Publius Huldah: When the feds violate the Constitution, should we blame the Constitution?

Attorney Publius Huldah has some important to understand criticisms for the Convention of States movement in When the feds violate the Constitution, should we blame the Constitution?

In Rob Natelson’s paper [link], “The Solution is a Convention of the States”, he makes claims about what our Framers said is the purpose of amendments to our Constitution which are not true. He also gives false assurances about the safety of a convention called by Congress under Article V of the Constitution.

At the outset, we should note that the title of Natelson’s paper incorporates a stratagem which creates the false belief that the States control the convention. The belief is false because the convention provided for by Art. V of the Constitution is a federal convention called by the federal government to perform the federal function of addressing our federal Constitution. It is not a state function; accordingly, the term, “convention of States”, does not appear in Article V. So the “Convention of States movement” (COS), of which Natelson is “senior advisor”, renamed the convention provided for in Article V as a “convention of the States”; 1 and re-defined it as “a convention controlled by State Legislatures”.

Now let’s examine various other claims on which COS builds its case.

1. The fabricated George Mason quote

COS claims that our Framers gave us the convention method of getting amendments so that when the federal government “violate[s] its constitutional limitations”, we can get a convention to “make adjustments to the constitutional text in order to rein in the abuse of power by the federal government.” Or, in plain English, when the feds violate the Constitution, the solution is a convention to amend the Constitution.

But our Framers didn’t say that. The falsity and absurdity of COS’s claim is exposed here. What our Framers actually said is that the purpose of amendments is to correct defects in the Constitution. And they recognized that the purpose of a convention is to get another Constitution. James Madison warned that those who secretly want to get rid of our Constitution would push for a convention under the pretext of getting amendments.

2. Natelson’s claims re using amendments to “overrule bad Supreme Court decisions” & “restrain federal power”

Natelson admits that the Framers said we can use amendments to correct defects in the Constitution; but then muddles up what the Framers actually said with what they never said, thereby seemingly legitimizing his misleading claim that the Framers envisioned that we could use amendments to “overrule bad Supreme Court decisions” and “restrain federal power”.

As an example of a “bad” Supreme Court decision, Natelson claims that “[i]n early 1795, the States ratified the 11th Amendment to reverse an overreaching Supreme Court decision”.

The decision he is referring to is Chisholm v. Georgia (1793) [link]; and what he says about it isn’t true. What Chisholm actually stands for is this: Our Constitution originally delegated to federal courts the power to hear cases “between a State and Citizens of another State” (Art. III, §2, cl.1). But when a Citizen of South Carolina sued the State of Georgia, States were outraged! Georgia sued. In Chisholm, the Supreme Court decided the case in accordance with the Constitution and held that Chisholm could maintain his suit.

But the States didn’t want Citizens of other States suing them. So the States ratified the 11th Amendment which took away from the federal courts the constitutional authority to hear cases filed by a Citizen against another State. So the 11th Amendment illustrates what our Framers actually said is the purpose of amendments: to fix defects in the Constitution.

Natelson also claims that our Framers said we could use amendments to “restrain federal power” when the federal government “exceeded and abused its powers”.

Again, Natelson muddles up the true and the false when he fails to distinguish between usurpations of undelegated powers and abuses of delegated powers.

No Framer said that amendments could be used to restrain usurpations of powers not delegated. And in Federalist No. 49 (last para) James Madison says the opposite. He warns against another convention and says, “occasional appeals to the people [a convention] would be neither a proper nor an effectual provision” for restraining the federal government within its legal powers.

But when the federal government abuses a delegated power, an amendment could be appropriate. Here’s an example: the Tariff Act of 1828 was constitutional since tariffs are authorized by Art. I, §8, cl. 1. But it was abusive because it benefited infant industries in the Northeast at the expense of the Southern States. So what’s the remedy for such abuse of delegated power? Article I, §8, cl. 1 could be amended to say that Congress may impose tariffs only to raise revenue to carry out the enumerated powers; and may not impose tariffs in order to benefit one section of the Country at the expense of other sections.

3. Natelson’s proposed “corrective reforms” to the Constitution

Natelson says he wants a convention to get a balanced budget amendment (BBA); to curb “undemocratic and unfair” regulations; to reverse “liberal-activist Supreme Court decisions”; to impose term limits; and get other amendments “to restrain federal power”.

