Jack Balkin’s Response to My Article on Resolution VI

I am glad to report that Jack Balkin has posted an extended response to my new article on Resolution VI. His doing so allows me to both clarify my arguments and our points of disagreement. Jack’s scholarship on constitutional theory and history is deep and profound, and Jack himself is a warm and gregarious colleague. Both of these points are obvious to anyone familiar with Jack and his work, but given the criticisms in my article, I should acknowledge both facts up front. My claim in this article is nothing more than, on this particular point, Jack and others have erred in regard to their claims about Resolution VI.

It is important to clarify these claims because Jack seems to misapprehend my arguments. They are directed solely at historical claims made by proponents of a Resolution VI-based reading of Article I, Section 8. These are claims of original intent and historical fact. The relevance of any historical evidence depends on one’s theory of interpretation. This article has no quarrel with Jack’s or anyone else’s particular theory of interpretation and construction. My quarrel, if you want to think of it that way, is with the factual claims relied upon by Jack and others in building their case.  For those first joining the discussion, my general argument is presented here, here, here, and here.

Our Respective Claims

First, Balkin claims that I have mischaracterized his position about Resolution VI. Balkin does in fact have a creative theory of constitutional meaning and construction, one that I do not address in my article or in my posts. It may well be (though I am not convinced) that the evidence presented in my article makes no difference to his particular theory of Article I, Section 8. However, in the course of presenting his theory, Balkin makes specific historical claims which he then relies upon in building his case, and which others have relied upon in building their case about the meaning and scope of Article I, Section 8. It is important, therefore, to determine whether these historical claims are supportable.

As much as Balkin takes considerable time presenting his theory of constitutional meaning, for my purposes it is important to note how all of this “cashes out” in terms of the purported relationship between Resolution VI and the meaning of Article I, Section 8. First, according to Balkin, “the purpose of enumeration was not to displace the principle [of Resolution VI] but to enact it.” This leads to the following bottom line in terms of the Commerce Clause:

“In the words of Resolution VI, commerce is ‘among the several states’ when states are ‘severally incompetent’ to deal with a particular issue, ‘or [when] the Harmony of the United States may be interrupted by the exercise of individual legislation.’” (emphasis added)

To me, this is fairly characterized as an assertion that Article I, Section 8 means the principles of Resolution VI. This is, literally, what Balkin says in the above quoted passage. I appreciate Jack’s attempt to put his theory in a broader context, but I do not believe I have misrepresented his bottom line.

On the other hand, it is clear that Balkin has misunderstood the nature of my claims, so let me restate them up front:

1. There is no historical evidence that the framers of Article I, Section 8 intended or understood that article to effectuate the general principles of Resolution VI. Instead, the only time the framers spoke to the issue, the expressly denied such intent and understanding.

2. Although Jack Balkin and others claim that James Wilson expressly linked Article I, Section 8 to Resolution VI in a speech in the Penn. Ratifying Convention, there is no evidence supporting such a claim. The reference which Jack and others have focused on says nothing about Resolution VI and is instead a reference to a different principle which Wilson had originally supported in the framing debates, and which the convention itself rejected.

3. The version of Wilson’s speech which contains language that Jack Balkin and others have specifically relied upon in constructing their theory of federal power was not in the version of Wilson’s speech distributed and published immediately after he gave his speech. The version Balkin and others rely upon was published months later and does not seem to have been reprinted in any newspaper. This undercuts any effort to make original public meaning claims regarding Wilson’s view. Moreover the existence of two version means we can no longer be sure about the words Wilson actually used.

Nothing in Balkin’s response undermines any of these claims.

The Work of Jack Rakove

Just to get something out of the way immediately, Jack accuses me of leaving out a passage in Jack Rakove’s work “that seriously undermines Lash’s argument.” This is simply false. I quoted this passage in the first posted version of my article, and I continue to quote it in the current draft. It is unfortunate that Jack would claim otherwise. Nor does this passage undermine my argument in any way. [update: Jack Rakove has now modified his original post and apologized for the error.]

