I’m sorry, but Kevin Gutzman is still totally wrong about the Constitution. His response to my article sends up a flurry of errors and misconceptions but leaves my critique of his work not only undisturbed but unaddressed. I am glad to set him straight point by point.
1. “[P]roducts of law school miseducation like Bramwell,” are “subjected to reading in ‘constitutional law,’ the body of case law purporting to implement the U.S. Constitution,” which results in “indoctrination” in the “bipartisan consensus that the Federal Government is really an unbounded national government.” I’ll leave aside whether teaching an actual body of law amounts to “indoctrination.” Contrary to Gutzman, the interpretations I offered of the Constitution are not only inconsistent but positively at loggerheads with contemporary constitutional law. If anything, they should have elicited a big fat “WTF?” from anyone who actually knows any con law. For one thing, I argue that Congress’s enforcement powers under the Fourteenth Amendment are virtually unlimited, despite that the Supreme Court has held that they are virtually non-existent. See City of Boerne v. Flores (1997). (I probably have the most extreme view of the original meaning of the Enforcement Clause of the Fourteenth Amendment of anyone in the United States.)
For another, I may be the only person ever to argue that the Thirteenth and Fourteenth Amendments ratified post facto John Marshall’s decision in McCulloch v. Maryland. Yes, dear Takimag reader: you were subjected to an argument so bizarre and outlandish that it has appeared only once before in print, and that was in an article by me for Critical Review. Nevertheless, Gutzman warns that I am regurgitating the same nonsense I learned in law school. Fine, I’ll make him a bet: I will bet him $1,000 that in the span of, say, one year, Gutzman can’t find a single law school graduate in the United States who was taught in class my ultra-expansive theory of Congress’s powers under the Fourteenth Amendment and my theory of Enforcement Clauses / Necessary and Proper Clause interraction. If Gutzman wants to take me up on this bet, he should let me know and we can work out the terms.
2. Supreme Court justices have “felt free to impose their own ever-evolving views of the ‘evolving standards of decency’ in a maturing society.” For the record, the phrase “evolving standards of decency” shows up in only one line of cases, namely, those interpreting the Eighth Amendment prohibition on cruel and unusual punishment. It appears, according to Westlaw, in a total of 59 Supreme Court opinions. How about the phrase “enumerated powers,” so beloved of libertarians, and which no more appears in the actual Constitution than “evolving standards of decency”? It shows up in 116 cases, including more than 60 since the New Deal revolution. That doesn’t prove that the Supreme Court has interpreted the Constitution as a libertarian document. It does show (however crudely) that constitutional law no more embodies pure Brennanism than it does libertarianism. Indignation at Supreme Court opinions is certainly called for at times. But that doesn’t excuse exaggerating what those times are. “Evolving standards of decency” is not the touchstone of all Supreme Court decision-making.
3. Gutzman’s approach to the Constitution follows from the principle of “government by consent of the governed.” No, it does not. Lysander Spooner decisively refuted 140 years ago the idea that the people ever consented to the Constitution. First, nobody ever performed an act to manifest his consent. Only a few dozen drafters ended up actually signing the Constitution, and that was only to submit an official version to the states. Nobody else in America was so much as asked whether he even agreed with it. Instead, the Constitution was adopted in accordance with its own self-executing ratification provisions—which is another way of saying that, if you didn’t like it, then tough. Although members of State ratification conventions did formally ratify the Constitution, they acted not in their individual capacities but only as representatives. (And of course, many of those representatives voted against the Constitution.) As for everyone else, though some did have the privilege of voting for their representatives, exercising a right to vote is by no means equivalent to approving an election’s outcome, much less consenting to what one’s representatives do in office. Finally, of course, women, non-whites and the unpropertied were excluded from the franchise altogether. Rather than say that the people consented to the Constitution in 1789, it would be more accurate to say that a handful of men foisted it on everyone else.
Even if the people did somehow consent to the Constitution in 1789, later generations have never had the chance to do so. They are subjected to the Constitution as arbitrarily as citizens of other nations are subjected to hereditary monarchy. These days, probably only a minority of Americans would consent to the Constitution as written. Only a tiny fraction, needless to say, would consent to the Constitution as interpreted by Gutzman. Yet Gutzman appeals to consent of the governed! Verily, if it’s the consent of the governed that Gutzman wants, the last thing he should be championing is the United States Constitution.