But as anyone who has read it knows, our Constitution already limits the federal government to a handful of enumerated powers. The powers are listed here. The categories of cases federal courts are authorized to hear are listed at Art. III, §2, clause 1. All the problems of which COS and Natelson complain are the result of violations by the federal government of the existing constitutional limitations on their powers – and the States’ acquiesce in such violations!

Balanced Budget Amendment: Our Constitution already limits federal spending to the enumerated powers. But for 100 years, everyone has ignored the existing limits on federal spending. A BBA would replace the existing enumerated powers limitation on federal spending and create a new constitutional authority to spend on whatever the President or Congress put into the budget! A BBA thus legalizes spending which is now unconstitutional as outside the scope of the enumerated powers, and transforms the federal government into one which has constitutional authority over whatever Congress decides to spend money on.

Federal Regulations: Article I, §1 vests all lawmaking powers in Congress. So all regulations issued by federal executive agencies which purport to apply to the Country at Large are unconstitutional as in violation of Art. I, §1; and as outside the scope of the enumerated powers. An amendment such as Natelson proposes is a grant of constitutional power to federal executive agencies to make Laws.

Supreme Court Opinions: This shows why Roe v. Wade is unconstitutional. This shows why the opinions banning Christian speech in the public square are unconstitutional. The remedy our Framers advised for such usurpations is impeachment and removal from the Bench (Federalist No. 81, 8th para), and nullification by the States of unconstitutional opinions [link].

Natelson cannot produce any writing from a Framer which says that when the Supreme Court violates the Constitution, the remedy is to amend the Constitution. Our Framers were not silly men. And what would such an amendment as Natelson proposes say? That federal judges must obey the Constitution? Article VI already requires that. Does Natelson propose amendments which list the subjects on which federal courts may not act? But Art. III, §2, cl. 1 already lists the kinds of cases they may hear. But we ignore those existing limitations.

Term limits amendment: If we learned anything from the last election, it should be that we will not in the foreseeable future have an honest federal election. With H.R.1, Congress is likely to attempt to “legalize” the unconstitutional shenanigans which enabled the theft of the last election. So your vote won’t matter!

But even if we had honest federal elections, consider this: As you decrease the powers of elected members of Congress by making them transient beings – you increase the powers of the “deep state”. With term limits, elected members of Congress would become like train cars passing in the night – the power would be solidified in the nameless, faceless, un-elected bureaucrats who infest the Executive Branch.

Anyone who analyzes the amendments proposed by COS and their allies can see that their amendments increase the powers of the federal government by delegating powers already usurped, granting new powers, or stripping States of their existing powers. See: ‘Mark Levin’s “Liberty” Amendments: Legalizing Tyranny’ [link]; ‘COS Project’s “simulated convention” dog and pony show and what they did there’ [link], & ‘The “Regulation Freedom” Amendment and Daniel Webster’ [link].

4. Amendments to “prevent federal abuse” can backfire!

When amendments correct defects in the Constitution, they are clearly a good thing. The 12th & 13th Amendments, like the 11th Amendment, corrected defects in the Constitution. Section 1 of the 14th Amendment extended Citizenship to the freed slaves and provided constitutional authority for the much needed federal Civil Rights Act of 1866.

But amendments added to prevent federal abuses backfired. In Federalist No. 84 (10th para), Alexander Hamilton warned against adding a Bill of Rights to our Constitution. Under a Constitution of enumerated powers, the government may lawfully do only what the Constitution permits it to do. So

“…why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? … it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power...” [emphasis mine]

But Hamilton’s warnings were brushed aside.

Beginning in the 1920s, Justices on the Supreme Court – who were “disposed to usurp” – fabricated a doctrine under which they claimed that §1 of the 14th Amendment “incorporated” various parts of the first 8 Amendments so that those Amendments restricted the States! This how the Supreme Court usurped power to dictate how the States must apply the Bill of Rights. As shown here (at 12. & endnote 4), this is the theory the Supreme Court used to ban Christian speech from the public schools and County courthouse lawns.

Throughout the years, the Supreme Court has extended its “incorporation doctrine” to dictate to the States how they must apply the 1st, 2nd, 4th, 5th, 6th, and 8th Amendments [link].

Furthermore: Amendments usher in implementing federal statutes and executive agency regulations – and judicial power over the subject of the Amendment becomes vested in the federal courts. Article III, §2, cl.1, says, “The judicial Power shall extend to all Cases … arising under this Constitution …”

Beware of what you ask for.