Here is how my article presents the thoughts of Jack Rakove:

“This ambiguity in the meaning of Resolution VI is best described by historian Jack Rakove:

‘This open-ended language [of Resolution VI] may be interpreted in two ways. On the one hand, it may be viewed as an authentic formula for a national government whose legislative power would extend as its own discretion saw fit. On the other, it can also be read as a textual placeholder to be used so long as the great issue of representation remained unresolved, but then to be modified or even replaced by a list of particular powers.’

Rakove concludes, “the process that unfolded during its [the Committee of Detail] ten days of labor is better explained as an effort to identify particular areas of governance where there were “general interests of the Union,” where the states were “separately incompetent,” or where state legislation could disrupt the national “Harmony.” Although it is true that no one in the convention objected to Article I, Section 8 as conflicting with Resolution VI, the convention’s lack of objection could simply reflect that framers consensus belief “that the scope of national lawmaking would remain modest.” As Rakove writes, even with the addition of the Necessary and Proper Clause, “[t]here is no reason to think that the framers believed [that Clause] would covertly restore the broad discretionary conception of legislative power in the Virginia Plan.” In other words, simply because no one objected to Article I, Section 8 does not mean that the text should be construed to fit a broad conception of Resolution VI. If anything, the abandonment of Resolution VI and the ultimate adoption of a text of enumerated powers suggests that one ought not look to the Resolution VI as declaring an overarching principle of constitutional construction.”

Jack Balkin, on the other hand, does omit Rakove’s conclusion that, even with the addition of the Necessary and Proper Clause, “[t]here is no reason to think that the framers believed [that Clause] would covertly restore the broad discretionary conception of legislative power in the Virginia Plan.” In the end, though, I do not “base[ my] arguments against Resolution VI on Rakove’s work” and neither does Balkin. Both of us simply have found aspects of Rakove’s work helpful in understanding the evidence. So let’s consider Balkin’s claims about my reading of the evidence.

The Speech of James Wilson

Regarding the speech of James Wilson; as far as I can tell, Jack concedes my factual claims about Wilson’s speech, but argues, for various reasons, that even if true this makes little difference to his overall arguments. I presume this is true, but it will make a great deal of difference to those who relied on the accuracy of prior claims. Here is how I understand Jack’s response: Yes, Wilson does not seem to have actually referred to Resolution VI. However, Wilson referred to something I believe is essentially the same, Roger Sherman’s principle, so it makes no difference.” Putting aside the scholars and litigants who accepted Balkin’s prior particular claims about Wilson’s reference, his argument has some serious problems.

The reason why Balkin relies on Wilson’s speech in his “Commerce” article is to refute Randy Barnett’s claim that the framers rejected Resolution VI when they adopted Article I, Section 8. According to Balkin, Wilson’s speech proves Randy is wrong: Balkin claims this is evidence of an important framer in the ratification debates who expressly reads Article I, Section 8 as having been animated by Resolution VI. It is because Balkin understood Wilson as referring to Resolution VI that he felt justified in asserting that, not only did the framers not reject Resolution VI, “they enacted it.”

But if Wilson was not referring to Resolution VI, this argument evaporates. Not only has Balkin failed to rebut Randy Barnett, he has relied upon a reference to Roger Sherman’s principle which was expressly rejected by the convention. Jack may think the principles are essentially the same, but the convention disagreed. Most of all, Jack has jumped from the fat to the fire by relying on Wilson’s invocation of Sherman’s rejected principle.

The Two Versions of Wilson’s Speech

As for the evidence of the two versions, this simply illustrates one final and insuperable problem with relying on Wilson’s speech as reported in Elliot’s debates. (1) We cannot be sure these were Wilson’s words and (2) even if they were, they were not printed until much later and seem to have had little, if any, distribution in the public newspapers. This further undercuts what was already an implausible case that Resolution VI might have been part of the original public meaning of the Constitution. This last point does not matter to Jack Balkin, but it should matter a great deal to those who think that original meaning matters, or who may have thought (as did Cooter and Siegle, and Wydra) that Jack was making an argument about the original public meaning (as most scholars mean that term) of the Constitution.

The Framers’ Colloquy on the Incorporation Power

For some, since the above undercuts the only purported evidence of original public meaning, this alone will be enough to call into question Resolution VI-based readings of Article I, Section 8. The only other evidence involves the internal convention debates and assertions about framers intent. For many, nothing here will have much relevance to the more important issue of public meaning of a text that said nothing about Resolution VI.

