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30 posts from September 2021


Originalism and Citizens United (Again)
Michael Ramsey

Dean Erwin Chemerinsky (Berkeley) has an op-ed in the L.A. Times calling the Supreme Court Justices "partisan hacks."  At Volokh Conspiracy, Josh Blackman and Jonathan Adler have some sharp responses.  I want to focus on a relatively small part of the op-ed that repeats and amplifies a mistaken talking point.  Dean Chemerinsky writes: 

In 2010, in Citizens United vs. Federal Election Commission, the court ruled 5 to 4 that corporations can spend unlimited amounts to get candidates elected or defeated.

Business interests, which overwhelmingly favor Republican candidates in their campaign expenditures, outspend unions by more than 15 to 1. There is no plausible argument that the original meaning of the 1st Amendment included a right of corporations to spend unlimited amounts in election campaigns. Neither political expenditures nor corporations, as we know them today, even existed at the founding of this country.

To be clear, the issue in Citizens United was whether corporations (and labor unions and non-profit associations like the ACLU) could spend money to express their opinions about candidates.  I think there most certainly is a "plausible argument" that the original meaning of the First Amendment included such a right.

(1) "Political expenditures" in the sense of spending money to express views of candidates certainly existed in the founding era; newspapers, for example, routinely did it.  To say that an individual cannot spend money to express a view (e.g., by buying advertising, printing a circular, or renting an auditorium) effectively silences that person.  Among other things, the government could prohibit a person from spending money to print a newspaper.  It seems quite plausible to me that the original meaning of the First Amendment protected such an individual right.

(2) I don't think Chemerinsky thinks otherwise.  His real objection to Citizens United seems to be with extending the free speech right to corporations since the modern version of the corporation didn't exist in 1788.  But that's not a conclusive originalist argument, any more than the fact that the internet didn't exist in 1788 means that the First Amendment doesn't apply to the internet.  The interaction of a clause's original meaning with new technology is sometimes a difficult one, but no originalist thinks that the Constitution applies only to things that existed at the founding.  (Justice Scalia in D.C. v. Heller called such an argument "bordering on the frivolous".)

(3) It's worth noting (though not conclusive for original meaning) that in other areas of constitutional law we routinely assume that corporations are entitled to constitutional protection.  Corporations cannot have their property taken without just compensation and due process of law under the Fifth Amendment.  Newspapers organized as corporations (such as the L.A. Times) cannot be ordered what to print and not to print under the freedom of the press, nor can they be sued for libel without the showing required under New York Times Co. [a corporation!] v. Sullivan.  Churches organized as corporations cannot be denied their right to free exercise.  Indeed, in Austin v. Michigan Chamber of Commerce (the case allowing restrictions on corporate speech expenditures, before Citizens United overruled it), Justice Thurgood Marshall writing for the majority didn't deny that corporations have free speech rights; he concluded that those rights were not infringed by the challenged restriction because the government had shown a "sufficiently compelling rationale" in the restriction to satisfy the First Amendment. 

(4) In any event, the debate over whether corporations themselves have constitutional rights is beside the point.  Corporations are fictional entities; they have no existence apart from their shareholders.  It's the constitutional rights of the individuals who are shareholders that is at stake.  The argument is in effect that the shareholders must give up their constitutional rights in order to act through a corporation.  Perhaps this is constitutional, but that seems at least open to question.  So far as I'm aware, there wasn't any material precedent from eighteenth century English practice or free speech theory suggesting that the government could restrict speech based on a person's occupation (which seems like the nearest eighteenth century analogy).  Moreover, corporations existed in the eighteenth century (albeit in somewhat different form), and I'm not aware of conclusive evidence that they (or rather their shareholders) lacked rights.

Thus the originalist argument for Citizens United is, in oversimplified form, (a) we've always assumed that corporations have rights; (b) regardless, corporations are associations of individuals, and individuals have rights; (c) there's no evidence from the founding era suggesting it would be appropriate to conclude that individuals lose those rights when they associate as a corporation.  Is this absolutely conclusive? No, but recall that Chemerinsky's claim is that there is "no plausible argument" for Citizens United based on the original meaning.  I think the argument above is at least plausible.  


