Legal Commentary

The reason is simple: Arguments from structural principles may invoke principles that become clear only after the government has been in operation for some time. Structural principles may be derived from original expectations about the way the Constitution would work, but they also stem from the way the Constitution actually does work in practice over the years. If we said that new principles (which are constitutional constructions) can never be recognized, we couldn't explain much of our current practices of structural argument. These principles have to be consistent with the original meaning of the text, but they do not have to have been intended by anyone at the time the text was adopted.

Of course, there are many principles that we do derive from the history of the adoption of the constitutional text. I have argued that these principles must be stated at the same level of generality as the text itself; this means that they are also likely to be indeterminate and require further implementation through constitutional construction (which will require invoking sub principles and sub sub principles). In particular, that means that we do not have to apply the class legislation principle underlying the Fourteenth Amendment in the same way that people in 1868 would have applied it. The same is true with the principles underlying the Due Process Clause.

Steve is worried that, based on the expectations of people living in 1868, much redistributive legislation passed during the New Deal might be unconstitutional because it violates Reconstruction era conceptions of police powers and the boundaries of permissible state regulation. But central to my theory is the claim that we are not bound by the original expected application. Some redistributive programs-- in fact, many such programs-- could be viewed today as having a bona fide public purpose and thus not class legislation, even if people in 1868 would have regarded them as clearly beyond the scope of the police power. As Akhil Amar and Mike Curtis have pointed out, once you adopt the Sixteenth Amendment, which presupposes the power of the federal government to engage in progressive income taxation, you need to rethink what the class legislation principle means in the modern administrative and welfare state. Class legislation comes to be more about stigmatizing or subordinating government practices and less about adjustments of contract and property rights in the public interest. The application of the Fourteenth Amendment and its principles can change in light of changing circumstances, although the meaning of the terms in the text does not change.

Third, you can make a similar point about changes in the scope of federal power that arose with the New Deal. Steve worries that the text of the commerce power (and other clauses) is not capacious enough to justify the modern administrative state. I disagree, and so did Roosevelt himself. The basic principles underlying the commerce power, and indeed, the entire set of enumerated powers in Article I, section 8, were well stated by James Wilson in the Pennsylvania ratifying convention in November of 1787: "Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States."

Wilson, in turn was simply restating the content of Resolution VI at the Philadelphia Convention, adopted on July 16, 1787, which stated the basic principle that Congress should have the power "to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the U. States may be interrupted by the exercise of individual Legislation." This general statement of purpose was converted by the Committee of Detail into the enumerated powers of Congress listed in Article I, section 8, including the commerce power. The scope of each of these enumerated powers, including the commerce power, may and should be read in light of those purposes.

So stated, it becomes clear why Roosevelt could say in his public speeches that he didn't think that an amendment was necessary to justify the New Deal, and why nothing he sought was inconsistent with the text of the Constitution. As he put it in his September 17, 1937 Constitution Day address, "You will find no justification in any of the language of the Constitution for delay in the reforms which the mass of the American people now demand," and that "nearly every attempt to meet those demands for social and economic betterment has been jeopardized or actually forbidden by those who have sought to read into the Constitution language which the framers refused to write into the Constitution."

The central question of federal power during the New Deal was whether new forms of legislation were now within Congress's enumerated powers because of changed understandings about the nature of the economy and social life. These changes in economic and social life changed expectations about what sorts of problems, in Wilson's words, "extend[ed], in [their] operation or effects, beyond the bounds of a particular state," or, in the words of the Philadelphia Convention, what kinds of problems had become those in which Congress might reasonably conclude that "the States are separately incompetent" to address. The New Deal was premised on the idea that the United States had become a fully integrated national economy with governance problems that routinely had spillover effects that individual states could not adequately manage by themselves. These were problems for which a comprehensive federal solution was necessary.

The second claim made by New Dealers was that courts should defer to the reasonable judgment of Congress and the President (through administrative agencies) about when a national solution was necessary to deal with a problem for which the states "were separately incompetent," or when a problem of governance "extend[ed], in its operation or effects, beyond the bounds of a particular state." This was a claim of judicial deference in questions of economic and social legislation. Again, there is nothing in the original meaning of the text that forbids either construction, although, of course, one might prefer different constructions that would produce a much reduced federal power. Indeed, before the New Deal, people did construe the Constitution this way. But, as before, fidelity to original meaning does not bind us to these prior constructions, including the original expected application.

In sum, Steve's concerns about whether the method of text and principle can handle the forms of living constitutionalism that came with the New Deal seem to me overstated. The theory can handle these changes. The real issue, it seems to me, is that the realm of possible constructions consistent with original meaning is very large, and most of the controversy in constitutional adjudication involves choosing one set of implementing constructions over another. This process of choosing successive constructions to deal with changing circumstances is the real work of living constitutionalism; as I have detailed in a previous series of posts, (One, Two, Three, Four, Five, Six , and Seven) why particular constructions get adopted at particular points in time is due to a complicated process of interaction between courts and the political branches.

Full post as published by Balkinization on May 20, 2008 (boomark / email).