These days the Fourth Amendment to the Constitution means next to nothing. Consider, for example, the choice offered a few years ago: surveillance under routine, easy “warrants” from the drive-through FISA Court or warrantless surveillance at the whim of George W. Bush and his allegedly boundless reserve of unitary-executive authority. A January 2006 Justice Department memo (“Legal Authorities Supporting the Activities of the National Security Agency . . .”) explained the executive’s claims in mind-numbing and unconvincing detail. But the memo at least suggested how far below any practical service to Americans’ liberty the Fourth Amendment has fallen, and did so by heaping up available (and rather bad) search-and-seizure precedents, many of which arose from the terminally futile war on drugs (pages 37–38). The result is something like “your Constitution on drugs”—with the searchers and seizers on steroids.

Turning to the Fourth Amendment itself, we read: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This sounds pretty good, doesn’t it? And solid, like it might actually mean something. Alas, no such utopian state of affairs actually obtains. It is possible of course that my elementary school teachers just plain lied to us when they spun golden tales about American freedoms.

Yet surely there is more to it. But if so, what doom befell the Fourth Amendment? We might try looking at various eventful periods when governments—state and federal—felt unusually strong needs to arrest, search, and seize, such as the Civil War, Reconstruction, World War I, Prohibition (see Lacey, in works consulted below), World War II, the Cold War, and (naturally) the war on drugs. It seems, however, that long-running negligence, evasion, and misinterpretation have done more harm to the Fourth Amendment than have various short-run authoritarian panics. Central to this slow but continuous process was the rise of modern policing in the nineteenth century, creating a new institution not foreseen in American constitutions (state or federal) and therefore largely incompatible with them and unaddressed by them (see Roots).

Gradualism and crisis, always headed the same way, have yielded a constitutional trail of tears catalogued in American state and federal case law. The U.S. Supreme Court hardly noticed the Fourth Amendment until the twentieth century. In the Prohibition-era case Carroll v. U.S. (1925), the Court sanctioned searches of private automobiles on the rather forced analogy of ships at sea. (The next time cops pull you over and search your car, you may blame Chief Justice William Howard Taft.) But the amendment’s core meaning survived awhile longer in areas where it was thought to have always applied.

Meanwhile, emboldened by the Fourteenth Amendment, the Supreme Court undertook to supervise state police practices from the late 1940s on; it would decide if the states were following the Fourth and other amendments. This new project annoyed the states but did little enough for the public. Examining federal search practices in U.S. v. Rabinowitz (1950), the Court declared the word “unreasonable” the key to the Fourth Amendment. Henceforth the Court would philosophize on the “reasonableness” of searches (“in the circumstances”) and periodically announce our ever-waxing-and-waning rights on the accordion model of civil liberties. Warrants pretty much disappeared.

We have been saddled with this unsatisfactory outcome ever since. The subjectivity of judicial balancing acts, along with fluctuating judicial moods, has made the Court’s understanding of “reasonable” rather less stable than that of the Oxford English Dictionary. The war on drugs has rendered the Court (particularly “conservative” justices) unsympathetic to complaints about searches. The upshot is that the Fourth Amendment is now mostly just another empty marker at which American politicians, bureaucrats, and ideologues can wave when praising the precious freedoms that supposedly cause Americans to be hated.

Legal History vs. Politicized Originalism

In constructing the above account, I have relied heavily on the work of Thomas Y. Davies, professor of law at the University of Tennessee. (The rhetoric is mine.) In essays running from 1999 to 2007 Davies painstakingly reconstructed the late eighteenth-century context of the Fourth Amendment, accounted for its later reinterpretation, and thus described its effective demise. At the same time, he assessed conservative constitutional “originalism,” which he finds harmful.

For Davies the key to Fourth Amendment mysteries is the displacement of eighteenth-century common-law rules by later legal tinkering. As “judge-discovered” law, common law constituted a whole system (albeit uncodified) able to address almost any issue that could get into court, naturally or under a legal fiction. It centered on private prosecutions between parties, who were often large landholders, and its rules aimed at protecting their rights and “quiet enjoyment” of their property. (The radical historian Barrington Moore, Jr., has noted the aristocratic origins of our civil liberties.)

Of course common law adopted, or was forced to adopt, a number of royalist and Parliamentary premises perhaps not essential to its workings, in such matters of State concern as sovereignty, treason, customs, and revenue. Given its environment, common law also incorporated social prejudices regarding women, employees (“servants”), and other disfavored classes, and remained mired in semi-feudal verbiage. Common lawyers worked new content into their “feudal” categories in a way that eased the transition from “feudalism” (for lack of a better term) to English agrarian capitalism and from one form of State to another. In the hands of Whig justices like Sir Edward Coke (1552–1634), locked in battle against Stuart royal prerogative, the common law became a potential weapon for individual and popular rights against State abuses. Coke’s views were very influential in revolutionary America.

In the nineteenth century, though, the common law came to be seen as a barrier both to industrial capitalism and to further expansion of the modern state; for these and other reasons it was interpreted into nothingness or quietly abandoned.

Common-Law Arrest, Search, and Seizure

With common-law rules in view, Davies sees the whole point of the Fourth Amendment as control of warrants to be achieved by defining them strictly. In the common-law environment of the late eighteenth century, warrantless searches—or arrests—were rare and subject to strict conditions. Thus confined, these few warrantless actions hardly threatened public liberty. Let us see why.