Josh Blackman & Seth Barrett Tillman: The Unresolved Threshold Issues in the Emoluments Clauses Litigation
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) and Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) have posted The Unresolved Threshold Issues in the Emoluments Clauses Litigation: The President Has Three Bodies and There Is No Cause of Action for Ultra Vires Conduct (Georgetown Journal of Law & Public Policy, Vol. 19, No. ___, 2022) (46 pages) on SSRN.  Here is the abstract:

Shortly after President Trump’s January 2017 inauguration, he was sued for violating the Foreign and Domestic Emoluments Clauses. The plaintiffs alleged that Trump’s acceptance of profits from foreign and U.S. state governments violated these once-obscure provisions of the Constitution. We filed amicus briefs in these cases, and made two arguments that had implications for separation of powers jurisprudence.

First, the Plaintiffs erred by suing President Trump in his “official capacity.” Under settled case law, a government officer violates the Constitution in his official capacity if—and only if—a government policy or custom must have played a part in the violation of federal law. Still, the Plaintiffs never alleged that President Trump acted pursuant to any government policy or custom. Nor did the Plaintiffs allege that Trump acted “under the color of law”—a precondition for pleading an individual-capacity claim. Rather, the case concerned alleged conduct that President Trump took personally. With respect to the Emoluments Clauses, the President has three bodies and can be sued in three distinct fashions: [1] an official-capacity claim involves a government policy or custom; [2] an individual-capacity claim involves action taken by a government officer under the color or law; and [3] a personal claim involves private conduct, absent state action.

We identified a second jurisdictional problem. The Plaintiffs argued that the federal courts had equitable jurisdiction to halt ultra vires action by a government officer. To support this argument, the Plaintiffs contended that federal district courts could issue an injunction—an equitable remedy—against the President. This argument conflated equitable jurisdiction and equitable relief. A plaintiff cannot establish equitable jurisdiction merely by seeking equitable relief. Rather, the plaintiffs must invoke a traditional equitable cause of action that was judicially recognized by 1789, or a cause of action that was created by Congress or the courts. The Supreme Court has not recognized a free-floating equitable cause of action to challenge ultra vires conduct by government officers.

Ultimately, the Supreme Court did not settle these issues, or any others presented by the Emoluments Clauses litigation. After President Biden’s inauguration, the Supreme Court vacated the lower-court judgments that ran against the President, and ordered the courts of appeals to dismiss the cases as moot.

As the Emoluments Clauses litigation fades in the rear-view mirror, this Article offers a retrospective of these two unresolved threshold issues. Our article also provides some guidance on how to litigate future allegations that the President personally violated the Constitution.


Nicholas Kahn-Fogel: Standing in the Shadows of the New Fourth Amendment Traditionalism
Michael Ramsey

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Standing in the Shadows of the New Fourth Amendment Traditionalism (Florida Law Review, forthcoming) (42 pages) on SSRN.  Here is the abstract: 

In the past decade, the Supreme Court has revived an originalist, property-based approach to evaluating Fourth Amendment problems. The Court has used this approach to broaden its understanding of the sorts of governmental conduct that qualify as Fourth Amendment searches. So far, however, neither the Court nor scholars have offered a comprehensive assessment of the implications of this new Fourth Amendment traditionalism for what is known as Fourth Amendment standing, a doctrine reflecting the Court’s longstanding determination that only one whose own Fourth Amendment interests are implicated by government conduct is entitled to raise a Fourth Amendment challenge to such conduct. This Article, which provides the first sustained treatment of the issue, concludes that the logical consequence of the new traditionalism will be a significant expansion of the class of people entitled to make Fourth Amendment claims, including in cases involving the kinds of quotidian, physical searches and seizures that have long been the focus of complaints about law enforcement abuse of vulnerable communities.


Bill Watson on Literalism in Statutory Interpretation
Michael Ramsey

Bill Watson (Cornell University - Philosophy, Ph.D. candidate) has posted Literalism in Statutory Interpretation: What Is It and What Is Wrong with It? (2021 U. Ill. L. Rev. Online 218 (2021)) (13 pages) on SSRN.  Here is the abstract:

In two recent decisions — Bostock v. Clayton County and Niz-Chavez v. Garland — a majority of the Supreme Court claimed to apply a textualist approach to statutory interpretation, and a dissent charged the majority with applying “literalism” instead. But what is literalism and what, if anything, is wrong with it? This Essay borrows a few ideas from the philosophy of language to try to pin down a more precise sense in which the majority opinions in Bostock and Niz-Chavez were arguably literalistic. The opinions may have been literalistic in the sense that they failed to consider how context pragmatically enriched what the relevant statutes asserted by fixing the operative sense of a polysemous word. If that is right, then one problem with such a literalist approach is that it pushes controversial interpretive choices underground rather than giving a linguistic (or any other sort of) argument for those choices.


