Resolution VI in Current Scholarship and the ACA Debate

My thanks to Eugene and the Volokh Conspiracy for giving me the opportunity to blog a bit on my new paper, “Resolution VI”: The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8. In brief, the paper argues that recent efforts to make an historical case for using Resolution VI of the original Virginia Plan as the fundamental principle for construing federal power under Article I, Section 8 are fatally flawed due to both historical omission and historical error.

I am pleased to join Neil Siegel as a co-guest blogger on the subject of Resolution VI, and in later posts I plan on responding to Neil’s comments. For now, I plan three substantive posts. This first post presents Resolution VI and the claims of its current proponents. The second and third will address key pieces of historical evidence that I develop in more detail in my article. Because I can only hope to scratch the surface of the historical evidence presented in the article, I am hopeful that those interested in the matter will investigate the fully developed arguments in the scholarly literature, including my own article and others such as the insightful paper by Neil Sielgel and Robert Cooter in the Stanford Law Review.

I begin with Resolution VI of the Virginia Plan. As amended and ultimately adopted in the Philadelphia Convention, Resolution VI declared that Congress should have power:

“[To] legislate in all Cases for the general interests of the Union,
and also in those Cases in which the States are separately incompetent,
or in which the harmony of the United States may be interrupted by the Exercise of Individual Legislation.”

Although adopted early in the Convention, the language of Resolution VI was never added to the Constitution. The framers chose instead to enumerate the powers of the federal government in Article I, Section 8. No one at the time suggested that the abandoned language of Resolution VI should be used as a guide to understanding Article I, Section 8. In fact, despite the many and passionate debates over federal power that occurred in the first century and a half of the Constitution, no one suggested that Resolution VI had any relevance at all prior to 1935 when Robert Stern first made the argument in the Harvard Law Review.

The use of Resolution VI as an interpretive guide then disappeared once more until surfacing briefly in a footnote by Professor Akhil Amar in his 2005 book, America’s Constitution: A Biography. In that footnote, Amar simply noted that the Committee of Detail translated the general instructions of Resolution VI into the specific powers of Article I, Section 8; he made no argument in favor of using Resolution VI as a foundational principle for constructing national power. It was not 2010, with the relatively contemporaneous publication of Yale Law Professor Jack Balkin’s article Commerce in the Michigan Law Review, and Robert Cooter and Neil Siegel’s article “Collective Action Federalism: A General Theory of Article I, Section 8,” that Robert Stern’s original idea received serious scholarly attention and development.

In the short time since their initial publication, a number of scholars and litigators have cited these two articles in support of Resolution VI-based interpretation of federal power. Elizabeth Wydra and Douglas Kendall of the Constitutional Accountability Center, for example, have submitted briefs in several challenges to the health insurance mandate that rely on the work of Jack Balkin and his historical claims about Resolution VI.

So what are these claims? According most Resolution VI scholars, Article I, Section should be read to allow Congress to “legislate . . . in those cases where the states are separately incompetent.” This allows Congress to act in all cases affecting the national interest that involve “collective action problems” where States are unwilling or unable to act individually. Although this might seem to be a radically broad reading of federal power, these scholars claim that this was the reading embraced by the Framers themselves. The argument goes like this: The members of the Philadelphia Constitutional Convention adopted Resolution VI and sent the same to the Committee of Detail with the expectation that the resulting constitutional text would operationalize the Convention’s adopted understanding of the proper scope of national power. Because Resolution VI represented the framers’ intent regarding the proper scope of national power, this supports judicial reliance on Resolution VI as an interpretive guide to constructing the delegated powers of Article I.

In addition to the above claims of original framers’ intent, Jack Balkin also claims that framer and future Supreme Court Justice James Wilson publicly declared during the Pennsylvania Ratification debates that the framers based Article I, Section 8 on the underlying principle of Resolution VI. In a passage dismissing Randy Barnett’s claim that the framers ultimately rejected Resolution VI, Balkin writes:

“[T]here is no evidence that the convention rejected the structural principle stated in Resolution VI at any point during its proceedings. Indeed, this principle was the animating purpose of the list of enumerated powers that appeared in the final draft, and it was the key explanation that Framer James Wilson offered to the public when he defended the proposed Constitution at the Pennsylvania Ratifying Convention. Wilson was a member of the Committee of Detail and he would certainly have known if the Committee had abandoned the principle of Resolution VI. As Wilson explained, however, the purpose of enumeration was not to displace the principle but to enact it.”

This last claim is significant for a number of reasons: If true, it provides evidence that the framers understood Article I, Section 8 as enacting the principle of Resolution VI. It also would provide evidence that Resolution VI became part of the public debate over the ratification of the Constitution. Not only was Wilson an important player in the ratification of the Constitution, a version of Wilson’s speech was reprinted in numerous newspapers in months following the Pennsylvania Convention. If Wilson publicly linked Article I, Section 8 to Resolution VI, and did so in a manner that was broadly published across the country, then this opens the door to arguments based on original public meaning–a far more influential form of originalism currently than that of original intent.

Not surprisingly, Balkin’s arguments have been quickly embraced by supporters of federal power to force individuals to purchase private health insurance. In his Yale Law Journal On-Line essay, Bad News For Mail Robbers: The Obvious Constitutionality of Health Care Reform, Andrew Koppelman cites Balkin’s work and declares that the framers accepted Article I, Section 8 as “the functional equivalent” of Resolution VI. Wydra & Kendall give Balkin’s claims about Resolution VI and James Wilson center-stage in their amicus briefs submitted in Virginia v. Sebelius, Seven-Sky v. Holder, and HHS v. Florida. In these briefs, Wydra and Kendall claim that the historical evidence regarding Resolution VI requires courts to read the Commerce Clause as if it meant Resolution VI. As they put it, only by doing so “does the Commerce Clause effectuate the Framers’ direction that Congress should have authority to ‘legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the Exercise of individual Legislation.’”

My article challenges these claims about Resolution VI. The framers did not believe Article I, Section 8 gave Congress the authority to “legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the Exercise of individual Legislation.” Nor is there any evidence that James Wilson spoke about Resolution VI in his speech in the Pennsylvania Convention. In fact, it’s no longer clear that Wilson’s speech even included the language cited by Balkin and others in support of their claims regarding Resolution VI and the framers’ understanding of federal power. Explaining why I believe this is the case will be the subject of subsequent posts.