Marshalling McCulloch

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol

Reframing Article I, Section 8

Constitutional lawyers usually think of the Constitution\u27s enumeration of congressional powers as a device for limiting the federal government\u27s legislative jurisdiction. And there\u27s something to that. But considered from the point of view of the Constitution\u27s drafters, it makes more sense to think of the enumeration of congressional powers as primarily a device for empowering Congress, not limiting it. The Framers wanted both to empower and to limit the general government, and the Constitution\u27s enumeration of congressional powers makes more sense as a means of empowerment than as a means of limitation. The major exception--that is, the one significant way in which enumerating congressional powers would have made sense as a means of limitation--lies with the Framers\u27 concern that Congress would not have the capacity to provide the governance that the far-flung nation would require, coupled with their intuition that legislative domains had to belong either to Congress or the state legislatures rather than both simultaneously. Within that conception, enumerating specific congressional powers would have been a way to avoid preempting large swaths of necessary local regulation. But given modern constitutional law\u27s comfort with concurrent legislative jurisdiction, that concern no longer provides a reason for treating the enumeration of congressional powers as a device for limiting the national government

Unbundling Constitutionality

Constitutional theory features a persistent controversy over the source or sources of constitutional status, that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. Analysts should often direct their attention more to the separate substantive properties that are associated with constitutionality than to the question of constitutional status itself

The Essential Characteristic : Enumerated Powers and the Bank of the United States

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been fundamental, and agreed upon, from the beginning. But in 1791, Members of the First Congress disagreed about whether Congress needed to point to some specific enumerated power in order to create the Bank. Moreover, Madison’s enumerated powers argument against the Bank seems to have involved two rethinkings of Congress’s enumerated powers, one about the importance of enumeration in general and one about the enumeration’s specific application to the Bank. At the general level, Madison in the Bank debate elevated the supposed importance of the enumerated-powers framework: in 1787 he had been skeptical that enumerating congressional powers could be valuable, but in the Bank debate he described the enumerated-powers framework as essential to the Constitution. At the particular level, Madison’s enumerated-powers argument against the Bank seems to have been an act of last-minute creativity in which he took constitutional objections that sounded naturally in the register of affirmative prohibitions, but which the Constitution’s text did not clearly support, and gave them a textual home by translating them into the register of enumerated powers. Madison’s move may have set a paradigm for enumerated powers arguments at later moments in constitutional history: subsequent enumerated-powers arguments down to those against the Affordable Care Act might be best understood as translations of constitutional objections best expressed in terms of affirmative prohibitions, forced into the register of enumerated powers because the relevant prohibitions are not found in the Constitution

The Most Revealing Word in the United States Report

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such a distinction was previously unknown. Indeed, Justice Ginsburg described the idea of an activity/inactivity distinction as a limit on the commerce power as “a newly minted constitutional doctrine” conveniently engineered to declare the Affordable Care Act’s individual mandate unconstitutional

Herein of Herein Granted : Why Article I\u27s Vesting Clause Does Not Support the Doctrine of Enumerated Powers

1 online resource (PDF, page 301-344

The Elephant Problem

In their new book, A Great Power of Attorney : Understanding the Fiduciary Constitution, Gary Lawson and Guy Seidman argue that, as a matter of original meaning, the Constitution should be understood as analogous to a power of attorney, that interpretive devices applicable to powers of attorney should therefore be used in constitutional interpretation, and that interpreting the Constitution that way would produce results congenial to modern libertarian preferences, such as the unconstitutionality of the Affordable Care Act and the invalidity, on nondelegation grounds, of much of the federal administrative state. But the book fails to carry any of its central arguments. As a historical matter, there is virtually no evidence that the Founders thought of the Constitution on the model of a power of attorney. The book\u27s claim is about original meaning, so that ought to be the end of the matter. But to go on: the metaphor of the Constitution as a power of attorney nicely highlights the princi­ple that governmental officials should act in the public interest rather than for their own personal benefit. But it\u27s only a metaphor. The idea that the Constitution should be interpreted with the tools that would be used to interpret a power of attorney does not follow, and without that interpretive consequence the metaphor has no resolving power in contested cases

Segregation in the Galleries: A Reconsideration

When constitutional lawyers talk about the original meaning of the Fourteenth Amendment as applied to questions of race, they often men-tion that the spectators’ galleries in Congress were racially segregated when Congress debated the Amendment.1 If the Thirty-Ninth Congress practiced racial segregation, the thinking goes, then it probably did not mean to prohibit racial segregation.2 As an argument about constitutional interpretation, this line of thinking has both strengths and weaknesses. But this brief Essay is not about the interpretive consequences, if any, of segregation in the congressional galleries during the 1860s. It is about the factual claim that the galleries were segregated