Alexander Loehndorf: Old Constitutions and Originalism's Normative Foundations
Michael Ramsey

Alexander Loehndorf (McMaster University) has posted In Originalism's Stead: Old Constitutions and Originalism's Normative Foundations (109 pages) on SSRN.  Here is the abstract:

This thesis concerns a philosophical analysis of originalism in a context that has not yet received sufficient attention: in the context of old constitutional regimes. Through this lens, I argue that originalism becomes something lesser in that both the normative justification and legitimacy originalism once held begins to withdraw from the theory’s principled commitments. In other words, the nature of old constitutions begins to reject a normative argument for an originalist approach. The thesis bases this analysis on one originalist theory in particular for the sake of brevity: Lawrence Solum’s public meaning originalism. It proceeds through two avenues of argument: originalism as it relates to 1) historical analysis and the interpretation-construction distinction and 2) stare decisis and democratic legitimacy. Taken together, these avenues point to originalism’s fading normative justification and legitimacy in light of the challenges that old constitutions and their characteristics pose for the judicial philosophy.


Eric Segall on Justice Kagan and Living Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Labels Matter: How Professor Jack Balkin Snookered Justice Kagan and Others to Fuel Faux Originalism.  From the introduction:

In 2007, Professor Jack Balkin of Yale Law School shocked the academic world by arguing that Roe v. Wade could be justified under an "originalist" approach to constitutional interpretation, and that living constitutionalism and originalism were opposite sides of the same coin. Balkin would later expand that article into a book called, of course, "Living Originalism." 

I want to be crystal clear on two points before moving forward. Balkin's descriptive accounts of constitutional law (which rely considerably on social movements) are as sophisticated, interesting, and accurate as any I have ever read. However, his labeling of his theories as "originalism" has not been helpful and has clouded rather than clarified constitutional debates. 

In his article on abortion and original meaning, published several years before Elena Kagan's confirmation hearing in 2010, Balkin wrote the following: "When the text is relatively rule-like...the underlying principles cannot override the textual command.... But where the text is abstract, general or offers a standard, we must look to the principles that underlie the text to make sense of and apply it." 


Balkin's "originalist" turn was much discussed, debated, and conferenced at the time inside the legal academy. When the piece came out, Elena Kagan was Dean of Harvard Law School and would continue in that role for a couple more years. I have no personal information that she was aware of Balkin's work, but if she wasn't, that would be quite surprising. 

Here is what Kagan said at her confirmation hearing when asked about originalism (this link is to a video clip):

“Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do. In that way, we are all originalists.”

Kagan's "text" and "principle" approach (Balkin's words in his scholarship) to constitutional interpretation is quite similar to Balkin's theory. Let's give Kagan credit for understanding that allowing judges to use broad principles underlying most of the Constitution's imprecise provisions results in the kind of living constitutionalism that originalists have long said they deplored. Nevertheless, her uttering of that sentence--"In that way, we are all originalists"--unlike Balkin's work, reverberated both inside and outside the legal academy in ways I just can't believe she anticipated (she was testifying in front of the Senate which at the time was controlled by Democrats so she knew she had the confirmation all but locked up). 

Justices Gorsuch and Kavanugh both cited Kagan's statement about originalism in their confirmation hearings to great rhetorical effect. But Kagan's statement has been used (read manipulated) in many places before and after those confirmation hearings, almost always by folks who want to pretend that originalism is our law or should be our law. I don't believe, though I concede it is rank speculation, that Kagan would have made that statement without Balkin's scholarship explicitly tying liberal results like Roe to originalism.

And in conclusion:

As I previously wrote on this blog, far from "we are all originalists," we are in fact all legal realists now, though politicians, pundits, academics, and especially Supreme Court Justices keep trying to hide that fact, as Eric Posner suggested. Kagan's misleading sound bite, along with Balkin's attempts to transform living constitutionalism into originalism, have just made it more difficult to see SCOTUS clearly. 