First of all, no one—constable or freeman—could arrest or search someone merely for looking “suspicious.” Accusers (public or private) had to have a case before applying for any kind of warrant. To have a case, an actual crime had to have been committed already. An accusation also had to include sworn testimony of one or more witnesses asserting direct, personal knowledge supporting the belief that a named defendant had done the deed. Strung-out informants selling hearsay “evidence” about crimes that might occur in the future were not consulted, although hearsay could be admitted to establish background facts. Judicial action—indictment, issue of warrants—rested on the kinds of evidence described above. Arrest warrants did not normally issue for misdemeanors. The defendant remained at large but would be wise to attend his trial. A search warrant gave permission to look only for the specific things named.

Further, a defendant never appeared as a witness, but could, with or without counsel, impeach the evidence against him and cross-examine witnesses. Accordingly, the rule against self-accusation (self-incrimination) did not protect a defendant’s trial rights, but meant instead that his diary, calendar, papers, and effects—as extensions of himself—were not subject to general ransacking and fishing expeditions. The other side had to make its case without such modern conveniences. Only Parliament claimed to be able to license fishing expeditions (such as the “general warrants” that so nettled colonial Americans) and mainly in the narrow areas of “treason,” customs, and revenue. (The last two items came under admiralty law with its civil [Roman] law rules.) The Fourth Amendment sought to limit the ability of Congress to play such games.

There was a short list of warrantless arrests and searches allowed under common law. An officer or freeman who saw a misdemeanor underway in his presence (affray or breach of the peace) could make an arrest. Someone traveling at night could be detained overnight to account for himself. In “hot pursuit” of a fleeing felon who had committed an actual crime, an officer or freeman could “break” (into) a house. Here again is the combination of actual crime and personal knowledge. There were a few other complications, but they and the above-mentioned practices were rooted in common sense and had definite boundaries.

Under common-law rules arrests were few and far between. In a system based on enforcement by private parties (freemen), or by constables with few additional powers, defendants could sue for “personal trespass” anyone who brought a bad prosecution. Logically enough, a right to resist false arrest also existed. (Nowadays the concept of false arrest is nearly dead and resistance is not generally recommended.) Damages for bad prosecutions were a useful incentive for keeping peace officers and private prosecutors reasonably careful. Tightly drawn warrants, where required, actually protected officers from resistance or suit.

Since arrests were few and generally followed indictment—and that on real evidence—defendants not formally accused were seldom detained. Hence modern dilemmas involving interrogation seldom arose. Asking questions was a judicial function carried out at trial. Constables, who were considered judicial (not executive) officers, had little discretionary authority and few occasions for third-degree Q&A sessions in the back room. And of course common law had no plea bargaining, that ubiquitous, contemporary solution of “overworked” courts that Paul Craig Roberts and Lawrence M. Stratton refer to as a form of torture.

In the United States, federalism set further limits. Only a few matters fell under federal jurisdiction, fewer still under exclusive federal jurisdiction. At the state level special language in revolutionary-era state constitutions about the “law of the land” or “due process of law”—“terms of art”—protected and perhaps “constitutionalized” common-law rules of arrest, search, and seizure. (“Due course of law” referred to trial procedures.) At the federal level specific constitutional language in the Fourth and Fifth Amendments and elsewhere served a similar purpose. And in practice America avoided what Jeffersonians most feared: a federal claim to enforce the whole common law, which potentially reached everything under the sun. The objects of federal action were limited in number, and the claim of extreme federalists to general common-law jurisdiction failed. But the common-law rules (“due process,” “law of the land”) seemed well entrenched at both levels of government. Could courts and legislatures legally (“constitutionally”) throw away these protections? It is hard to say what informed legal opinion would have said on this point in 1790. Later, of course, courts and legislatures contrived to do exactly that.

Rise and Fall of the Fourth Amendment

The framers’ quest to establish certain common-law rights largely failed. The disjunction between the clauses of the Fourth Amendment encouraged the leap to a “reasonableness” standard. In fact, as Davies shows, the words “unreasonable searches and seizures” were Revolutionary-era rhetoric condemning British general warrants of the 1760s and 1770s as without reason (outside of reason) and therefore illegal and unconstitutional; they were not meant to license future judicial speculation. The core ideas of the Fourth Amendment were better expressed in the Massachusetts Constitution of 1780 and the Ohio Constitution of 1802. Davies speculates that James Madison’s innovative phrase, “probable cause,” was meant to allow a little leeway for customs and revenue enforcement, which already enjoyed partial exemption from common-law rules. (A warehouse, for example, did not enjoy the same immunities from search and seizure as a private dwelling.) Still, even Madison’s slightly weakened version meant something, although “probable cause” (taken by itself) had a big future as a means of reducing restrictions on power to a nullity.

In Davies’s view the Fourth Amendment unraveled for several reasons. Judicial and legislative amnesia undercut the common-law rules. With growing industrialization, capitalists feared workers, Protestants feared Irish immigrants, and most people feared property crime more than they feared the State. To allay these fears and address some genuine problems caused by overcrowding, urban elites created police forces in major American cities by the 1830s. In eighteenth-century terms these new bodies were “standing armies.” Their practices brought about pressure for revised rules of arrest, search, and seizure, and new rules encouraged the new police practices. Davies speculates that the rise of “relativistic and probabilistic notions of truth and proof,” diminished reliance on oaths, and fear of too few convictions also eroded the old common-law regime.

