ermola@ wm.edu. Also, we are seeking feedback on the session so we can make sure our future sessions cover the material you are interested in, so please send us your feedback and suggestions (to the same email as above).

We will be posting the recording of the session soon.

Deep History

In the beginning there was the Magna Carta. Well, not exactly. The Magna Carta was a document that a collection of rebellious Barrons in old England forced the King to issue, which set certain, though very few, limits on the power of the King. Effectively, this was the first limit on the power of the government and the origin of the idea that even the state is subject to the law.

Over the years the Magna Carta was reissued, reaffirmed, and changed, but the concept of limited government grew in philosophical understandings of how good government operated. Philosophers like John Locke, Thomas Hobbes, Rousseau, and Montesquieu picked up the concept in their various treatises on government. The result was a highly theoretical understanding of the relationship of government to the people that influenced those involved in constructing the U.S. Constitution. After the drafting of the U.S. Constitution (a very long story for another time), the debate among the states as to whether or not to ratify it began. With authors from around the country, particularly in the New England area, writing articles opposing ratification, Alexander Hamilton, James Madison, and John Jay set out to rebut the arguments presented.

Who Cares?

At the beginning of our session I explained, very briefly, some interpretive philosophies including originalism, and specifically, that the most popular form of originalism looks for the original public meaning of the words. Clearly, a series of papers written by those involved in creating the constitution, which set out to explain to the people what the constitution meant, would be highly influential and therefore serve as a useful contemporary tool for discerning the meaning of the constitution. And, for theories that focus on coherence in the law, and principles expressed in the Constitution, articles written by those who claimed insight into the document could, at the very least, put forward a consistent vision of what the purposes of the document were.

As history would have it, the papers have generated more debate than closure on the meaning of the Constitution. James Madison argued that the Constitution should be read carefully and deliberately, such that the limits on government were expressed in the words used. Hamilton proposed a less strict understanding of the words, in the sense that he expected those words to bear more ordinary meaning and to be understood as a whole, whereas Madison expected the words used to bear technical meanings, foreclosing all others. Of course, the debates were much more complicated than this but, in a broad sense, these are the reasons that the debate continues to today.

The Constitution Itself

In the most simplified understanding, the Constitution has 3 articles dealing with the branches of government, a fourth setting out rules for governance among the states, a provision for adoption, and a clause making it the “supreme law of the land.”

Article I – The Legislative Power.

Section 8 – enumerated powers of congress, including

· Taxes to pay debts, and provide defense and general welfare of the nation

· Regulate interstate commerce

· Coin Money and punish its counterfeit

· Fix standards of weight and measures

· Establish post offices and post roads

· Granting patents and copyrights

· Create courts under the Supreme Court

· Define and punish international law

· Declare War

· Raise and support armies, a navy, and to regulate them

· To make laws for territories and the District of Columbia

Section 9 – explicit limits on Section 8, including the Habeas Corpus clause, ex post facto clause,

Article II – The Executive Power

· Shall take care that the laws be faithfully executed

· Shall be commander in chief

· Make treaties and appointments with advice and consent of the senate

Article III – The Judiciary

· Extends to cases and controversies

· Sets out categories of jurisdiction which may be regulated by congress

How it Applies

For example, all agreed that the Constitution set out to create a government of separated powers, which would harness the natural urges of people to consolidate power and prestige. So long as ambitious (though well meaning) people were made to compete with each other, the people could benefit from the enthusiasm of the contenders for as long as it situated them. However, the exact contours of the powers set out became a hot topic debated among those involved in writing the federalist papers.

The Federalist Papers

Madison, envisioning a minimalist government which would thereby lack the power necessary to destroy liberty, saw the enumeration of certain powers in the Constitution as the implicit exclusion of all others (a principle later endorsed by the judiciary):

“Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, [arguing that] ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.... Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it … A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, [it would be odd to contain in the terms] ‘to raise money for the general welfare.’ But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? …

For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” – Madison, Federalist #41

So Madison saw a government where the Congress was (more or less) permitted only to carry out the powers enumerated in Article I Section 8. However, the Constitution had been created in large part because the Articles of Confederation failed to provide the power in the national government necessary to keep order within the country. One of the responses to that problem was the “Necessary and Proper clause,” here explained by Hamilton:

“a power … must be a power to pass all laws NECESSARY and PROPER for the execution of that power; … [T]he same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.” – Hamilton, Federalist Papers #33

Helpful, right? While the Necessary and Proper clause was meant to give greater power to the federal government than it already had, the degree of necessity or propriety were essentially left up in the air. Imagine, “Necessary” could mean something like a least-restrictive-means test, and “Proper” could mean something like an empirical test that all laws, on balance, have to create more good than harm. When the two are read together, ie., Necessary and Proper, that would put in place a restriction on all laws more burdensome than what we impose today on those which toe the line on our most cherished rights.

Meanwhile, Hamilton argued the President should be the repository of vast powers to see that the laws be faithfully executed:

“[A]ll men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention?

The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.” - Hamilton, Federalist #70

To the disagreements between Madison and Hamilton on the most important questions in the Federalist papers is added the problem that they were making an argument to the people and therefore were less concerned with spelling out the workings of the Constitution in the kind of detail necessary for an all inclusive theory of government than they were with assuaging the concerns of the people who would have to live under it (I am not suggesting errors of omission, only that if the authors wanted to explain how every detail of the Constitution was to operate they would need more than 85 parchments, as well as a degree of omniscience).

Where it Ended Up

The two debates that were of the most importance were, unsurprisingly, the extent of federal power, and the degree of separation to which it was subject. Later cases would fill out those concepts, but to skip to the end:

Is the Necessary and Proper clause a limit on the powers granted to Congress: Not really. Gonzales v. Raich, just 3 years ago said that Congress was allowed to regulate medical marijuana because its mere existence, without any evidence of interstate transportation, was a necessary and proper law to carry into effect Congress’ power to regulate interstate commerce. The litigants should have seen it coming; Wickard v. Filburn in 1942 had said almost the same thing about growing wheat. The only difference being that the market for marijuana was illicit.

The degree of separation of powers: Well, the President is generally free to not enforce the laws, thought it is not entirely clear whether that is a constitutional power or the absence of any power to check it, but that’s where it stands . The branches of government are allowed to create regulatory commissions that are neither legislative nor executive nor judicial, but a little bit of all three, just so long as there is “bicameralism” (passed by both houses of congress) and “presentment” (the President has a chance to veto it, even if he doesn’t actually do anything). And besides courts under Article III, there are Article I courts, or legislative courts, the limits of which I will not venture to explain here.

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