Judicial Monarchs: Court Power and the Case for Restoring Popular Sovereignty in the United States might be placed alongside the recent tome by Justice Stephen Breyer, Making Our Democracy Work, each representing a strand of the two major ways of thinking abut the power of judicial review. Breyer represents what may be called the judicial supremacist view, the view that is most deeply entrenched among the judicial and legal elites. William Watkins represents what may be called the coordinated powers approach, an older but, since the early twentieth century, less influential approach. On the Breyer view, the courts, especially the Supreme Court,…
In my previous post, I noted that the distinction between a tax and a regulation was well understood by the American revolutionaries. The distinction had to do with the purpose of the law. A tax was a law that was designed to raise money to pay for government, and a regulation was designed to influence (or regulate) human actions. To be sure, taxes do influence behavior, and many regulations do raise revenue, but those features are incidental to their purpose. Hence the colonists thought it would be legal for Parliament to regulate trade by making foreign molasses more expensive in the colonies, but Parliament could not legally impose a duty on foreign molasses if the main purpose of that duty was to raise revenue.
Tories, according to the American definition of the term, claimed that this was a distinction without difference. From their perspective, all laws that raise revenue were equally legal, regardless of the purpose of the law. For their part, the American Whigs said that the difference between a tax to raise revenue and a duty to regulate trade was obvious and important. Their constitutionalism focused on ends as much as it focused on means. Because the government existed, in part, to secure property, it was unconstitutional for Parliament to tax the colonists without their consent.
At Econlog, David Henderson wonders where we are on the Laffer curve? Russ Roberts new EconTalk podcast is with Enrico Moretti on Jobs, Cities, and Innovation. Walter Olson wonders about Chief Justice John Roberts' secret strategy. This glosses over the point that the ground probably could have been held. Fed Soc Blog features a podcast with David Rivkin on yesterday's Supreme unpleasantness. Adam White connects Chief Justice Roberts to Marbury's John Marshall. Point of Law features a bevy of commentators on the Obamacare decision. Highlights include Richard Epstein, Michael Rosman, and Erwin Chemerinsky. The Economist as a Good-Citizen, Boudreaux's case. Detroit Rising? William Voegeli on the day after…
It was June 1793, a summer of discontent for the nascent opposition in Washington, and Thomas Jefferson had a problem: A political adversary in Virginia was rumored to be contemplating a run for the House of Representatives. Jefferson, concerned that the House provided a powerful perch, hit on the idea of banishing the adversary to a political backwater instead. “Hence,” he wrote at the time, “I think nothing better could be done than to make him a judge.”
It was many years later, but on the question of whether the bench supplied a platform for power, the target of Jefferson’s machinations—John Marshall—laughed last. Still, Jefferson’s assumption that the bench was a political wasteland from which no influence could be exerted illustrates a perspective missing in constitutional considerations over the Affordable Care Act. The question the Court must answer is not merely whether the law is constitutional—the topic of virtually all the questions the justices asked—but also whether that decision is one for the judiciary to make.
We live under a Constitution of Affluence. Obviously, I don’t mean a constitution that produces affluence. (Prosperity may be right around the corner, but it’s the corner behind us.) I mean a Constitution whose basic institutions presuppose and depend on high levels of affluence and, equally important, public expectations that life will get better and richer.
The United States Constitution—the formal Constitution and its nineteenth-century arrangements—is (or was) not a Constitution of Affluence in the sense just explained. It sought to create conditions that would be conducive to rising prosperity—principally, by way of ensuring political stability, meaning institutional arrangements that would let citizens go about their business without constant fear that somebody, someplace might confiscate the proceeds. But it was supposed to work, and it did work, even in times of prolonged economic stress—in one of those “varying crises of human affairs,” as John Marshall might have said and in fact did say.
The first big step toward a Constitution of Affluence was the New Deal. In ways and for reasons discussed below, the New Deal Constitution’s characteristic arrangements—administrative agencies, “cooperative” federalism, industry cartels, modest social programs, extreme judicial deference to “economic” legislation—all depend on an expectation of sustained economic growth. However, the New Deal Constitution still reflected a recognition that rising affluence required private production. Thus, the New Deal Constitution still embodied limits—not so much formal, judicially enforced limits, but institutionally enforced limits: not everything can be up for grabs.
Our Constitution of Affluence recognizes no such limits. Its central premise is that everything must be up for grabs, and it has built institutions to ensure unceasing progress to that end. Its tragedy is that it will eventually undermine the affluence on which it rests. Our affluence has ended, and so will our present constitutional arrangements. The only question is how.
John Marshall’s opinion in Gibbons v. Ogden, I argued in an earlier post, is manifestly inconsistent with Justice Thomas’s textualist-originalist concurrence in Wyeth v. Levine. Only one of the decisions and opinions can be right on the question of federal preemption; and the conflict arises not from some wrinkle in the statutory scheme but from differing jurisprudential commitments. Mike Ramsey’s eloquent Originalism Blog post notwithstanding, I still think that I’m right, that Marshall was right, and that Justice Thomas was wrong. I harp on the disagreement because I fear that textualist originalism won’t let the Constitution do what it is supposed to do.