Finally, state and federal courts rather forcibly dragged “due process” into property law—rather notoriously in Dred Scott (1857), with its substantive due process for slaveholders—with a little left over for trial procedures. “Due process” of arrest, search, and seizure receded into the shadows. In search of improved ideas, American state courts looked to Britain, where since 1780 judges had been adjusting the rules in favor of industrialism and modern State practices. (Right-wing commentators who gripe about “foreign law” influences ought to investigate this connection.) For once the federal government was fairly innocent. Precedents that undermined the old common-law regime largely trickled up from the states, especially in the second half of the nineteenth century. The upward trickle was slow at first: Down to 1935 federal marshals still had to have proper warrants to make an arrest.

Here then is today’s Fourth Amendment as seen by a life-form afflicted with supreme-judicial eye syndrome:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(As this ocular condition worsens, all but a few objects dwindle into dim grayness.)

On Davies’s argument the view that the Fourth Amendment came into its own from the mid-twentieth century forward, when reasonableness took center stage, puts the cart well before the horse. And yet the Fourth Amendment cannot really be recovered. This is where good legal history—concrete originalism—leaves us. Potentially beneficial constitutional provisions are of little use today, even when their meanings can be reconstructed in legal-historical context. We can’t go back, since “activist” judges and legislators have worked for almost 200 years to institutionalize a legal regime with only slight resemblance to any original plan.

Can Anything Be Done?

Oddly enough, nineteenth-century Anglo-American legal bragging about freedom crested at roughly the time when many common-law rules worth saving were on the way out. Common law had reactionary social biases, to be sure, but an accelerated “trickle-down”—to everyone—of important rights that common law protected might have been preferable to their elimination. Purging common law of its English royalist and absolutist accretions was precisely the goal of St. George Tucker’s annotated edition of Blackstone (1803). And there was no reason to stop with Tucker’s “republicanized” Blackstone. More right than wrong on this, Murray Rothbard wrote that the common law minus some “statist accretions” fairly approximated a libertarian law code. Thinkers outside the mainstream periodically rediscover the radical potential of English law: people like Gerrard Winstanley, John Lilburne, John Adams, Thomas Jefferson, Lysander Spooner, and others closer to our own time. They may not agree with one another, but their example is interesting.

This is the path not taken. Most arrests and searches today are without warrant, and getting a formal warrant is fairly easy. Concrete, sworn personal knowledge has yielded to vague (“reasonable”) suspicion or whimsy as a “standard.” Once we enjoyed rules that provided for concrete privacy. By the 1960s privacy seemed so imperiled that the Supreme Court with its usual jobbery was driven to invent an artificial “right of privacy” just to restore some balance. Later, “originalist” conservative justices wrathfully informed us that passage of a law by Congress is nine-tenths of “due process” (you voted, didn’t you?) and the rest is enforcement—stern law-and-order formalism indeed. Translated, conservative “due process” seems to leave us subject to arrest, search, or seizure at the whim of any functionary capable of forming a whim.

Americans have let themselves be systematically excluded from land, from effective political participation, and from effective legal participation. When collapse of the new-model system comes, as one day it must, we may perhaps give ourselves a new constitution. Where might we begin? Chapter XXIX of Magna Carta looks rather promising.

Works Consulted

Thomas Y. Davies, “Recovering the Original Fourth Amendment,” Michigan Law Journal (1999), and “Correcting Search-and-Seizure History: Now-Forgotten Common-Law Arrest Standards” [&c], Mississippi Law Journal (2007). (These two are essential. See also Davies in Wake Forest Law Review (2002), 239ff, Tennessee Law Review (2003), 987ff, Brooklyn Law Review (2005), 105ff, and Brooklyn Law Review (2007), 557ff.)
Morton Horwitz, The Transformation of American Law (1992).
Theodore B. Lacey, “The Supreme Court’s Fluctuating Reaction to National Prohibition in Fourth Amendment Decisions from 1920–1933” (Senior Thesis, Princeton University, 2005).
Roger Roots, “Are Cops Constitutional?” Seton Hall Constitutional Law Journal (2001).
St. George Tucker, “Of the Unwritten, or Common Law of England,” in View of the Constitution of the United States (1999 [1803]), 313–369.
(All the above except Horwitz may be found online.)

If recent items in The Freeman are any indication, its writers take a rather dim view of the Constitution and the Framers thereof. While I couldn’t agree more regarding the people who wrote our federal compact (with a few exceptions), I must take issue with how the magazine treats the Constitution itself.

Sheldon Richman started what seems to have become a trend in Constitution-bashing with his article regarding the Tenth Amendment and its non-similarity to Article II of the Articles of Confederation, which withheld powers not “expressly delegated” from the Confederation Congress (“The Constitution or Liberty,” January–February). A couple of months later, Joseph Stromberg noted the not-so-honest nature of the delegates to the 1787 Convention that produced the Constitution (“Slick Construction Under the Articles of Confederation,” April). And now, most recently, a book review of Kevin Gutzman’s Politically Incorrect Guide to the Constitution by J. H. Huebert once again raises the argument that the Constitution written in 1787 was at worst a hoax, and at best useless (May).

The key problem with all the above authors, in my mind, is not their evaluation of the intentions of nationalists like Madison and Hamilton. These men were indeed snakes of the worst sort, with Hamilton being the least dangerous precisely because he never pretended to favor republican government. Rather, the authors misunderstand the notion of originalist jurisprudence. A true originalist jurisprudence looks not to what individual delegates to the Convention wanted, but to what they said when they were asked to explain the fruit of their labor, especially to the state conventions that ratified the Constitution. Only when such explanations fail us should we turn to what was said in Philadelphia, and even that is better than what a single delegate such as Hamilton would have desired.