5. Natelson’s assurances that a convention would consist of “state delegations” sent “to propose pre-specified amendments” are false and reckless in the extreme 2

Natelson presents nothing to support his assurances. He can’t because his assurances are contradicted by the Constitution; and by the federal “amendments” convention of 1787, which is our sole historical precedent for a federal convention called by a Congress to address our federal Constitution.

Article V, US Constit., says:

The Congress, whenever two thirds of both Houses shall deem necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing amendments…” [italics added]

Article I, §8, last clause, US Constit., says Congress shall have the Power…

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof.” [italics added].

So Congress calls the convention and makes the laws necessary and proper to organize the convention.

The April 11, 2014 Report of the Congressional Research Service [link] shows that Congress recognizes that Article V grants to Congress exclusive authority to set up a convention:

“Second, While the Constitution is silent on the mechanics of an Article V convention, Congress has traditionally laid claim to broad responsibilities in connection with a convention, including (1) receiving, judging, and recording state applications;(4) determining the number and selection process for its delegates…” (page 4).

So Congress has the power to receive and judge the applications; how to count the applications, which ones to count, whether to aggregate the different forms of applications, etc.

Nothing in the Constitution permits State Legislatures to dictate amendments to be considered. The convention is the deliberative body.

Nothing in the Constitution requires Congress to permit States to select Delegates. Congress – the same Congress which Natelson tells us is “abusive”, “mendacious” and “revels in its power”- has the power to select the Delegates. Congress may appoint themselves as Delegates. 3

6. The People have the power to take down and set up governments

The push for an Article V convention is a hoax. The Globalists who stole the Election want a new Constitution. They are using “getting amendments to rein in the federal government” as a pretext for getting a convention where a new Constitution is sure to be imposed. Madison expressly warned of this stratagem [link].

Our Declaration of Independence is part of the “Organic Law” of our Land. It recognizes that The People take down and create governments. When Delegates meet in convention to address a Constitution, they are the Sovereign Representatives of The People. They cannot be controlled by the “creatures” of Constitutions previously ratified by the People [link].

In Federalist No. 40 (15th para) James Madison invoked the “transcendent and precious right” of a people to throw off one government and set up a new one as justification for the Delegates to the federal “amendments” convention of 1787 ignoring their instructions to propose amendments to the Articles of Confederation, and instead writing a new Constitution with its own easier mode of ratification.

Accordingly, even if the “abusive” and “mendacious” Congress doesn’t “revel in its power” to appoint Delegates, but graciously permits States to select Delegates, State Legislatures have no competent authority to control Delegates at a convention called by Congress pursuant to Article V. The Delegates, as Sovereign Representatives of The People, have the power to eliminate the federal & state governments! 4

Heed the warning of the great statesman Daniel Webster:

“The politician that undertakes to improve a Constitution with as little thought as a farmer sets about mending his plow, is no master of his trade. If that Constitution be a systematic one, if it be a free one, its parts are so necessarily connected that an alteration in one will work an alteration in all; and this cobbler, however pure and honest his intentions, will, in the end, find that what came to his hands a fair and lovely fabric goes from them a miserable piece of patchwork.” Daniel Webster, 4th of July Oration, 1802.


1 In a speech Natelson gave on Sep. 16, 2010 [link at top of p. 2], he said he would no longer call what he wanted a “constitutional convention”; but would ‘put our concepts on “reset” ’ and henceforth call it a “convention of states”.

2 Noted conservative constitutional litigators and law professors William Olsen and Herb Titus have already recognized that COS’s “false assurances” are “reckless in the extreme” [link].

3 Page 40 of the CRS Report says it’s been recognized that there doesn’t seem to be any “… constitutional prohibition against [U.S.] Senators and Representatives serving as delegates to an Article V Convention..”

4 The proposed Constitution for the Newstates of America [link] does just that. Article XII, §1 provides for ratification by a referendum called by the President. Do YOU trust the voting machines?

Tenth Amendment Center: When Can an Originalist Scholar Begin with the Constitution’s Text?

Constitutional scholar Rob Natelson at the Tenth Amendment center writes When Can an Originalist Scholar Begin with the Constitution’s Text?

I. The question

I recently wrote a post for the Federalist Society Blog, in which I examined the Constitution’s enumeration of who can be impeached and convicted. I concluded that the enumeration, coupled with the rules of construction the Founders intended to accompany the document, created a presumption that ex-officers could not be. But I added that this presumption was rebuttable by extraneous evidence.