But the debate over charters of incorporation is important if only to show that the framers themselves expressly denied what Balkin and others claim they believed.

Balkin’s response is the very counter-move I anticipated and have already responded to in my final post at the Volokh Conspiracy debate with Neil Siegel. It is worth restating here if only because Balkin’s attempted hypothetical illustrates the problem that he faces overcoming the implications of this particular debate.

Just to pull back a bit and remember what we are trying to determine: The framers adopted Resolution VI and sent the same to the committee of detail. The committee put aside the language of Resolution VI and drafted a text of enumerated powers. Did this represent a rejection of Resolution VI (as some claim)? Or does this represent an enactment of Resolution VI (as some claim)? Or does this represent the result of some kind of internal debate that took place during the drafting of Article I Section 8 which represented a variety of compromises and concessions for which Resolution VI had little if any relevance?

To simply claim that Article I, Section 8 represents the enactment of Resolution VI is to beg the question we are trying to answer. It might help if a framer later claimed Article I Section 8 represented the enactment of Resolution VI, but we now know that no such claim was made.

Instead, the only time (that we know of) that the framers actually commented on the relationship between Article I, Section 8 and the principles of Resolution VI, they expressly denied that the general principles of Resolution VI had been enacted with the adoption of Article I, Section 8. Balkin tries to change the nature of my claim in order to make it harder to defend. But I do not claim this evidence “proves that Resolution VI was rejected.” Instead, my claim is that (1) not only is there no evidence the framers understood Article I, Section 8 the way Balkin claims they did, but (2) the evidence we have directly contradicts Balkin’s claims about the framers. If true, this places an enormous burden on proponents of Resolution VI to provide historical evidence to the contrary. To date, they have presented nothing at all other than their continued “once adopted, always adopted” claim about Resolution VI.

Balkin tries to avoid the evidence by way of a hypothetical. First, he point out that one can reject a particular application of a principle without rejecting the principle itself (which is true). He then uses the following hypothetical as an illustration of what he claims actually occurred during this colloquy:

Imagine that a group of ten people agree that government will uphold “equal protection of the laws.” Two of them argue that now they should support same sex marriage, because this would secure equal protection of the laws. The other people in the room disagree, a vote is held, and the two supporters are outvoted. Does this vote mean that the group has rejected the basic principle of equal protection, or does it mean merely that they disagreed about how to apply the principle to concrete circumstances? The latter, surely, even if we agree with the losers on the merits. But according to Lash’s argument, this vote would be clear evidence that the group has abandoned the principle of equal protection because the two proponents specifically invoked the principle in their arguments.

This is neither my argument nor an accurate representation of what occurred. Here, again, is the colloquy:

Here is the discussion as noted by James Madison:

Mr. Madison suggested an enlargement of the motion into a power “to grant charters of incorporation where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent”. His primary object was however to secure an easy communication between the States which the free intercourse now to be opened, seemed to call for–The political obstacles being removed, a removal of the natural ones as far as possible ought to follow. Mr. Randolph 2ded. the proposition.

Mr King thought the power unnecessary.

Mr Wilson. It is necessary to prevent a State from obstructing the general welfare.

Mr King–The States will be prejudiced and divided into parties by it–In Philada. & New York, It will be referred to the establishment of a Bank, which has been a subject of contention in those Cities. In other places it will be referred to mercantile monopolies.

Mr. Wilson mentioned the importance of facilitating by canals, the communication with the Western Settlements–As to Banks he did not think with Mr. King that the power in that point of view would excite the prejudices & parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.

Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.

The motion being so modified as to admit a distinct question specifying & limited to the case of canals.

N– H– no– Mas. no. Ct. no– N– J– no– Pa ay. Del. no– Md. no. Va. ay. N– C– no– S– C. no– Geo. ay. [Ayes–3; noes–8.]

In this short but important conversation, we learn a number of things. First and most importantly, no one in this discussion believed that, by adopting Article I, Section 8, the Convention had granted Congress power to regulate matters in the national interest, even when required in cases where the states were “separately incompetent.” If they had, they would have either supported Madison’s proposal as being consistent with Resolution VI or they would have pointed out that Congress already had the power to act in cases “where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent.” Instead, not only did Madison and Wilson deny Congress had any such power (though they believed it should), the convention voted down the proposition to grant Congress such power.