Why must originalism be understood in this way? In short, because any compact (which is what the Constitution was claimed to be) is only valid insofar as it is not fraudulent. Hence, if Hamilton admitted in the Federalist that the federal government could not do such-and-such, and the New York ratification convention ratified it under that understanding, then that is the meaning, regardless of the language of the Constitution or Hamilton’s particular desires.

It is true, as Huebert says, that ambiguity inheres in any constitution, especially short ones. However, relying on only the “people’s eternal vigilance” obviously works no better, since even with both a written constitution and a population bred to liberty, we have reached a deplorably unfree state. The key is to have both, because a vigilant people can be vigilant of nothing without a universal reference, unless the writers of The Freeman suggest a pure democracy. That universal reference is a written constitution. Likewise, a written constitution is also, by itself, worthless. It is mere paper, after all. However, we can control, to some degree, whether there is a constitution and what it says. We cannot, on the other hand, control whether the population under that constitution is “vigilant.” So let’s not leave out the one element we have control over, lest we abandon all hope to limit government.

—JOSHUA SCOTT
SCOTTJ82@lsus.edu

Sheldon Richman replies:

Mr. Scott raises several provocative issues in his thoughtful letter—alas, too many to respond to here. So I will address them and related matters in a future article. For now, let two quotations suffice:

“[A]ny interpretation still hangs in the air along with what it interprets, and cannot give it any support. Interpretations by themselves do not determine meaning.” —Ludwig Wittgenstein, Philosophical Investigations (198)

“[I]f the Constitution demands just compensation for victims of eminent domain, then such victims must receive whatever is actually just, not what the framers thought was just, since the Constitution says to give ‘just compensation’ rather than saying to give ‘whatever we consider just compensation.’ ”—Roderick T. Long, “The Nature of Law,” Part III.

Voting Locally

Donald Boudreaux’s article “I Won’t Vote” (April). . . illustrates one of my main concerns with libertarian thought, e.g. the complete failure to recognize the difference between what local, state, and federal levels of government can and should do. While Mr. Boudreaux’s ideas make some sense for the election of a president or a senator, they make no sense whatsoever for the election of a city councilman or a school board member. In my community, at least, these are frequently decided by a mere handful of votes. In a city-council election, a tally of 100 to 105 votes is not at all uncommon. In such an election, if I were to switch my vote and I could convince two others—say, my wife and an older child—to do likewise, I could completely change the outcome of the election. Mr. Boudreaux pats himself on the back for his attitude toward voting. In local elections, 90 percent, and frequently more, of the voters share his attitude exactly.

One reason, of course, is that for both liberals and libertarians, these elections mean, or should mean in their view, next to nothing. That this should be the case for so-called liberals, who feel that every responsibility should rest ultimately with the federal government, is not surprising. What I find annoying is that although libertarians, in theory, at least, are opposed to that sort of thing, on a practical level they lend it de facto support. Local leaders, elected for the most part by a handful of friends and neighbors, struggle to do what they can to make life as pleasant as possible for those same people, find themselves characterized by libertarians, when they don’t agree with absolutely everything the local leaders do, as “lifestyle Nazis” or something similar. I am perfectly aware that there is a great deal of corruption and downright stupidity in local politics, but I can’t help but feel that such problems would be greatly reduced if fewer people adopted Mr. Boudreaux’s attitude.

. . . Indeed, if we would take a greater interest in our local government, it would be greatly strengthened and there would be a greater demand for the state and federal governments to “play by the rules.” One quote that Mr. Boudreaux chose to highlight, “I implicitly agree—by voting—that the process of selecting people to exercise power over me is legitimate,” indicates that he does not feel he should be subjected to government rules at any level. This indicates a belief that his behavior and thought is, or should be, the standard of right. As I understand his position, Leonard Read felt that this very attitude was the greatest enemy of the free market. . . .

—MERRILL GEE
Salt Lake City, Utah

Donald Boudreaux replies:

I appreciate Mr. Gee’s response to my article. I concede that voting in local elections presents less of a moral problem than does voting in national elections. Local governments aren’t as able to be as oppressive as national governments, if for no reason other than that each of us can more easily move out of any particular local jurisdiction than out of any country.

But I disagree that any practical reasons counsel an individual to vote in a local election. Even in local elections an individual’s vote is extremely unlikely ever to decide an outcome. The analytics of determining the probability of decisiveness of a single vote are quite complex—see chapter four of Geoffrey Brennan and Loren Lomasky’s Democracy and Decision for a comprehensive treatment of this issue—but, practically speaking, the probability of one vote deciding the outcome of an election in a small town with, say, 1,000 voters is not meaningfully much higher than is the probability of one vote determining the outcome of a national election with millions of voters.

If originalism entails the problem Davies raises, it also has at least one more. Original intent, meaning, or understanding is inevitably multiple. John L. O’Sullivan, former editor of the Democratic Review, noticed this in 1862. The Constitution, he wrote, was America’s “ark of the covenant,” but “no man could ever exactly say what the Constitution was.” Its “elastic generalities of phrase” hid the deep divide “between the ‘Consolidation’ and the ‘State Rights’ parties in the Convention.. . .” Constitutional interpretation had been “twofold from the outset . . . Hamiltonian and Jeffersonian, or indeed Northern and Southern.” There was “not one . . . universally recognised Constitution, but two, widely different, and indeed conflicting” (my italics).