Professor Michael Ramsey wrote a notice on the posting. He remarked that most originalist inquiries can proceed as I did—that is:

*          examine the text and apply the rules of construction to it, thereby establishing a presumptive meaning, and then

*          turn to outside evidence to see of it rebuts, qualifies, or reinforces the presumptive meaning.

I agree with Professor Ramsey. However, his comment got me thinking about the minority of cases where one cannot proceed in that manner. These are instances in which the text remains unclear even after applying the rules of construction. Moreover, sometimes after examining the text it even remains unclear whether that text is unclear. In fact, what seems obvious on initial examination may be entirely wrong.

In such cases, we must consult outside evidence to establish a presumptive meaning.

Fortunately, the impeachment enumeration I addressed in my FedSoc post was clear, at least as far as I needed to go. However, as explained below, on first reading another impeachment phrase—“high . . . Misdemeanors” —is not.

In this post I offer some guidance as to when an initial resort to extraneous evidence is necessary to establish the text’s presumptive meaning. For illustrations, I’ve mined my thirty or so articles and book chapters on the original meaning/understanding of specific constitutional clauses.

II. Dictionaries

In some cases, I have been able to reach a presumptive meaning by examining 18th century dictionaries. Mind, though, that when consulting dictionaries, one must not stop with Samuel Johnson, because his definitions are sometimes archaic or idiosyncratic. I have about 25 18th century dictionaries in PDF form, not counting multiple editions. Some are specialized, such as dictionaries focusing on law, military terms, Latin, or Law French. Most are general-purpose. When writing on original meaning I consult all or most of them. I find I can learn much from how their definitions vary or track each other.

But dictionary searches can prove inconclusive. Sometimes dictionaries offer multiple definitions, so you have to examine extraneous evidence to determine which one the Constitution employs. Sometimes a term appears in a specialized dictionary, but not in others. Sometimes the definition employed by the Constitution does not appear in any dictionary at all.

Results like this compel resort to extrinsic evidence to determine presumptive meaning. Here are some typical scenarios.  You will notice that some of them overlap.

III. Some Scenarios

Scenario #1: The dictionaries offer several common meanings of a word or phrase, but it is not clear which one the Constitution employs

I encountered an example when researching my article on the Coinage Clause. The Coinage Clause reads, “The Congress shall have Power . . . To coin Money, regulate the Value thereof, and of foreign Coin . . . ” As is true today, during the 18th century the most common use of the verb “to coin” was to strike metallic tokens. Libertarians long relied on the assumption that this was the Constitution’s meaning, and therefore claimed paper money is unconstitutional. Left-of-center commentators relied on the same assumption to illustrate the impracticality of originalism.

However, no one seems to have noticed a textual problem with interpreting coinage as referring only to metal. That interpretation would leave Congress in the unlikely position of enjoying power to regulate foreign metallic tokens, but bereft of power to regulate foreign paper currency.

The 18th century dictionaries reported a secondary meaning of “to coin:” to fabricate. Today that usage is exceedingly rare: a survival is the expression “to coin a phrase.” But a survey of 18th century databases revealed that the secondary meaning was then much more common. People spoke of “coining” paper money, leather money, and so forth.

Thus began a full-bore investigation into the history of money, especially the extraordinary monetary innovations undertaken in the colonies of British North America. After acquiring this background, my presumptive conclusion was that the Coinage Clause authorized Congress to issue and regulate “coin” in media other than metal. Ambiguous comments during the Constitutional Convention were insufficient to rebut this result, and the ratification-era debates only reinforced it.

When researching my early article statutory retroactivity, I encountered another problem with which the dictionaries offered no help. This was ambiguity of the phrase “ex post facto law.” During the 18th century, the term might refer only to criminal statutes, or it could include retroactive civil statutes as well. The framing and ratification records clarified that the prevalent understanding was the former. A search for contradictory evidence led only to confirmation: James Madison’s and John Lansing’s subsequent drive for Takings and Due Process clauses to limit the scope of civil retroactivity.

Scenario #2: A word or phrase with an ordinary meaning appears in the Constitution, but as a legal term of art

In this scenario, a colloquial meaning may appear in lay dictionaries, but the manner in which the Constitution uses the word appears in law dictionaries or other legal works.