Anyway, who cares whether the people consent to their government? The people could consent to a viciously unjust government or one inimical to their well-being. Far more important than whether the people are governed by consent is whether they are governed well. Any other position must assume a nihilistic denial of any such thing as a public good. By appealing to the principle of self-government as it were self-evidently laudable, Gutzman has unwittingly revealed that he has no compelling justification for following the Constitution.
4. McCulloch v. Maryland “held ... that the Necessary and Proper Clause gave the Congress very wide legislative powers.” This misstates the holding of McCulloch. Read Marshall’s opinion carefully: Marshall didn’t think the Necessary and Proper Clause was needed to establish that Congress could create a bank. Rather, he argued that Congress had this power by implication under the Tax and Spending Clause. The Necessary and Proper Clause merely underscores that Congress has powers implied from its specifically enumerated powers. The Necessary and Proper Clause, for Marshall, does no additional work.
5. Bramwell “cit[es] McCulloch v. Maryland on behalf of the idea that the Constitution created a Congress with virtually unlimited powers.” No, I do not. I cite no case for this proposition but rather the actual text of the Constitution—specifically, the Enforcement Clause of the Fourteenth Amendment. McCulloch is only relevant insofar as it provides evidence of the original public meaning of this Enforcement Clause. In addition, I argue that, whether or not McCulloch was correctly decided, by 1865 it had been ratified as correct. I don’t see how I could have been more clear on this point. I wrote, “For better or worse, the dispute of the original meaning of [the Necessary and Proper Clause] is now largely irrelevant,” for “the actual Constitution incorporates [McCulloch‘s understanding of Congress’s implied powers].”
In response, Gutzman treats me to a lengthy history lesson on how Marshall got it all wrong back in 1819. Whether Marshall did so or not, however, is irrelevant to my argument. Just for the fun of it, I’ll even concede Gutzman’s attack on John Marshall and take it further: McCulloch is the worst decision in the history of the Supreme Court. Nevertheless, McCulloch, by operation by subsequent Amendments, still represents the correct interpretation today of Congress’s implied powers and the Necessary and Proper Clause.
6. The distinction between the meaning of a provision and the intentions of those who wrote and ratified it “is a common distinction among lawyers who want to concede unlimited authority to some instrumentality, agency or branch of government.” No, it is not. The disctinction was introduced by originalists in order to save originalism and thereby help to defend the view that the Constitution limits the powers of the Federal government. For example, Antonin Scalia:
It is the law that governs, not the intent of the lawgiver. ... Men may intend what they will, but it is only the laws that they enact which bind us.
[W]hat the ratifiers understood themselves to be enacting must be taken to be what the public at that time would have understood those words to mean. It is important to be clear about this. The search is not for subjective intention.
Contemporary libertarian originalists such as Gary Lawson and Randy Barnett likewise endorse the disctinction. To be sure, Gutzman, as I have noticed, is rather promiscuous in leveling the charge of lack of fidelity to the Constitution, so perhaps he would denounce Scalia, Bork, Lawson, and Barnett as all big government Constitution-haters. Nevertheless, the direction in which Lawson and Barnett and, to a large extent, Scalia hope to lead constitutional law is towards limiting the powers of the Federal government. I happen to disagree with them that original meaning saves the cause of limited government. Still, it has undeniably become the favored constitutional theory among libertarians today. Gutzman overlooks this history, or simply doesn’t know it.
7. “A provision’s meaning,” say the advocates of the distinction between meaning and intention, “changes from to time as the society ... becomes more enlightened.” Wrong. Libertarian judges and scholars have favored meaning over intention precisely because they hope to fix permanently the proper interpretation of the Constitution. Thus, Scalia writes in the very same essay in which he denounces original intent: “If the Courts are free to write the Constitution anew, they will, by God, write it the way the majority wants ... This is, of course, the end of the Bill of Rights, whose meaning will be commited to the very body it was meant to protect against: the majority.” Randy Barnett, another critic of intentionalism, argues that the Constitution can only have legitimacy if its meaning is “locked in.” The distinction was invented, in short, to bind judges to an unmalleable Constitution.