But what of our first constitution, the Articles of Confederation? For a time, they suited most of the people and the states. On the other hand, a vocal group in Congress was violently unhappy over the Articles’ failure to establish effective federal (national) power. Joseph Jones of Virginia, newly arrived in mid-1780, complained, “This Body never had or at least in few instances have exercised powers adequate to the purposes of war. . . .” Charles Thomson lamented in 1784, “A government without a visible head must appear a strange phenomenon to European politicians. . . .”

With new members, a dangerous optical malady often set in—“Continental Vision.” Writing to James Madison on February 20, 1784, Thomas Jefferson described the process: “[Young statesmen learn to] see the affairs of the Confederacy from a high ground; they learn the importance of the Union & befriend federal measures when they return.” Continental vision and “insufficient” power: Here was a dilemma, one that American nationalists—James Wilson, Madison, Alexander Hamilton, Robert Morris, and many others—determined to resolve. In their view, the country needed a mercantilist political economy, a standing army, public debt, and effective central taxation—things structurally and systematically interrelated. Nationalists wanted central power, as much of it as possible. Under the Confederation they made some interesting attempts to get it. We may begin with war powers.

Invoking vague war powers, early American nationalists urged that Congress ought to have certain powers and, therefore, did or “must” have them, neatly getting an “is” from an “ought.” Big on assertion, Congress spent the war complaining of its lack of real power, including power to tax. Yet mysteriously, Americans defeated Britain without anyone’s giving Congress many powers it craved or claimed. What actually happened?

Acting Without Authority

In practice, Congress coordinated revolutionary activity in the 13 incipient states and conducted diplomatic activity in their (plural) name. In so doing, Congress constantly recommended specific actions to the states, relying on them to carry the measures out. Before ratification of the Articles (1781), Congress often undertook measures for which it could show no obvious authority whatsoever, including the debt it created, its adoption of a European-style code of military “justice” for the Continental Army, and its creation of that army itself. Congress could only appeal to the wartime emergency, iron necessity, “public safety,” and the like. Under the Articles, nationalists complained endlessly of the powers Congress had “lost” with ratification. They referred of course to earlier congressional claims of inherent power—those being “proven” by the fact that Americans in their states had been good enough to cooperate. The price of following Congress’s advice and recommendations was to be told later that one had followed orders and obeyed commands.

American historians largely agree with the original claimants. Legal historian Edward S. Corwin was a case in point. Congress had, he admits, “no real governing power.” The states, on Congress’s recommendations, seized property, repressed Tories, suspended habeas corpus, and undertook “measure after measure that entrenched upon the normal life of the community drastically.” Regrouping, he concludes: “The fact, however, that this legislation came from the state legislatures whereas the war power was attributed to the United States in the Continental Congress served to obscure the fact that the former was really an outgrowth of the latter.”

This calls to mind the paradox, which I have noted previously (“On Misplaced Concreteness in Social Theory,” The Freeman, May 2006), whereby actual successful social action tends to be denounced as a dreadful evil or social problem. In the case at hand, cooperation serves to allocate authority away from those who acted. Whether that authority really entailed a spectral “war power” need not detain us. Whatever that last abstraction did for Congress from 1776 to 1781, and even under the Articles, 1781–1783, it did very little for it after 1783 without the war. Nationalists saw this problem coming. Late in the war, Gouverneur Morris hoped for “a Continuance of the War, which will convince people of the necessity of Obedience to common Counsels. . . .”

In the hunt for added congressional powers, nationalists employed deductions from International Law and pleaded Machiavellian necessities and moments. According to Merrill Jensen, they sought “to establish precedents [from which] they could argue the sovereignty of Congress.” Jensen stresses the interest of certain land companies in having their titles confirmed by the higher “government,” as well as the public creditors’ desire to have depreciated paper claims redeemed at somewhere near face value.

Hamilton hoped Congress would simply assert “undefined Powers” and see what they got away with. They should “assume Congress had once had such powers.” Boldness was needed to build a governing coalition of army, public creditors, and other nationalists. Madison was more indirect. In a Report to Congress in March 1781, he, James Duane, and James Varnum asserted a “general and implied power. . . to carry into effect all the Articles of the said Confederation against any of the States” but could find “no determinate and particular provision.” They therefore urged amendment of the Articles so that Congress could “employ the force of the United States” against states failing to meet funding requisitions.

After Rhode Island rejected an amendment to create a federal impost, Hamilton, Madison, and Thomas FitzSimons drew up a lengthy Congressional Reply in December 1782, calling the impost “a measure of necessity.” Congress, they urged, had “an indefinite power of prescribing the quantity of money to be raised.” This brought the impost “within the spirit of the Confederation.” Further, Congress, “empowered to borrow money,” had power “by implication, to concert the means necessary to accomplish that end.” Arguing against Rhode Island’s position, Robert Morris—federal financial czar—wrote on October 24, 1782, “[I]f a thing be neither wrong nor forbidden it must be admissible [and] if complied with, will by that very compliance become constitutional.” Now, mere acquiescence was “consent,” and consent bred legality. Meanwhile, having thought the thing over, other states had “rescinded” their earlier approval of the impost amendment.