Over the years, I’ve been impressed by how often a puzzling word—or even, at first blush, an unpuzzling one—turns out to be an 18th century legal term of art. It’s not so surprising, if you think about it. The chatter about how the Constitution is written in “plain language” is not quite the truth. The Constitution is a legal document and it was written by a group of people about two-thirds of whom had been practicing lawyers. Most of advocates who explained it to the public were lawyers, Madison and Tench Coxe being the most notable exceptions.

Nor were their explanations necessarily unintelligible to the involved American public, because that public was then unusually well educated in law: As Edmund Burke remarked when urging conciliation with America, “In no country perhaps in the world is the law so general a study.”

Of course, you expect a phrase like “habeas corpus” to embody a legal meaning. You don’t expect the same from a word like “necessary.” Yet in research on the Necessary and Proper Clause, I found that the Constitution uses “necessary” as a signal for incidental powers—a very common approach in 18th century legal documents.

Learning enough to establish a presumptive meaning for the Necessary and Proper Clause required deep initial research into contemporaneous law books, documents, and judicial cases.

Other examples of 18th century legal boilerplate reproduced in the Constitution include “Privilege” and “Privileges and Immunities.” A search through contemporaneous law and legal documents found that they denoted government-created entitlements, including very important ones such as trial by jury and “the Privilege of the Writ of Habeas Corpus.” But as the Constitution used those words, they did not comprehend rights established by nature and nature’s God. They were creations of government. Justice Bushrod Washington therefore got it largely wrong in his famous, and somewhat incoherent, passage in Corfield v. Coryell.

It probably comes as no surprise that “direct tax” was another legal term of art. What did surprise me is that the concept was far more defined and comprehensive than commonly supposed.

Both Britain and American states adopted omnibus tax statutes that provided for assessment of certain items and imposed levies upon them. In Britain and some states these were called “Land Tax” laws. But they levied on much more than real estate. They taxed human beings (capitations on both free and slave); status; wealth; professions (“faculties”) and other activities; wages, interest, profits and other kinds of income; household items, livestock, and other personal property. All the levies imposed by these omnibus statutes, and others like them, were called “direct taxes.” (Other statutes imposed indirect taxes, primarily on consumption or discrete events: excises and other “duties.”)

Thus, the Supreme Court’s much-abused case of Pollock v. Farmers’ Loan and Trust Company was correctly decided, for income taxes are direct taxes after all.

Obviously, arriving at a presumptive meaning of “direct tax” required a great deal of work with extrinsic evidence, including but not limited to 18th century tax statutes.

One final example: For decades commentators had argued over the Constitution’s term “high . . . Misdemeanors” as a ground for impeachment. Apparently only one researcher, Raoul Berger, had considered whether the phrase might be a legal term of art. But his investigation, undertaken without the benefit of modern word-search technology, was cursory and unsuccessful. Too late to prevent me from embarrassing myself in print with another hypothesized definition, I finally thought to check legal sources and certain lay sources (such as encyclopedias) explaining legal terms.

The answer was decisive: High misdemeanors were serious crimes not meriting the death penalty, such as bribery (which the Constitution mentions in this context) and assault. A mere breach of fiduciary duty was not, as I previously had thought, a high misdemeanor.

Scenario #3: The Constitution’s use of a term is not in dictionaries at all

Sometimes the framers employed words and phrases in ways that don’t appear in 18th century dictionaries or similar reference works. Instead, the constitutional meaning arose in a context the lexicographers had overlooked.

I encountered this situation when researching the Constitution’s use of the word “emolument.” The dictionary definitions were very broad: “profit” or “advantage.” Those broad definitions, I found, accurately reflected much lay usage, but for various reasons they made no sense in the constitutional text. Hence it became necessary to consult extraneous evidence to arrive at a presumptive meaning.

It turns out that in political discourse, “emoluments” carried any of three narrower meanings: (1) financial gain or, more commonly (2) gain from salary or wage plus associated fringe benefits, or (3) fringe benefits alone. Placing the Constitution’s emoluments clauses within the wider context of a then-current trans-Atlantic movement to reform how government officials were compensated enabled me to fix on what I believe is correct: An “emolument” as the Constitution uses the term refers to gain from a salary or wage plus associated fringe benefits.

Scenario #4: Some of the Constitution’s words are Americanisms

This is really a subset of Scenario #3, because these are usages that do not appear in the dictionaries, almost all of which were published in Britain.