Labels matter, and here so-called liberal originalism confuses and obfuscates how judges decide constitutional cases, all to the effect of helping the Republican Party. In this sense, as Mark Tushnet likes to say, "law is politics all the way down," at least in the constitutional sphere, where so many of us reside.


Christine Kexel Chabot: Interring the Unitary Executive
Michael Ramsey

Christine Kexel Chabot (Loyola University Chicago School of Law) has posted Interring the Unitary Executive (50 pages)  on SSRN.  Here is the abstract: 

This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes a single President, it leaves open many questions about the officers who will necessarily assist the President in executing the law. Leading originalist scholars contend that Article II’s provisions vesting “the executive Power” in a single President and requiring her to “take Care that the Laws be faithfully executed” dictate a particular governmental structure: a “unitary executive” President with absolute power to remove (and thus control) all officers in the executive branch. An express presidential removal power appears nowhere in the text of the Constitution, and originalist proponents of a unitary executive have placed heavy emphasis on history. They claim that the Founding era never included independent regulatory structures designed to insulate executive officers from presidential removal and control. This Article refutes such claims and introduces a comprehensive historical record that earlier scholars have largely missed. My work establishes that independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington.

Unitary scholars’ failure to recognize the independent structure of the Sinking Fund Commission — a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress — is just the tip of the iceberg. Unitarians have also missed dozens of early statutory provisions that repeat non-unitary aspects of the Sinking Fund Commission’s structure and require independent actors to autonomously reinforce the President’s duty to take care that the laws be faithfully executed. By scouring every public act passed by the First Congress, my research brings to light independent regulatory structures that pervaded the Founding era. The First Congress repeatedly dispersed executive decisions amongst multiple officers who checked one another as well as the President. This body also repeatedly delegated control over executive officers as well as significant executive power to independent judges and lay persons whom the President could not remove. All of these laws belie the conventional originalist view that the Constitution vests “exclusive control over the exercise” of “executive power” in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.

I think it's not entirely true that "originalist proponents of a unitary executive have placed heavy emphasis on history." I would say that originalist proponents of a unitary executive have placed heavy emphasis on text, namely the Article II, Sec. 1 vesting clause, plus the 1789 congressional debates, with some support from subsequent history.  Nonetheless, the article should give proponents of a unitary executive some pause, if the history is indeed sharply against them.


Aaron Tang: The Originalist Case for an Abortion Middle Ground [Updated]
Michael Ramsey

Aaron Tang (University of California, Davis - School of Law) has posted The Originalist Case for an Abortion Middle Ground (52 pages) on SSRN.  Here is the abstract:

Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s ratification, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27- states claim is thus as forceful as it is arresting.

It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.

After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.

To be sure, originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground.

(Via How Appealing).

The paper's results, assuming they are correct, seem important but less methodologically conclusive than the paper suggests.  The originalist question is not what a majority of states did in 1868.  The question is whether access to abortion was a "privilege[ ] or immunit[y] of citizens of the United States" in 1868.  That question isn't answered only by counting up what states did at the time (although surely the more states that allowed an action to be prohibited, the less one would think that action was a privilege or immunity).  For example, even if most states did not have an income tax in 1868, that would not prove that a state income tax would violate a privilege or immunity.  Plus, 15 of 37 states is still a pretty big number (40%).

RELATED: In the Sixth Circuit's recent decision in Memphis Center for Reproductive Health v. Slatery, Judge Amul Thapar, concurring and dissenting, argues at length that the Roe/Casey framework is inconsistent with the Constitution's original meaning.  Among many other things, he says (footnotes omitted):

The [Roe] majority asserted that it “was not until after the War Between the States that [abortion] legislation began generally to replace the common law.” Roe, 410 U.S. at 139. Not so. According to one scholar, by 1849, eighteen of the thirty states in the Union had passed statutes limiting abortion. Eugene Quay, Justifiable Abortion–Medical and Legal Ethics, 49 Geo. L.J. 395 app. 1 at 447–520 (1961) (collecting statutes). At the end of 1864, twenty-seven of the Nation’s thirty-six states had such laws. Id. On the eve of the Fourteenth Amendment’s ratification, this number had risen to thirty states. Id.; see also Roe, 410 U.S. at 174–75 & n.1 (Rehnquist, J., dissenting) (noting that the number was thirty-six when including the territories). The tide continued to shift in favor of greater abortion restrictions during the Reconstruction Era. Of the seven states that lacked abortion restrictions in 1868—Delaware, Georgia, Kentucky, North Carolina, Rhode Island, South Carolina, and Tennessee—all but one adopted abortion statutes by 1896. See Quay, 49 Geo. L.J. 395 app. 1 at 447–520. And the last of those states passed its statute by 1910. See id. at 475–76.