Nationalist aspirations for revenue did not lessen with time. In a speech on January 28, 1783, Madison found “general revenue” to be “within the spirit of the Confederation.” Hamilton agreed, but un-bagged the cat by saying, “[I]t was expedient to introduce the influence of officers deriving their emolument from . . . Congress.” Madison often suggested naval blockades of offending states. He seems also to have spotted an implied power to coerce the states, even without an amendment. (Thirty years later, as president, Madison tried to coerce Britain and France with an embargo, but got the War of 1812 instead.) Even Governor George Clinton of New York spied an implied “Power of compelling the several States to their Duty and thereby enabling the Confederacy to expel the common Enemy.”

But Congress could not make the states ratify an amendment for a modest impost, much less one for their own coercion or blockade. For now, big notions drawn from Machiavelli, Vattel, and Pufendorf were of no avail. They did serve, however, in building both nationalist ideology and a theory of the union, and they yet serve historians who want philosophical foundations for the practical—even cynical—system the nationalists put over a few years later.

Another possible way out was the treaty power duly inscribed in the ninth Article of Confederation. In a centralizing mood, Jefferson himself, writing to James Monroe from Paris on June 17, 1785, advocated using the treaty power “to take the commerce of the states out of the hands of the states” and give it to Congress, which under the Articles had “no original and inherent power” over the subject. But Jefferson did not try to find implied powers in the Articles, nor did he deduce powers from some congressional sovereignty that “necessarily” arose under international law.

The treaty-power dodge reappeared much later, fueling the Old Right’s Bricker Amendment movement of the early 1950s. Senator John Bricker (R-Ohio) and his supporters wanted to keep Congress and the president from aggrandizing themselves under the vaguely worded treaty clause of the present constitution. They meant for their amendment, which failed in the Senate by one vote in February 1954, to meet the problem.

Utilizing Public Debt

Nationalists focused more and more on the public debt. Congress quit issuing credit money in late 1779. Thereafter, as Madison wrote to Jefferson on May 6, 1780, Congress became “as dependent on the States as the King of England is on the Parliament.” Nationalists saw this situation as completely improper. And so, Lance Banning observes, they “proposed to use the national debt to create a single nation—or at least an integrated national elite—where none existed in 1783.”

E. James Ferguson writes, “The Union was a league of states rather than a national system because Congress lacked the power of taxation. This was not an oversight.” Further, the federal debt itself was “inconsistent” with such a union. Jack N. Rakove adds, “Congress lacked the effective power or, once the Articles were ratified, the constitutional right either to levy taxes on its own authority, or to compel the states to obey its recommendations. It is certainly true that the states would never have ratified the Articles had they contained such provisions. . . .”

Nationalists feared the states would pay off the debt. Like the English Whigs in 1649, they needed the debt as the “cement” of union, as Hamilton called it. The debt was needed, in Rakove’s words, “to justify endowing Congress with independent revenues.” If revenue were found, public creditors and the underpaid officer class would rally to the cause of national power. All these advocates well understood the inflationary potential of consolidated public debt in the hands of fractional-reserve bankers. The economy would boom under their own profitable management.

Nationalists conducted an unrestrained campaign against the Confederation’s limits on power. “Water would not boil” due to the Articles. More important, nationalists discovered The People. Within doors, Federalists habitually denounced the people as a great rabble, the source of danger, wild enthusiasms, paper money, and attacks on property. Now they hastened to embrace John Locke’s empty marker of popular sovereignty to justify a takeover in the name of the people. Then they hustled the people off stage so the new machine “could go of itself.”

Social-Contract Theory

Anyone who reads Madison’s enormous journal of the Constitutional Convention will find the delegates arguing a mass of undigested social-contract theory big enough to sicken a hog. Here is an economical explanation: ambitious men with political, economic, and ideological motives wanted a central government with vague (therefore large) powers. They had, doubtlessly, a certain kind of public spirit. The system they created unfolded its inherent defects over time. To provide cover for their more specific goals—power, profit, prosperity, fisheries, security for slavery, land grabbing, glory, fame, good government—the framers issued great clouds of political “science” and theory that have confused Americans ever since. Madison was the outstanding mystifier, but there were others. Nationalists artfully decried the governments of the states while championing the Sovereign People, neatly dodging the question of who the people were and whether there were 13 peoples or one.

The constitutional deed and its defending rationales do not seem much grander than the origins of many other states. But as Jesse Lienesch has written, the founders succeeded in presenting themselves as demigods who saved the nation. It is a point of American orthodoxy to believe them. Charles Beard and J. Allen Smith, seconded by Albert Jay Nock, got much flak for recognizing that the Federalists had mixed motives and self-serving goals.

To win ratification, American nationalists, rechristened as “Federalists,” sold the new Constitution as a document involving “limited” and “enumerated” powers. On this reading, any power not obviously granted was not granted and the new outfit would not have it. Having cornered themselves verbally, Federalists showed their original understanding in the first Congress by enacting all manner of laws directly in conflict with their assurances to the ratifying conventions. Senator William Maclay of Pennsylvania especially noted the Judiciary Act, Hamilton’s funding system, economic coercion to force Rhode Island to ratify the Constitution, the War Department, a standing army—and federal consolidation generally. (See Maclay’s Journal at http://tinyurl.com/3ch2nm.) Seeing this, the Federalists’ opponents, with a different original understanding, argued for theirs as “Republicans” led by Jefferson, John Taylor, and others. They meant to hold the former promising parties to their pledges. Historian Garry Wills affirms that the ratifiers were somewhat swindled, but holds this to be a universal blessing that makes modern American governance possible.

And for all their high-minded talk about The People, popular consent, and so on, nationalists did not rule out violence. Benjamin Rush wrote Richard Price on June 2, 1787, that, if needed, “force will not be wanting,” since the wealthy and military classes wanted a new government. As Jensen writes, “It was power, not powers, that they wanted.”