8. Thomas Jefferson wrote that the federal Constitution should be enforced “according to the true sense in which it was adopted by the States, that in which it was advocated by its friends.” Indeed, Jefferson wrote this, but it by no means implies that we should interpretation the Constitution according to anyone’s original intent. Obeying Jefferson’s injunction, let us see how the Constitution’s “friends” actually thought the Constitution should be interpreted.
Start with Alexander Hamilton:
The Secretary of State [i.e., Thomas Jefferson] will not deny, that, whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction. [A]rguments drawn from extrinsic circumstances, regarding the intention of the [constitutional] convention, must be rejected.
In other words, says Hamilton, pointing to an area of common agreement with Jefferson, one must not consult the particular expectations of the men who wrote the Constitution. I realize Gutzman probably thinks Hamilton is an evil statist. Still, as the author of many of the Federalist Papers, he surely ranks as a “friend” of the Constitution. Or, if Gutzman won’t take Hamilton, here is James Madison, as his remarks are recorded in the Annals of Congress:
When the members of the floor, who were members of the General Convention ... were called on in a former debate for the sense of that body for the Constitutional question [at issue], it was a matter of some surprise [for Madison]. ... [A]fter all [in Madison’s view] whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.
Or Madison again:
As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Insitutions, & as a source parhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.
In other words, the two greatest of the Framers—Hamilton and Madison—did not believe that, in interpreting the Constitution, one should look into the intention of those who wrote it. On the contrary, they specifically admonished us not to do so. Gutzman is thus trapped in a contradiction: he says we should follow the original intent of the Framers, but the original intent of the framers was that their various intents should be ignored! This point was made back in 1985 by H. Jefferson Powell. Perhaps Powell is just another evil law professor out to traduce the Constitution. Nevertheless, it is suprising that Gutzman did not anticipate this well-known objection.
9. “A provision’s meaning” should be equated “with the intention of its enactors.” Frankly, I can’t tell what exactly Gutzman thinks the relationship between a provision’s meaning and the intentions of those who wrote it really is. “The equation,” as Gutzman puts it “of a provision’s meaning with the intentions of its enactors” is harmless if all that “equation” implies is that one must look no further than the text of a provision to ascertain the intentions of those who enacted it. Plainly, however, Gutzman wants intentions to do independent work. He argues, for example, that John Marshall’s interpretation of Congress’s implied powers is mistaken because many states would never have ratified the Constitution had their representatives expected that Congress’s powers would be so liberally construed. In short, Gutzman thinks subjective expectations can determine the meaning of the Constitution’s actual words.
For reasons Madison, Hamilton and possibly even Jefferson anticipated, Gutzman’s appeal to subjective expectations is unpersuasive. The problems with intentionalism are several:
—It is unclear whose expectations one should consult. We can start with the handful of men who actually drafted the Constitution’s provisions. But the final draft was approved by a convention of about 50 delegates, so perhaps their intentions should be consulted as well. Yet the Constitution was actually ratified by state conventions, so perhaps it is the intentions of the representatives at these conventions that control. But why stop there? The Constitution was ratified in the name of “We the People,” so perhaps the intentions of all Americans should be examined as well. All these problems arise before we even get to the men and women who amended the Constitution since.
—There is no way to properly weight the various intentions that must be consulted. Inevitably, in investigating the intentions of the men who wrote and ratified the Constitution, scholars focus on those whose thoughts survive in written form today. But why should the intentions of those egotistical enough to record their thoughts for posterity be privileged over the more reticent or less prolific—not to mention those not lucky enough to have had all their papers preserved? The thoughts of most men are swallowed up and lost in the wide womb of uncreated night. Evidently, their intentions don’t count.
—Intentions are subjective states that cannot actually be reconstructed. We have in reality have no access to the subjective expectations of any of the men who wrote or ratified the Constitution. We can only rescontruct those expectations based on written texts that they have left behind. So, in practice, the appeal to intentions amounts to the view that the Constitution is only one text among many that have quasi-constitutional status. Why texts that have never even been ratified should prevail over the actual Constitution, however, is a mystery.
—Intentions conflict. One ratifier may have expected an expansive national government; another may have expected a limited one. Given conflicting intentions, there is no way in principle to aggregate the intentions of all.