For example, in researching my article on the Taxation Clause I found that “Eighteenth century British lay dictionaries defined ‘duty’ widely enough to include almost any financial exaction” and commercial dictionaries defined it more narrowly. But in American usage, a duty was “any financial exaction that did not qualify as a direct tax.” Thus, a duty could mean an indirect tax or a non-revenue-producing exaction to regulate commerce or other conduct. Other evidence reinforced this presumed meaning.

In 1787, the word “constitution” was an Americanism-in-development. In Britain it referred only to the political system, and that is how all contemporaneous dictionaries defined it. That was the American meaning when the Declaration of Independence was written (“a jurisdiction foreign to our Constitution”), and it was still employed that way in Virginia’s 1786 call for the 1787 federal convention. (Contrary to common belief, the convention was called in late 1786 by the Virginia legislature, not by Congress; Congress’s February 21, 1787 resolution merely endorsed the effort after seven states already had accepted Virginia’s invitation.)

However, the meaning was in flux. The “frames of government” adopted in the states often were called “constitutions.” Then came the U.S. Constitution, whose title sealed the change. A new Americanism was born.

Scenario #5: A word may have a constitutional meaning we don’t suspect because that meaning is now archaic

My favorite example of this—in fact, I think a perfect one—is the appearance of “perfect” in the Constitution’s Preamble. Modern Americans sometimes puzzle over how a Union can be made “more perfect.” This is because we almost always use this word to mean “without flaw.” How can something be “more without flaw?”

The answer is that the more common 18th century use of the term was the Latinate meaning of “complete” (Latin: perficere, to finish). The new Union was to be more complete—more tightly woven together—than the union formed by the Articles of Confederation.

Fortunately, there are not many non-legal archaisms in the Constitution—at least not many that sneak up on you. They are more likely to do that when you read other Founding-Era materials.

A good example was Leonard Levy’s mistaken conclusion that the Senate was to be the primary conductor of foreign policy because the framers sometimes referred to the president as the foreign policy “agent.” Levy didn’t realize that there was another, more Latinate, meaning of “agent” then common. Although an “agent” could mean a representative, it also could mean a “doer” or “driver” (from agere, to do or drive). The founders were using the latter sense: The president, not the Senate, was to be the primary driver of foreign policy.

Of course, you might not realize that a word is an archaism and therefore not think to consult a dictionary. That is one reason I recommend that constitutional scholars immerse themselves in 18th century writings and become familiar with the Latin language. (“But that’s time-consuming and hard!” Answer: “You bet it is.”) Latin was the Founders’ second language and significantly influenced 18th century English usage. If you have it, you see much more.

IV. Conclusion

Professor Ramsey is correct to say that we usually can reach a presumptive meaning of a constitutional provision from the text alone. But there are many situations in which you have to consult extrinsic sources before arriving at a presumptive meaning.

If you find yourself in such a situation, I can offer two sources of comfort: First, much of the evidence you explore while seeking the presumptive meaning leads you to evidence that rebuts or reinforces that meaning. Second, the historical journey is usually fascinating.

Tenth Amendment Center: McCulloch v Maryland Supreme Ct Did NOT Support Expansive Federal Power

Chief Justice John Marshall

This article at the Tenth Amendment Center discusses the McCulloch v Maryland case. Harvard Law Today earlier this year said that the 1819 case paved the way for the modern administrative case. But Constitutional scholar Rob Natelson here says that this was not the intent Chief Justice John Marshall’s opinion at the time, but rather that the case in point was a much narrower ruling.

Why McCulloch v. Maryland – now 200 years old – is not a “big government” manifesto

…There are at least two well-grounded reasons Marshall’s opinion in McCulloch is important. The first is that it clarified some basic facts about the constitutional system.

McCulloch explained that the people, not the states, created the federal government and granted its powers. As a young lawyer, Marshall had been a leading spokesman for the Constitution, particularly in Virginia. In McCulloch, Marshall explained—as James Madison had before him—that the Constitution’s legal force comes from approval by popularly-elected state ratifying conventions meeting from 1787 through 1790.

It follows that the first rule of constitutional interpretation is the understanding of the ratifiers. It is not, as some conservatives say, the “intent of the framers” or “the original public meaning.” Nor should we, some liberals contend, construe the Constitution through “evolving social standards” or novel interpretive theories.