Could the nationalizers have gotten their way by ingeniously stretching the Articles? One possible way would have been to filch the states’ powers and reassemble them into a collective power. Nationalists might have contended that a majority of congressional delegations—each delegation embodying, fully and immediately, its state’s separate sovereign powers—could, in concert, do any old thing, outside the Articles, that came to mind. Similar ideas had yielded results before the Articles came into force in 1781.

The nationalists were not the sort to be denied power. They might have made interesting inroads by discovering “indefinite” or “implied” powers, or by invoking the Articles’ “spirit.” Patiently accumulating “precedents,” they could cash them in, down the road, as grounded on powers that had always “been there.” But nationalists were not as patient as, say, the Supreme Court.

And certain structural advantages still remained to the states and the people(s). Their key advantage involved taxation. Congress had to ask the states for its money. It still seems a good arrangement.

Here our sub-theme—originalism—returns. It appears that original contestants contested many constitutional “meanings” at the very beginning. On this view, any simple originalism means clinging to original mistakes. The framers’ opinions were certainly original; how or whether they dictate to us today through the ether is another matter.

Works Used

1. Lance Banning, “James Madison and the Nationalists, 1780–1783,” William & Mary Quarterly, April 1983.
2. Edward S. Corwin, The President: Office and Powers, New York, 1957.
3. Thomas Y. Davies, “Correcting Search and Seizure History,” Mississippi Law Journal, vol. 77, 2007.
4. Jonathan Elliot, Debates in the State Conventions on the Adoption of the Federal Constitution, I, 1973 [1830]).
5. E. James Ferguson, “The Nationalists of 1781–1783 and the Economic Interpretation of the Constitution,” Journal of American History, September 1969.
6. E. James Ferguson, The Power of the Purse, Chapel Hill, N.C., 1961.
7. Paul Leicester Ford, ed., The Works of Thomas Jefferson, IV, New York, 1904.
8. Merrill Jensen, “The Idea of a National Government during the American Revolution,” Political Science Quarterly, September 1943.
9. Jesse Lienesch, “The Constitutional Tradition: History, Political Action, and Progress in American Political Thought, 1787–1793,” Journal of Politics, February 1980.
10. William Maclay, The Journal of William Maclay, United States Senator from Pennsylvania, 1789–1791, New York, 1965.
11. Roger McBride, Treaties versus the Constitution, New York, 1955.
12. John L. O’Sullivan, Union, Disunion, and Reunion: A Letter to General Franklin Pierce, London, 1862.
13. Jack N. Rakove, The Beginnings of National Politics, New York, 1979.
14. Murray Rothbard, Conceived in Liberty, IV, New Rochelle, N.Y., 1979.

Even so, the Constitution—read anywhere near its apparent intent—might be worth hanging onto; but how can we get such a reading? Enter a new crop of “conservative” legalists to offer us one under the rubric of “originalism.” 

For this crop of presidentialists, which includes John C. Yoo, Roger J. Delahunty, David Addington, Jay S. Bybee, and Attorney General Alberto Gonzales, originalism centers on the Unitary Executive Theory (UET)—a bizarre doctrine of presidential infallibility allegedly prefigured by Alexander Hamilton. Under the UET, America ‘s president is utterly sovereign in his sphere and sole judge of his own powers. 

The merest glance at America ‘s founding suggests that no one really wanted full-bore elective despotism. Nonetheless, American presidentialists apparently find just that in the terms “war powers” and “commander-in-chief,” and in presidential dominance of foreign affairs. Yet their forebear Hamilton conceded that in war the president has “nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy” (Federalist 69). 

Presidentialists take John Marshall’s comment, in Congress, that the president is our “sole organ of communication” with other nations as entailing lots of power. And always, presidents assert powers and store up precedents. Presidentialists turn presidential duties, chores, and everyday practices into powers, and strong figures have built the office. In the Mexican War (1846–48), President James Polk established the practical precedent of maneuvering Congress into war. But it was Abraham Lincoln, above all, who asserted immeasurable war powers belonging (mostly) to the president, by combining the commander-in-chief clause with the president’s job of enforcing the laws. Of this, legal historian Raoul Berger writes in Executive Privilege: “[W]hen nothing is added to nothing the sum remains nothing.” But success succeeds, and later presidents— Richard Nixon and George W. Bush among them—have eagerly wrapped themselves in Lincoln ‘s mantle of effectively suspending the Constitution to save the country. 

After Lincoln, presidential war powers rested up until 1898, when President William McKinley wielded them overseas. (McKinley issued a virtual ultimatum to Spain over Cuba a month before Congress declared war.) Theodore Roosevelt thought he could do anything not prohibited, at home and abroad, thereby neatly reversing the premise on which the Constitution was sold. Woodrow Wilson, too, had large views, but in 1917–1918 amiably shared with Congress the power of treading liberty under foot (conscription, for example), albeit with no new doctrines, merely existing bad ones. 

Worse luck, in United States v. Curtiss-Wright Export Co. (1936), conservative Supreme Court Justice George Sutherland fancied that during our revolution, George III’s prerogative powers somehow lighted on the union, hovering, extra-constitutionally, above successive Congresses, descending finally on the presidency. Berger deconstructed Curtiss-Wright, underscoring the break with England and the resulting institutional discontinuity. Sutherland’s opinion stands, approvingly cited by UE theorists. 