(Via Ed Whelan at NRO Bench Memos.)

Professor Tang's paper is an important qualifier to these claims -- statutes "limiting" abortion are not necessarily complete prohibitions, and apparently sometimes they weren't.  It's important not to conflate these two claims (to be clear, I'm not suggesting that Judge Thapar does, just that it happens sometimes).  It's possible, as Professor Tang suggests, that Judge Thapar might be correct about the lack of an unlimited right to abortion in 1868 and yet there might have been a limited right to abortion.  But more fundamentally I agree with this point by Judge Thapar:

A right to do something because the state has not yet regulated it is quite different from a right to do something because the state cannot regulate it. Cf. PennEast Pipeline Co. v. New Jersey, 141 S.Ct. 2244, 2261 (2021) (“[T]he nonuse[] of a power does not disprove its existence.” 

UPDATE:  At Volokh Conspiracy, Josh Blackman has similar (but more extended) thoughts: The Fact That X States Failed To Criminalize An Act in 1868 Does Not Mean That Committing The Act Is A Fundamental Right.  From the conclusion:

What would it take to make the originalist case that the right to abortion is "deeply rooted," and was considered fundamental in 1868? Perhaps if it was mentioned in the same breath as other well-known fundamental rights: the freedom of speech, freedom of conscience, liberty of contract, the right to keep and bear arms, and so on. We can cite chapter and verse to support these other rights. But simply looking to states that failed to criminalize an act is not enough.

COMMENT BY ANDREW HYMAN:  When a right is not deeply rooted in history, that is an excellent reason to refrain from constitutionalizing it via the Due Process Clause.  But when a right is deeply rooted, it still must be a procedural rather than substantive right in order to have any plausible constitutional basis under the Due Process Clause.  As Justice Byron White wrote in a 1977 dissent, “Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.”  The Court ought to acknowledge that simple truth stated by Justice White, and then conform to it.  As for the substantive provisions in the Bill of Rights that have been incorporated against the states, using the Due Process Clause for that purpose was simply wrong; those enumerated substantive rights should have been incorporated via the Privileges or Immunities Clause whose plain meaning instructs the courts to apply against the states those rights of U.S. citizens that already apply against the federal government.


John Grove Reviews Max Edling's "Perfecting the Union"
Michael Ramsey

At Law & Liberty, John G. Grove:  America's Federal Settlement (reviewing Perfecting the Union: National and State Authority in the US Constitution by Max Edling (Oxford Univ. Press 2020)).  From the introduction: 

Max Edling’s recent book, Perfecting the Union, is a succinct, valuable account of the framing of the Constitution with an eye toward the division of power between the federal and state governments. It draws heavily upon, and might even serve as a useful introduction to, the body of scholarship he refers to as the “Unionist” interpretation of the American founding. The Unionist view stresses the importance of the theory and practice of federalism to understanding both the American Revolution and the framing and adoption of the Constitution.

The Unionist view shows how central the debates over the imperial federal structure were to the American Revolution, which pitted the newly dominant paradigm of parliamentary sovereignty against the rights of colonial assemblies which had been nurtured by the metropole’s “salutary neglect.” Independence, then, brought forth on this continent a new problem: how would the thirteen “free and independent states” order their relationship with one another? What kind of federal union could capture the best parts of the old colonial arrangement—unity and strength abroad, and self-government at home—without the monarchical loyalty that had structured the old order?