Moreover, McCulloch clarified that under the Constitution state and federal governments operate fairly independently of each other. Neither level of government should try to dictate to the other nor obstruct the other’s core functions. Because Congress designed the national bank to assist Congress in carrying out its core functions, McCulloch voided a state attempt to tax the bank.

The second reason McCulloch is so important is Marshall’s use of established law and legal methods—rather than tailor-made theories—for interpreting the Constitution. This is noteworthy in his discussion of whether the national bank was valid under the Constitution’s Necessary and Proper Clause.

The Constitution lists the powers of Congress. These include such functions as national defense, borrowing money, taxing, postal system, the monetary system, and regulating foreign and interstate commerce. In addition to these explicit items, the Constitution adds that “The Congress shall have Power . . . To make all Laws, which shall be necessary and proper for carrying into Execution” its listed powers.

The Constitution list of explicit powers does not include chartering a national bank. In McCulloch, the court had to determine whether chartering the bank was “necessary and proper” to carrying out Congress’s explicit powers.

Marshall, like other lawyers of his time, was familiar with documents by which one person or group granted authority to another—documents such as powers of attorney, wills, trust instruments, and statutes. The phrase “necessary and proper” was common in such documents.

As used in the Constitution, the “necessary and proper” phrase meant that in addition to the functions explicitly listed, the person or group receiving authority could exercise incidental powers. These were lesser powers intended to accompany the listed ones. Lesser powers usually were incidental if they were customary or necessary to carrying out the listed functions…

…In the 20th century, the Supreme Court cited McCulloch to uphold unprecedented federal spending and regulatory programs. Law school constitutional law courses sometimes treat McCulloch the same way.

But with all respect, this approach is the product of historical ignorance. Those who depict McCulloch as a “big government” decision generally are unaware of how the Founders understood the Necessary and Proper Clause and how the bank debates of 1791 focused on the details of incidental powers law. They usually are unaware of critical changes in the English language—such as the fact that when Marshall’s used the words “convenient”and “appropriate” they embodied narrower and tougher standards than they do today. Without that kind of historical perspective, McCulloch is a difficult case to understand…

Click here to read the entire case at the Tenth Amendment Center.

Tenth Amendment Center: How Our Constitution Was Supposed to Work

Constitutional scholar and co-author of The Origins of the Necessary and Proper Clause  and The Original Constitution Rob Natelson has written an article based on information from newly re-published essays by founder Tench Coxe about some limitations on federal power that were known and spelled out by the founding fathers.

How our Constitution was supposed to work: new evidence comes to light

Judging by the promises of presidential candidates, you might think the federal government is designed to fix whatever ails us: health care, education, crime, infrastructure, the common cold.

But the Constitution doesn’t grant the federal government such unlimited authority. And neither Congress nor the presidency nor the courts were created to exercise it.

The Constitution fashioned the federal government to address a limited number of activities, contained in the document’s “enumerated powers.” The remainder were exclusively the domain of state and local government and the private sector. This system of divided authority is called “federalism.”

…Despite the Constitution’s federal structure, many in the founding generation didn’t think it limited the central government sufficiently. They wanted to be able to govern themselves in their own states and local communities. They didn’t want Congress or federal judges or officials imposing uniform policies on the entire country.

These members of the founding generation had good reasons for fearing centralized power. They knew their history: Concentrated power usually grows into oligarchy or dictatorship. They questioned whether Congress would have the information or judgment necessary to tailor laws for every nook and cranny in the nation. They recognized that when government remained local, citizens enjoyed more say in how it was run. If someone was severely disaffected with state policies, he always could move to a different state.

This option of moving away is a vital safety valve. Without it, there is no practical way to vent anger among persistent political losers. Anger gives rise to hate: Hate fosters divisiveness and repression and, and in extreme cases, civil war.

Indeed, modern federal efforts to impose uniform “solutions” on the entire nation may be a leading cause of today’s toxic political environment.

…Coxe’s essays itemize many of the activities over which the Constitution granted the federal government little or no jurisdiction. Among them were social services (i.e., care for the poor and health care), education, religion, real estate, local businesses, most roads and other infrastructure, nearly all criminal law matters, and most civil court cases.

When people believed government should regulate those areas, the Constitution mandated that they turn to state and local government. No fleeting national coalition would be permitted to dictate to the entire country…

Click here to read the entire article at the Tenth Amendment Center.