Recently Paul Clement’ offered this defense of federal tort reform on behalf of the Chamber of Commerce. Today, the Independence Institute’s Rob Natelson offers a short critique entitled, Did the Founders’ Constitution Permit Federal Tort Reform? Like Rob, I favor state tort reform on policy grounds. And also like Rob, I am deeply skeptical of Congressional power to reform state tort law. I have not had the chance to study Paul’s argument in his paper, so I have had to refrain from opining on its merits until I do. But because I always find Rob’s work careful and informed, even where I disagree with him, I am interested in his assessment that
the Clement paper rests only on two props:
(1) Single statements from Alexander Hamilton and James Madison. The Hamilton quote is a passage in Federalist No. 80: “Whatever practices may have a tendency to disturb the harmony between the States are proper objects of federal superintendence and control.” The Madison quote refers to the need for a federal commerce power because separate state governance of interstate commerce “engendered rival, conflicting and angry regulations.”
(2) The claim that the “framers” inserted the Commerce Clause to enable Congress “to remove state-law obstacles to interstate commerce. . . and to invigorate our foreign commerce.”
Rob then gives four reasons for doubting these “props”:
First: The Hamilton statement is sorely ripped out of context. In Federalist No. 80 Hamilton was not talking about the general scope of federal power, but about why the Constitution gave the federal courts jurisdiction over disputes among state sovereignties—for example, over boundaries. Hamilton was explaining that otherwise such disputes might lead to war.
On the other hand, in Federalist No. 17 Hamilton specifically tells us that “administration of private justice between the citizens of the same State. . . can never be [a] desirable care of a general jurisdiction.” My study quotes even stronger statements on the subject from other key advocates for the Constitution: They all represented that tort law and civil justice between same-state litigants would be none of the federal government’s business.
Second: The intent of the Constitution’s framers (drafters) does not determine the document’s original legal force. According the Founders’ own law, what controlled was the understanding of the ratifiers or, in absence of a clear understanding on the subject, the document’s original public meaning. Mr. Clement does not even attempt to marshal evidence on the ratifiers’ views or on the original public meaning.
Third: One purpose of the Commerce Clause was to empower Congress to trump what Madison called “rival, conflicting and angry regulations.” But Madison was talking not about all state laws, but only those considered “regulations of commerce.” These particularly included embargoes and prohibitive tariffs. Neither Madison nor anyone else thought the Commerce Clause would give Congress a blank check to overrule other kinds of state laws—and certainly not the rules governing state judicial systems.
True, the Virginia Plan considered by the constitutional convention would have invested Congress with authority to “legislate in all cases . . . in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” But the convention rejected that approach in favor of more narrowly-drawn enumerated powers. Good thing, too—in part because the public never would have ratified the Virginia Plan.
Finally, a point for committed originalists: Mr. Clements’ paper suggests that the only purpose of the Commerce Clause was to facilitate or “invigorate” commerce. Not true.
The power “to regulate commerce” included not only the power to facilitate, but also the power to obstruct. Most Founders favored investing Congress with authority to “regulate Commerce” because it also would allow Congress to restrict the Indian trade (e.g., in guns) and to erect prohibitory tariffs to limit import of foreign goods.
Once the Constitution had been adopted, Congress promptly enacted both kinds of restrictions.
In my book, Restoring the Lost Constitution, I was reluctant to admit the last proposition, but was forced to by the fact that the power to prohibit the slave trade under the Commerce Clause was implied by the express limitation on that power until 1808.
Those who are interested in federalism and tort reform should read Paul Clement’s paper, and also Rob Natelson’s The Roots of American Judicial Federalism. I opined briefly on this subject last year in a Washington Examiner op-ed, Tort Reform and the GOP’s Fair-weather Federalism. But unless I am persuaded by Paul’s argument, which I will approach with an open mind, I can imagine once again being on opposite sides of a federalism challenge, as we were way back when in the Raich case.
But now, I need to get back to reading Sandy Levinson’s provocative new book, Framed: America’s 51 Constitutions and the Crisis of Governance, for my seminar next week. So far it is a great read.