Neil Siegel and the Claims of Resolution VI Proponents (a reply)

My thanks to Neil Siegel for his willingness to engage the historical arguments presented in my new paper on Resolution VI.  In this final post, I will address why the discussion is important and also respond to Neil’s comments and some of the comments made by others during the week.

I should state from the outset that my article is directed at historical claims recently made in support of a Resolution VI-based reading of Article I, Section 8. Neither my paper nor my posts here at the Volokh Conspiracy address the relative merits of Cooter and Siegel’s instrumentalist case for adopting the principle of Resolution VI.  That said, I believe it is important to understand what it is Resolution VI proponents are asking for. Cooter and Siegel, for example, believe that a Resolution VI-based reading of Article I, Section 8 support revisiting the analysis in United States v. Butler and allowing Congress to regulate “for the general welfare” (properly understood). Andrew Koppelman insists that courts should rely on Resolution VI because the Resolution is the “functional equivalent” of Article I, Section 8—as in, Resolution VI “functions as the equivalent” of Article I, Section 8.

I think this is an accurate description of what Resolution VI proponents are about—effectuating the general principle of the Resolution should be the standard by which we measure proper interpretations of the text, as should be the case if they were functional equivalents. Any reading of the text that does not allow Congress to regulate for the “general interests of the Union,” or in cases where the “states are separately incompetent,” or where state action “interrupts national harmony,” is an incorrect reading of the text.  Here is how Wydra and Kendall put it in their briefs, “Only if ‘commerce’ is read in light of this broader dictionary definition and usage 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.” This is not just the claim of a legal advocate. It is the same position taken by scholar Jack Balkin.

According to Balkin, “[i]n 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) Under Balkin’s approach, the constitutional text means the principles of Resolution VI. The full breadth of Balkin’s reading becomes even more apparent once you understand that Balkin believes “commerce” means “social interaction.” Thus, Article I, Section 8 means that Congress has power to regulate “social interaction” when states are “severally incompetent” to deal with the issue or when state involvement interrupts the “harmony of the United States.” Why should we choose such a broad reading of “commerce among the states? Because this effectuates the principle of Resolution VI.

None of these arguments rely on Resolution VI merely as a guide in situations when the otherwise clear meaning of the text runs out. All of these claims give the general principle of Resolution VI primacy of place in determining the scope of federal authority. The Resolution becomes the measure of the text. As a coup de grace, Balkin and other Resolution VI advocates believe that, absent the violation of an expressly enumerated right, courts should defer to Congress’s determination of what counts as an instance of “interrupted national Harmony” (though Cooter and Siegel are agnostic on this point). But even without this final grant of authority to Congress to regulate “social interaction,” it seems fairly clear that we have left the traditional principle of judicially enforced limited enumerated powers far behind.

But perhaps we should. Cooter and Siegel make a sophisticated argument that following the principle of Resolution VI would achieve beneficial results. Whether we should write a Constitution that follows such a principle is one thing. Whether we ought to interpret our current Constitution as if we have already done so, however, is another. One needs a reason to adopt one normative interpretive principle over another, and most Resolution VI advocates rely on historical claims regarding original intent and original meaning (including Cooter and Siegel), no doubt trusting that such claims will have normative pull in the minds of many readers (and judges). I argue that the evidence does not support these historical claims.

In his last post, Neil Siegel focuses on some of my arguments and concludes that they are either unpersuasive or relatively unimportant. I will address Neil’s comments below, and, in so doing, respond to some claims made in the comments to this week’s posts. But once again, a reminder: My full argument in found in my article, and not just in these blog posts. I hope, therefore, that readers will consider the evidence presented in its full context.