—Intentions come in all different kinds. Intentions may come as hopes or fears, not to mention fantasies or paranoias. They have widely varying intensities. The Federalist Papers, for example, were written to assuage the fears of those skeptical of the Constitution. Should the fears of the skeptics prevail? Why not instead the hopes of the nationalists? The variety of relevant individual intentions cannot be reduced to a single, uniform group “intention.”
—Intentions may be general or specific. The ratifiers of the Constitution doubtless had a specific intent, say, to end trade wars between the States and to establish an effective national court system. But they also had a much more general intent, say, to establish a lasting and just government. The more general the intent, the more liberally one may read the Constitution. At the highest level of generality, the appeal to intentions becomes a warrant to disregard the text of the Constitution entirely. Yet it is unclear why the most general intentions should not prevail over the more specific ones.
For these reasons, few originalists today defend original intent. Yet Gutzman still wants to cast incense at Madison’s shrine to divine the proper interpretation of the Constitution. His professed methodology is deeply flawed.
10. Contra Bramwell’s characterization, Gutzman in fact denies that “nobody who actually reads the Constitution could possibly conclude” that the Constitution creates an expansive Federal government. I am grateful to be corrected on this point, but I am also flabbergasted by Gutzman’s apparent concession that the Constitution’s meaning isn’t clear. If the Constitution isn’t reasonably clear, after all, then there can little hope for fixing its proper interpretation—except, perhaps, by consulting not the Constitution but historians such as Gutzman. If Gutzman wants to defend originalism, he should have bit the bullet and argued, as I suggested, that nobody who reads the Constitution fairly could interpret it as granting extensive powers to the Federal government. In characterizing his views as I did, I was actually trying to help him out.
11. Bramwell believes that “judges should feel free to ‘interpret’ the Constitution in any way they like.” Nothing in my article suggested I hold any such view. I argued only that, contrary to many libertarian originalists, the Constitution gives Congress vast powers traditionally reserved to the States. Gutzman in response blasts away at lawless judges. But I didn’t even address how judges should interpret the Constitution. Gutzman is inveighing against someone, clearly. That someone just isn’t me.
Now, I should say that I regret causing potential misunderstanding by asking, rhetorically of the Fourteenth Amendment’s rights provisions, “what does that mean?” In fact, I think it is quite clear how a reasonably observer in 1868 would have understood “privileges or immunities” and “equal protection of the laws”: he would have understood them to refer to fundamental individual rights.
At the same time, though the meaning of the Fourteenth Amendment is clear, its application is not. The Fourteenth Amendment’s rights provisions are notoriously “open textured;” that is, they are wholly unspecific as to what exactly those “privileges or immunities” and “equal protection” rights are. When the Fourteenth’s Amendment open-ended rights provisions are combined with its McCulloch-inspired Enforcement Clause, the results are explosive—provided, that is, that one takes the original meaning of the Constitution seriously. Whereas previously, the people retained their rights against the Federal government, under the Fourteenth Amendment they give Congress unlimited authority to protect those rights however Congress deems fit. The Fourteenth Amendment turned the constitutional design of the Founding generation upside down.
12. In expounding his views on the Constitution, Bramwell “joins a slew of Straussians, neocons, liberals and other devotees of unlimited government.” I have no idea what Gutzman means by “Straussians” and “neocons.” Evidently, I am supposed to be frightened of these bogeymen. I confess, however, that I am not deeply immersed enough in the literature unmasking the untrammeled malevolence of neocons and Straussians to tell whether I should be frightened or not. Tell me what a “Straussian” or “neocon” argument is, and I will say whether I agree with it. Until then, Gutzman’s name calling doesn’t affect the truth of my arguments.
In any case, I am not a devotee of unlimited government. Gutzman apparently missed the point of my article, which was to prove that the Constitution is not the friend of limited government that many libertarians suppose. As I concluded the article, “I wish Gutzman were right that the Constitution vindicated limited government.” But Gutzman is not right. Libertarian constitutional scholars succomb to selection bias: they remember only the battles they have unfairly lost (such as over the scope of the Commerce Clause) but not the battles they have unfairly won (such as over the scope of Congress’s Fourteenth Amendment enforcement powers). If libertarians ever want to come up with an ideologically congenial constitutional theory, they’ll need to stop thumping their originalist bibles.
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