Mid-Year Break in Course
My American Constitutional Law class extends for two semesters, with a final exam at the end. A paper of roughly 5 pages was due last week.
This coming Thursday is the last class of the semester. I've promised a summary of the first semester, some study questions for the exam, and a conclusion on this long chapter in Mason and Stephenson, "Property Rights and the Development of Due Process."
So I'll work on my class as I blog.
The Constitution was basically an attempt to replace an ineffective national government with an effective one. There were fears that an "effective" new government would threaten the existing rights and privileges of both individuals and states. Some people found it convenient to argue that state legislatures were better protectors of individual rights than the new Congress would be, even though there are good reasons--now buttressed by historical examples--to expect more successful demagoguery and mob rule at the state level.
John Marshall, not the first Chief Justice but an early one who left behind some lasting decisions, was mainly concerned to ensure that Congress could act effectively on a national scale, and the Supreme Court, presumably with some national government bias, would be the final arbiter as to what the Constitution actually meant. Marbury v. Madison: Court loses the battle over Marbury's job, but wins the war as to whether Congress can actually pass a certain piece of legislation or not. McCulloch v. Maryland: Congress wins, state loses. Gibbons v. Ogden: Commerce power of Congress construed very broadly (Marshall actually criticizes "strict construction").
On the latter case, M and S say: "Marshall could have resolved the case simply by finding that both state and nation hd acted within their powers, but because the state law conflicted with the federal licensing act, it must give way." He made it questionable (and a colleague went further) whether the states truly had any independent authority, that could be defended against Congress, when it came to commerce. "Though the states retained authority to enact inspection, pilotage, and health laws, even here Congress could enter the field if it chose." Marshall uses the word "enumeration"; does he agree witih defenders of the states that Congress and the national government have only "enumerated" powers, with the residuum always belonging to the States--arguably because it is what remains of the "sovereignty" they had before the Constitution?
Marshall delicately outlines an argument for the states: that they may exercise the commerce power within their own jurisdictions; that this was an inseparable attribute of their previous sovereignty; that they have only surrendered those parts or aspects of sovereignty that are specified in the Constitution; that all of this is "secured" by the 10th Amendment. Marshall indicates that for now defenders of Congress can concede all of this, but still argue that "full power to regulate a particular subject implies the whole power, and leaves no residuum...."
He discusses an analogy between regulation of commerce, and taxation (another big subject). He says the difference is that states could not exist at all without some independent taxing power. "Congress is not empowered to tax for those purposes which are within the exclusive province of the States." (He doesn't mention direct vs. indirect taxes, or whether there is more of a limit on the kinds of taxes available to Congress than are available to the states).
In this case one can see the argument coming that if almost everything that has any material value is part of the economy, Congress can regulate almost everything; Marshall does not admit that he is going that far. (I often repeat to my class Lincoln's line that no state was ever sovereign except Texas. He meant, I believe, that it was the people of the United States who rebelled against Britain, and tried various constitutional experiments. No individual state ever had the veto over any of this, and it is doubtful that individual states chose to join in or not.)
In Gibbons, New York state had tried to grant a somewhat corrupt monopoly over a vital kind of transport. When the Court struck down the monopoly, and opened up competitition (and brought down prices) all over the country, this was a popular move. M and S say: "With the exception of monopolists and southern slave owners who feared the consequence of a broad definition of national power over commerce, public opinion welcomed...."
In a way, the federalism cases were a bit academic until the development first of a modern industrial economy, then of the welfare state. The Court struck down an act of Congress in Marbury (1803), and didn't do so again until Dred Scott v. Sanford in 1857.
M and S say Gibbons (1824) was "the first important case in the Supreme Court concerning the meaning of the commerce clause." The Taney court, coming after Marshall, struggled to define what kinds of regulation states could and could not carry out, often using the commerce clause as a standard, but the reality was that if states did not regulate a certain area of life, it would probably not be done. "Dual federalism" was established, although it was not exactly clear where the lines were being drawn. Taney clarified the "police power" which was widely thought to belong to states as a carry-over from pre-Constitution days: "'police power' came to mean not only legislative authority to remove government-created privilege, but also sanction for state legislation having broad social purpose." At a minimum "police power" included measures to provide for the health and security of the public, including water and sewer, police, and public health (epidemics/quarantines). It might have seemed natural to build on these accepted legislative powers and use the states as the main vehicle for the welfare state in the 20th century. This is roughly what happened with Canadian provinces. Instead, using the commerce power, the power to collect income taxes established by constitutional amendment in 1913 (16th amendment), and political frustrations over the Great Depression, it was Congress that led the way. The Court behind the famous Lochner decision (1905) prepared for massive Congressional action by arguing that New York could not protect working conditions for workers--and again, that implied that Congress couldn't, either.