First, Neil points out that the framers’ discussion of the principles of Resolution VI which I present in my article is so short, and occurs so late in the convention, and took place in the midst of so many proposed amendments, that he is “loath to draw strong conclusions one way or another.” The problem with this point is that it tries to make a virtue out of what is actually a serious problem for advocates of Resolution VI. A paucity of reference is exactly what you would expect if the framers left Resolution VI behind the moment they adopted Article I, Section 8. If, on the other hand, the framers intended Resolution VI to serve (and continue to serve) as the foundational structural principle for understanding congressional power, why is the canal debate the only time its principles are mentioned despite the many post-Article I, Section 8 debates regarding the need for additional federal authority?

Other scholars have made similar points about the significance of these later calls for additional powers. The lack of references to Resolution VI in these discussions highlights a large hole in the “original intent” claims for Resolution VI: There is not a single piece of positive evidence showing that the framers intended Resolution VI to serve as a guide to understanding the scope of federal power following the adoption of Article I, Section 8. Indeed, no one made such a claim for more than one hundred years after the adoption of Article I, Section 8.

There is, however, newly identified historical evidence indicating that the framers did not have such an intent. The only time that the principles in Resolution VI were discussed in the convention following the adoption of Article I, Section 8, the convention rejected an attempt to add those principles to the Constitution. Moreover, James Madison and James Wilson acted on the understanding that these principles had not been adopted and that the powers of Article I, Section 8 would not be interpreted in a manner that effectuated the principles of Resolution VI.

Here is how I understand the counter-argument: Perhaps, during the discussion on incorporation powers, the framers were really just discussing one particular application of the principle, one involving charters of incorporation for the construction of canals. One can reject a particular application of a principle without rejecting the principle itself. Therefore, this particular discussion and its conclusion tell us little if anything about the framers’ view of Resolution VI.

The way 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 the power did not currently exist was to believe the principle had not been adopted.

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.

Finally, there is the case of James Wilson’s speech in the Pennsylvania Ratifying Convention. It is not altogether clear to me whether Neil disagrees with my claim that Wilson was actually referring to Sherman’s proposed principle. According to Neil, it does not matter if I am right because “it ultimately would not matter if he had.” As I understand Neil’s point, he is able to derive his preferred “collective action federalism” out of either Resolution VI or Sherman’s proposal. Perhaps he can and perhaps framers’ support for Resolution VI ultimately is irrelevant to his argument.

I, however, had understood Neil and Robert’s article as claiming that one reason for supporting their approach was because (1) it echoed the principle of Resolution VI, and (2) one can make an originalist argument that Resolution VI reflected the framers’ intent because the framers expressly adopted Resolution VI, and (3) this claim is buttressed by Wilson’s speech. But if Wilson was referring to Sherman’s proposal, then this erases the remaining originalist argument in support of a Resolution VI-based reading of Article I, Section 8. This, in turn, erases one reason for adopting the approach of Cooter and Siegel–the one with which they begin their analysis (see Cooter & Siegel, part I.A.1).

Once again, I am not trying to persuade readers that the framers cared nothing about “collective action federalism.” It is altogether possible that individual delegations of power reflect the kinds of concerns discussed in Cooter and Siegel’s paper. However, I am arguing that there is no historical evidence that the framers intended Article I, Section 8 to be understood as reflecting the general principle of Resolution VI, and that there is no historical evidence that Wilson made any such claim in the Pennsylvania Ratifying Convention. That being the focus of my paper, it becomes very important to determine whether Wilson was actually referring to the particular principle of Resolution VI. The evidence, I believe, strongly indicates that he was not. And I do not understand Neil as claiming otherwise—indeed, I’m pretty sure he agrees.

In conclusion, the historical claims made to support the idea that Article I, Section 8 effectuates the general principle of Resolution VI are not only unsupported by any express historical evidence, those framers who spoke to the matter expressly denied this was the case. Claims to the contrary have either missed critical evidence to the contrary or rely on errors of historical fact, or both.

My thanks to Neil Siegel, Eugene Volokh and all the bloggers here at the Volokh Conspiracy for the invitation and the (usual) high-level discussion.

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