Prof. Lash’s Originalist Claims

I learned from Kurt Lash’s new article, which makes novel and creative claims about historical materials that are important to a variety of theories of constitutional interpretation.  In this post, I will first question some of his originalist conclusions.  More importantly, I will then explain why he offers little reason to reject the structural, nonoriginalist account provided by collective action federalism.   

I am unpersuaded by several of the conclusions that Prof. Lash draws from his examination of the historical materials. 

Regarding the relationship of the Philadelphia Convention to Resolution VI, Prof. Lash makes a persuasive case that the Framers did not intend the resolution to supplant the enumeration of powers in Article I, Section 8.  I am, however, unaware of anyone who disagrees with him on this point. 

Moreover, I do not think he shows that Resolution VI was merely and literally a placeholder, so that its content is irrelevant to the proper interpretation of the various clauses in Section 8.  Prof. Lash himself quotes Madison’s reference to Resolution VI during the Convention as a “general principle on which we should act.”  It seems implausible that Resolution VI could have included absolutely any language at all — even the strong state sovereignty language in the Articles of Confederation — and the result for the proper interpretation of every clause of Section 8 would be the same. 

The incorporation episode during the Convention is not as illuminating as Prof. Lash suggests.  I do not see how it establishes that the delegates rejected the continuing pertinence of the structural principle expressed in Resolution VI after adopting Section 8. 

The episode consisted of one, very brief set of exchanges among only a few of the delegates (one page in Madison’s Notes) towards the end of the Convention (September 14), and it occurred during the course of consideration of numerous proposals to amend the constitutional text in various ways on various subjects.  Given the context, I am loath to draw strong conclusions one way or the other from this episode.

Moreover, of the few delegates who spoke, Madison’s Notes make it difficult to distinguish between (1) delegates who might have wanted to make explicit a power that they thought was already implicit in the other enumerated powers, and (2) delegates who wanted to add the incorporation power to an enumerated list that did not already include it implicitly.  Unlike Prof. Lash, I cannot with confidence categorize Madison and Wilson based only on this episode.  Prof. Lash apparently reads Wilson as saying that the addition of the power was “necessary” because Section 8 did not already include it.  Wilson, however, might have simply meant that it would be “necessary” for Congress to exercise the power “to prevent a State from obstructing the general welfare.”

In addition, the vote of the Convention regarding explicit congressional power to establish corporations to build canals does not tell us who voted against the provision based on substantive objections, and who was moved by prudential concerns that reflected the political sensitivity of the broader issue at the time.  Rufus King voiced prudential objections. 

Finally, even putting aside all of the above, this episode does not show that the Convention rejected the relevance of the structural principle expressed in Resolution VI to subsequent interpretation of the enumerated powers in Section 8.  At most, the episode shows that the delegates disagreed about whether the structural principle should be embodied in an enumerated power to charter corporations, either in general or regarding canals in particular.  To reject a particular application of a principle at a particular time (for whatever reason) is not to reject the relevance of the principle to a proper understanding of other, accepted applications.

Regarding what Wilson said during the ratifying convention in Pennsylvania, I do not think Prof. Lash has shown that Wilson was referring to Roger Sherman’s statement of a collective action principle, as opposed to Resolution VI or Wilson’s own generalized understanding of what the clauses of Section 8 accomplish.  I do not think Prof. Lash has made this showing for much the same reason that it ultimately would not matter if he had: each formulation is evocative of a distinction between problems that require collective action by states and those that require individual action.  Sherman distinguished “the common interests of the Union” and “the general welfare of the United States” (my emphases) from “matters of internal police which respect the government of such States only.” 

What matters is the structural principle given voice in Resolution VI, not the particular language of Resolution VI itself.  The general welfare of the nation is distinct from the particular welfare of a state.  General welfare is welfare that the federal government can obtain but the seperate states cannot because of collective action problems.

This is why Wilson’s reference to “operations and effects,” if that is what he in fact said, is not quite right because he fails to distinguish effects from external effects.  In other words, in the recorded version of Wilson’s speech that Jack Balkin examines in his Commerce article in the Michigan Law Review and that Prof. Lash questions, Wilson overstates the scope of federal power authorized by Section 8.

In any event, Resolution VI and Wilson’s statements during the ratification process play much more modest roles in the theory of collective action federalism than Prof. Lash seems to suggest.  Prof. Lash argues in effect that a particular kind of interpretive argument (originalism of one kind or another) is not supported by two pieces of historical evidence.  But collective action federalism is a structural, nonoriginalist account, and Prof. Lash offers little reason to reject it. 

I so conclude for many reasons, most of which do not concern Resolution VI or Wilson.  These include:

(1) the collective action failures that are widely understood to have inspired the Philadelphia Convention;

(2) the content of Resolution VI, which comes amazingly close to describing the key technical characteristic of collective action problems, as well as the Convention’s instructions to the Committee of Detail regarding Resolution VI and the lack of debate about the ensuing enumeration;

(3) the relevant statements of nationalist Framers like Madison, Hamilton, and Wilson, the exact timing of which is less important to a structural interpretation than to an originalist one (I am thus unconcerned by Prof. Lash’s argument that, even if Prof. Balkin focuses on “the more accurate account of Wilson’s speech, it is not the version first published, and widely republished in newspapers around the country”);

(4) the reasons the Constitution was ratified in the key states of Virginia and New York, especially fear of collective action failures in future wars with European powers;

(5) the many authorizations to solve collective action problems among the states in the text of Section 8;

(6) subsequent historical developments and mistakes, including the Lochner Court’s repeated rejections of collective action reasoning and the post-1937 Court’s frequent invocations of it, including during the Rehnquist and early Roberts eras; and

(7) the insights of modern economics regarding the design of a well-functioning federal system. 

If I read him correctly, Prof. Lash mischaracterizes collective action federalism as doing a little bit of originalism poorly; as otherwise “adopt[ing] a purely instrumentalist methodology;” and as not “actually invol[ing] an interpretation of the actual text of the Constitution.”

Just as I do not recognize Prof. Lash’s description of my work with Bob Cooter, so I do not recognize his characterizations of the work of others.  Tomorrow, I will offer my understanding of what collective action theorists believe about how to interpret the particular clauses of Article I, Section 8.

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