Of course the Civil War made a huge difference, and the post-Civil War amendments to the Constitution have had a huge effect. Something had to be done about individual rights, particularly for former slaves and their descendants, and it seemed that only Congress and the Supreme Cout could do it. Of course this conclusion was not accepted overnight.
An underlying issue all along--perhaps the issue that gave the federalism cases so much bite--was: are there fundamental individual rights that must be protected against any and all governments and legislatures? Didn't individuals choose to form a government (even, perhaps, leave a state of nature) in order to defend their "natural rights"? Isn't there a residuum or trace of these individual rights, much more than of the "sovereignty" of the states, under the Constitution? Shouldn't it be the courts that recognize them and limit government action accordingly?
In Fletcher v. Peck, Marshall launched one of his more daring decision in protecting the status of a contract--and therefore, the status of parties to a contract as free agents exercising their rights. As M and S say, Marshall's first argument was that the parties had vested rights, part of the underlying principles of society, and these cannot be violated by a state legislature voiding the contract. Then Marshall tried to move to the text of the Constitution. The biggest problem was that some government would normally be called on to enforce a contract; who is going to enforce a contract to which a state is a party? Marshall wasn't sure that he could rely either on "general principles" or the Constitution, so he kept referring to both. In Dartmouth College v. Woodward, he was clearer: "any ambiguity in a charter must be construed in favour of the adventurers and against the state." This gave "vested rights" clear protection from the Constitution.
What is so great about M and S chapter 8 is that they really try to cover this topic from beginning to end: beginning with property and contracts, then moving to the slow development of "substantive due process," which later became so important to the "incorporation" of the original Bill of Rights into the 14th Amendment. The original 7 amendments, in particular, generally say what Congress and the national government shall not do; the post-Civil War amendments, especially the 14th, limited the actions of the States.
In the Slaugherhouse cases (1873), the Court insisted that the "privileges and immunities" clause, which might seem to protect U.S. citizens against all excessive government action, had a very limited application. They were worried that if the monopoly established by Louisana was struck down, the court would become "a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of the amendment."
A nice, clear use of the phrase "civil rights," in an argument that the individual cannot appeal beyond the state for protection of individual rights. Remarkably, that is what the great O.W. Holmes (a hero to intellectuals for his language, derived from Mill, on free speech) says in his dissent in Lochner. He defends the New York legislation, which in this case protects workers, on the ground that virtually any legislation with democratic support must be upheld by the Court: "my agreement or disagreement [with economic theory] has nothing to do with the right of a majority to embody their opinions in law...[state laws and Constitutions may be "tyrannical" or], equally with this [law], interfere with the liberty to contract. Sunday laws and usury laws... the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others...is interfered with by school laws, by the post office, by every state or municipal institution which takes his money for purposes thought desirable."
Once the federalism questions (and questions about Congress, President, and the courts) are settled somehow, do individuals have any protection against tyranny of the majority? Are welfare state programs supported more by the mere desires of the majority than by the Constitution?
The power of that question, to which Holmes seems oblivious here, explains why a lot of old property and contract cases, including the much criticized Lochner, remain relevant. As M and S say: the right defended in Lochner--liberty of contract--is not mentioned in the 14th amendment, and was probably not intended by those who drafted the amendment. Yet the Court decided that application of the amendment required defence of this right. This anticipates the "right to privacy."
The Court in Lochner also "attributed substantive, not merely procedural, content to the concept of due process of law" and treated the right it was emphasizing as fundamental.
In some ways the best known story of the U.S. Constitution is of how progress was made in ensuring African-Americans enjoyed the same rights as others--no more, and no less. Some "novel" arguments, such as those for affirmative action, are still justified as a way to correct for the lingering results of past injustices. (For a while "school busing" cases and voting "apportionment and districting" cases were both seen as opportunities to help African-Americans, but those developments have died down).
The bigger story is how Americans in general see themselves, the institutions of government, and the Constitution. Do they think that in general they must submit to the majority, as the best way to protect the rights of most individuals, most of the time? Or do they think they as individuals have rights that must be protected, even at some cost to the majority? Obviously they think both, but it is helpful to try to clarify this further.
Ann Althouse has blogged on the "medical marijuana" case that is going to the Supreme Court soon. On drugs (as on gay marriage and other social issues), it seems there is now some room for states to take diverse approaches, and to emphasize individual freedom if they so choose. To the extent there is a national approach, it is likely to remain "Just Say No." Liberals are used to being suspicious of states' rights, and state legislatures, and more inclined to see national policies. What if the Republican majority in Congress becomes more puritanical or restrictive, on some issues? Won't federalism take on new life as a quest for more individualistic or libertarian policy approaches moves to the state level?
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