The Federal Compact

Edling believes that to understand the Constitution, we have to understand the long public deliberation that took place on these questions, running from the Articles of Confederation, through the various failed attempts at reform in the 1780s, the Philadelphia convention, the state ratification conventions, and the first Congress. The upshot of Edling’s account is that the Constitutional convention was prompted almost entirely by concerns about international and interstate relations, and the document therefore produced a national government that possessed authority almost entirely limited to these areas. This limited remit was a direct holdover from the Articles, which had envisioned a firm union of states that could act confidently as a single unit on the world stage without giving up the states’ individual independence and self-government at home. That hope, however, had been threatened by several distinct problems with the Articles. Most importantly, the lack of a taxing power limited the United States’ ability to protect its basic interests and take up an equal station on the world stage with European powers. Almost as important were the growing conflicts between states arising over economic tensions, with no means of independent resolution.

The Constitution’s enhanced powers, then, were narrowly aimed at rectifying these and other problems. The establishment of a more autonomous governing structure was a side effect—a necessity for a government empowered to address these problems. It did not signify the establishment of a “polity that gave the central government precedence over the states” but merely ensured that each level of the government was fully capable of successfully carrying out the tasks it was assigned. The Constitution, therefore, “transformed the structure of the American union . . . but it did not transform the fundamental purpose of the union, which remained a political organization designed to manage the relations between the American states, on the one hand, and between the American states and foreign powers, on the other.”

And from the conclusion:

Edling’s account is, for the most part, a convincing and useful corrective to nationalist understandings of the Constitution and its context. It is missing an important element, however: a systematic account of sovereignty and its relationship between the people, states, and the federal government. Much confusion can ensue when the distinction in the founding era between an ultimate “sovereignty” and “government power” is blurred. ...

Edling is almost entirely focused on the division of governmental authority, not ultimate popular sovereignty, and the book does not run into many problems on account of this distinction. But he does occasionally allude to matters that cannot be understood without it. For instance, he says at one point that “The authority of the Constitution rested on popular sovereignty whereas the Articles of Confederation had been an agreement between the states,” but elsewhere he calls the constitution a “plan of union between sovereign republics” and a “compact between states” He also refers to the states voluntarily “circumscribing their sovereignty.” There are not necessarily any contradictions to be had here, but a thorough presentation of the distinction and the use of more precise terminology could help for a more complete picture. On this point, readers will find a more thorough account in Aaron Coleman’s The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765-1800.

Though one cannot fault a short study for failing to look at every implication, the book is also lacking much by way of assessment of the plausibility of this division of power. Anti-Federalists, of course, did not believe such a balance of federal and state power could reasonably be struck and maintained. Give to the central government the sword, the purse, and the authority to interpret its own limits, and it will eventually use whatever pretense it can find to arrogate to itself supreme authority in all areas. Even in the early republic, the lines between foreign and domestic policy, and especially between intra- and interstate commerce were blurry. They are even more so now. On this point, at least, does subsequent American political development provide the inevitable vindication of the Anti-Federalists?


Gerard Magliocca on Chief Justice Marshall on the Necessary and Proper Clause
Michael Ramsey

At Balkinization, Gerard Maggliocca (Indiana): An Alternative Test for the Necessary and Proper Clause.  Professor Magliocca notes this comment from Chief Justice Marshall (in his biography of George Washington): 

In asserting the authority of the legislature to pass the bill, gentlemen contended, that incidental as well as express powers must necessarily belong to every government: and that, when a power is delegated to effect particular objects, all the known and usual means of effecting them, must pass as incidental to it. To remove all doubt on this subject, the constitution of the United States had recognized the principle, by enabling congress to make all laws which may be necessary and proper for carrying into execution the powers vested in the government. They maintained the sound construction of this grant to be a recognition of an authority in the national legislature, to employ all the known and usual means for executing the powers vested in the government. Then they took a comprehensive view of those powers, and contended that a bank was a known and usual instrument by which several of them were exercised.

Thus he (Magliocca) finds in Marshall's quote an alternative test for necessary and proper: that the implied power claimed by Congress under the clause be a "known and usual means" for carrying into execution an enumerated power.  In conclusion:

I think that "known and usual means" is a more helpful test for analyzing incidental powers (especially in light of over two centuries of practice) than the more typical formulations. 

For example, the thrust of the Chief Justice's opinion in Sebelius was that a mandate to buy health insurance was unusual--it was not a "known and usual means" for exercising the commerce power. The same could be said for a federal vaccination mandate on private employers, if you assume that OSHA even has that power under the relevant statute. And so on.