I’m very grateful for Mike Ramsey’s forceful response at The Originalism Blog to my earlier post on the (alleged, by me) conflict between modern-day textualism-originalism and John Marshall’s jurisprudence, on the subject of preemption and beyond. I prolong this dispute among friends because I think it matters not only or even primarily for constitutional theorists but for urgent practical reasons. Like, the fate of our economy and the Supreme Court’s ability to get cases right on principle, rather than sheer fortuity. This post deals with general jurisprudence; the next, with preemption.
Ratifying the U.S. Constitution in Virginia
The Philadelphia Convention rent Virginia’s political elite as no event ever had. Not only had Patrick Henry refused his proffered seat (he said he “smelt a rat”), but two of the three delegates who stayed through the whole Convention before finally refusing to sign were Virginians.
And not just any Virginians. Non-signer Edmund Randolph, the Old Dominion’s governor at the time, had served virtually throughout the Convention as chief advocate of the Virginia Plan, which the delegates knew as “Randolph’s Resolutions.” Perhaps even more significantly, Virginian politicos generally recognized George Mason as their state’s leading constitutional authority. He had taken the lead in drafting both the Virginia Constitution of 1776—the first written constitution adopted by the people’s representatives in the history of the world—and the Virginia Declaration of Rights, the first American declaration of rights. Mason refused to sign too.
Randolph explained his recusant posture by pointing to the several objections he had developed in the course of deliberations, and then saying that he intended to leave the question open until the people of his home state had an opportunity to express their sentiments. Mason, characteristically more forthright and less concerned with popular opinion, made no secret of the fact that, as James Madison put it, he “left Philada. in an exceeding ill humor indeed.”
At the originalism blog, Mike Ramsey has a number of thoughtful posts on the Arizona immigration case and its central preemption question. His April 24 post rejects the contention that Arizona’s law is preempted because it “conflicts with the generalized purposes of federal law or with executive branch enforcement policies.” In support of that position, Mike cites and discusses Justice Thomas’s important concurring opinion in Wyeth v. Levine (2009).
I agree that “generalized (statutory) purposes” in and of themselves don’t preempt (although in the Arizona case, the feds have additional, more persuasive preemption claims). And I certainly agree that Justice Thomas’s Wyeth opinion is the most forceful and fully developed statement to date of the originalist-textualist position on federal preemption.
That opinion, however, goes well beyond the common-sense proposition that courts shouldn’t make up legislative purposes, preemptive or other. Unmistakably, the Wyeth opinion means (although it does not say) that Chief Justice Marshall’s celebrated decision in Gibbons v. Ogden was wrong—because it was anti-originalist and extra-textualist. For discussion see The Upside-Down Constitution, pp. 369-372 (excerpted below).
This conflict between Marshall’s jurisprudence and modern-day, clause-bound and textualist originalism isn’t a fluke; it’s part of a pattern. By strict originalist standards, the second holding of M’Culloch (states can’t tax the Bank of the United States) was surely wrong: if Congress wants to protect its instruments against state interference, it should and must say so. Brown v. Maryland, holding that a license tax on importers was the equivalent of a constitutionally prohibited tax on imports and therefore preempted, was wrong. So was Marshall’s expansive riff on the Contracts Clause, or on corporations and diversity jurisdiction. Truth be told, I can’t think of a single Marshall opinion (let alone a Story opinion—Martin v. Hunter’s Lessee or Swift v. Tyson, anyone?) that would pass muster on the originalism blog. The reason is no great mystery: every notable Marshall opinion either starts with or soon turns on the purpose of the statute or constitutional clause at issue. And by the lights of (positivist, clause-bound, textualist) originalism, that is verboten.
Forced to choose between clause-bound originalism and John Marshall’s jurisprudence, I’m inclined to hang with Marshall. Still, I remain open to the suggestion that the Chief was a rogue. What strikes me as overdue is a candid acknowledgment of the conflict.
Wyeth v. Gibbons
[Wyeth v. Levine arose over a tragic injury to a patient whose doctor and nurse, in an act of flagrant malpractice, had administered a drug in direct contravention of the federally approved warning label. The wording of that label conformed with — in fact, was practically dictated by — FDA requirements under the Food, Drug and Cosmetics Act (FDCA). The question in Wyeth was whether the patient could still sue the manufacturer under a “failure to warn” theory under state law or whether the federal act and the FDA-approved label preempted the imposition of state-law liability. But by a 6-3 majority, the court decided against preemption. (Justice Alito dissented, joined by Chief Justice Roberts and Justice Scalia.) Justice Thomas submitted an opinion concurring with the majority.]
In a famous passage in The Federalist, Alexander Hamilton wrote of the federal judiciary that it would have
no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
If someone wrote these words today, he would be dismissed out of hand as totally ignorant of the practice of modern judges. Federal courts issue complex decrees that sometimes involve them in continuous oversight of government institutions such as schools and prisons. In connection with this task, they have ordered governments to impose taxes. They routinely use injunctions to enforce constitutional rulings and invoke their power to punish contempt of court in levying fines against recalcitrant officials.