Balkin argues that this was no more than a rejection of a particular application of a previously adopted principle. However, the manner in which Madison framed his motion, however, and the manner in which Wilson supported it, directly cut against such a counter-argument. Madison did not just propose power to grant charters of incorporation, he proposed allowing such charters “where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent.” There is no escaping the fact that, if advocates are right and Article I, Section 8 must be read as effectuating the principles of Resolution VI, then the power that Madison proposed to add to the Constitution had, in fact, already been added. To believe this particular power did not currently exist was to believe the principle had not been adopted.

Once again, consider how Balkin frames his hypothetical:

“Imagine that a group of ten people agree that government will uphold “equal protection of the laws.” Two of them argue that now they should support same sex marriage, because this would secure equal protection of the laws.”

This, of course, is not analogous to what Madison actually proposed or how it was received. The correct analogy would look like this:

“Imagine that a group of ten people agree that government will uphold “equal protection of the laws.” Two of them argue that now they should support same sex marriage in cases where the denial would violate the government’s duty to uphold “equal protection of the laws.”

The adoption of the principle that government shall uphold equal protection of the laws literally applies in cases where the government fails to uphold equal protection of the laws. For anyone to claim that the government was not already committed to upholding equal protection of the laws (in the case of same sex marriage or any other situation) would be to claim that they did not believe they had committed the government to the general principle.  To deny the application in such a case is to deny the principle.

Unlike the assertion in Jack’s hypothetical, we cannot claim apriori that the framers have adopted a particular principle. We are looking for evidence to see whether they have adopted that principle. In this case, Madison and Wilson expressly deny that the powers granted should be read as having adopted the general principle. Therefore, Balkin’s hypothetical is inapt. It reflects neither my argument nor the actual discussion that took place.

One might argue that Madison actually believed such power already existed and he was making the proposal only “for greater caution.” Neither he nor anyone else said this, of course. And the idea that Madison held an unstated belief that Article I, Section 8 harbored power to grant charters of incorporation becomes all the more unlikely when one remembers that Madison argued all his life that Article I, Section 8 properly construed did not include the power to grant charters of incorporation (his ultimate signature on the second bank bill reflected acquiescence to precedent; Madison continued to argue against the interpretation that allowed for charters of incorporation). Madison’s life-long position on the matter supports a conclusion that the most obvious reading of his proposal is, in fact, the correct one: Madison sought to add the power because he did not think the power had been added.

Some might dismiss Madison’s later claims regarding the powers of incorporation as no more than an after-the-fact change of mind. Even if true (for which, again, there is no evidence), this cannot explain the remarks of James Wilson. Wilson supported Madison’s proposal, not for “greater caution,” but because it was “necessary to prevent a State from obstructing the general welfare.” The most obviously reading of this declaration is that Wilson did not think the principles of Resolution VI were currently operative (otherwise, the power to prevent the “interruption of national harmony” would have covered Wilson’s concern). But even if there is some other reasonable way to understand Wilson’s use of the word “necessary,” Wilson then further clarified that Madison’s proposed power was unlike the power to grant mercantile monopolies because that power had already been “included in the power to regulate trade.” It is inescapable that Wilson viewed Madison as suggesting the addition of a power not already granted in Article I, Section 8.

Once again, remember, we are not just talking about the power to grant charters of incorporation. Madison proposed adding such power in cases “where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent.” If Article I, Section 8 must be read to effectuate the principles of Resolution VI, then this power by definition already existed. Wilson believed it did not exist. And it is hard to find a more ardent nationalist than Wilson.

Conclusion

Balkin concludes “Lash thinks that the minutiae of public representations in the ratification debates, and the subtle differences in rival renderings of James Wilson’s speech in November of 1787 is crucial to determining how to be faithful to our Constitution today.” I believe Balkin intends the word “minutiae” to mean “trifling.” If, on the other hand, he means “precise details,” then, yes, I do believe they are important. Particularly when global claims of national power are based on inaccurate or erroneous details. And while Balkin is right that one must be careful not to lose the forest for the trees, if there are no trees there is no forest.