As Berger notes, Sutherland championed “a theory of inherent presidential power over foreign relations.” Berger quotes Louis Henkin, who adds that Sutherland’s assertion “carves a broad exception in the historic conception . . . never questioned and explicitly reaffirmed in the Tenth Amendment, that the federal government is one of enumerated powers only.”

Presidential power made great strides under Franklin Roosevelt, before and during World War II. FDR’s domestic emergencies and his wartime operations added much to the office. The Cold War extended these power-accumulations into an indefinite and interesting future. 

The Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), during the Korean War, reflected existing realities. Briefly, President Harry Truman, citing war powers, seized the steel industry to end a strike. People across the political spectrum, from organized labor to Republican Senator Robert Taft, denounced the action. The Supreme Court dodged the issue, holding that presidential powers did not go quite as far as Truman thought. 

Bottomless Well of Power 

Presidentialists take “The executive power shall be vested” (Article II) for a bottomless well. They see the specific duties mentioned as additional grants of power open to further (perhaps tortured) interpretation. They find further “inherent powers” arising from international law and Marshall’s sole organhood, and read the oath—“faithfully execute the office” and “preserve, protect, and defend the Constitution”—as allowing the president to violate laws in defense of the Constitution. Yet the charge that the president “take care that the laws be faithfully executed”(Article II, Section 3) seems to prohibit such maneuvers, although presidents have bent the words to their purposes, as when Lincoln “combined” them with the commander-in-chief provision. 

Presidential lawyers aggregate or separate clauses to widen power. Political scientist Richard M. Pious writes in American Presidency that presidential lawyers, construing congressional powers strictly, view “all remaining functions, powers, and duties [as] exercised by the president under doctrines of inherent powers, resulting powers, sovereign powers, and inclusions”—along with emergency and national-security powers. Finally, presidents—as a branch of government—assert a right to interpret the Constitution. Pious shows minimal respect for these notions, commenting that recent, barely elected presidents have felt a need to exploit their “legal” opportunities.

From 1947 on, anticommunist crusading fostered right-wing presidentialism. Meanwhile, on other issues the Supreme Court provoked a reaction toward strict construction. Since that was quite incompatible with Cold War policies, something had to give; when it did, right-wing presidentialists hijacked strict construction, reinventing it as absolutist originalism. Midway through this journey, Richard Nixon’s cries of “national security”—to becloud the Watergate affair—rang like a fire bell in the day. 

In his online paper “Rethinking Presidential Power—The Unitary Executive and the George W. Bush Presidency,” political scientist Christopher S. Kelley writes that, frustrated by ongoing congressional “aggression” against executive power—the War Powers Act of 1973 and congressional “interference” with federal bureaucracies—lawyers in the Justice Department’s Office of Legal Counsel cobbled UE theory together in the 1980s. During war—as everyone “knows”—the feds may freeze the Bill of Rights, provided they thaw it out later. What seems new in UE theory is the assertion that the president is sole judge of his powers, with Congress and courts excluded from inquiring into executive undertakings. (Nixon claimed to be sole judge of executive privilege.) This would seem a recipe for tyranny. 

UE theorists speak of constitutional text, structure, and history; but their postmodern textual maneuvers, their homemade structures, and their lawyer’s history live on the edge of sudden implosion. In a 2003 paper, “Judicial Review and the War on Terrorism,” John Yoo, who had worked in the Bush 43 Office of Legal Counsel, asserted that while the judicial process exists for issues involving federalism, none exists for issues arising from war. He thereby nodded toward UE theorists’ oft-professed belief in states’ rights while separating all such “domestic” matters from important presidential activities. Yoo praised “the war powers system we have today in which the President initiates war, Congress funds it, and the courts remain aloof.” Further, the president may designate citizens as enemies, with no further proof or process needed.

Elsewhere, in “The President’s Constitutional Authority to Conduct Military Operations against Terrorist Organizations and the Nations that Harbor or Support Them,” Yoo and Roger Delahunty examine Article II of the Constitution where they see the mere words “the executive power shall be vested in a President”—the high-toned “Vesting Clause”—as unveiling a mighty fortress: “The executive power” (my emphasis). The authors assign the president “all of the executive power” and “full control“ of the military, adducing his power to “repel sudden attacks,” commending his “speed and energy.” Predictably, they hold that Congress has only powers “herein granted” and “enumerated,” while the president has “all other unenumerated powers.” Backed by “historical practice” and “precedent,” “the President alone” decides war and peace. This is textualism? 

The shades of Wilson, FDR, and Truman must be smiling. Few non-White House supremacists would read texts so liberally. A whole generation of conservative constitutionalists now surpasses Earl Warren in creative writing. Some conservatives foment empire, militarism, surveillance, and presidential hubris through their own juridical and judicial activism. 

Such are the raw materials of UET, but there are a few more points of interest. 

Unenumerated Powers Don’t Exist 

1. Presidents reach for “all other unenumerated powers”; but by a well-known canon of construction, powers not enumerated are not “granted” and do not exist. The claim assumes the very thing to be proven. In Executive Privilege, Berger writes that, “lacking an ‘enumerated’ power, action is illegal” and observes that “faithfully executed” implies presidential accountability to Congress. Further, “executive privilege” (withholding information) asserts a power the King had already lost. He adds that “the Framers vested many prerogatives of the Crown in Congress and denied them to the President.”Berger remarks on the “meager scope” of the presidency’s projected powers: “The words ‘executive power’ were thus no more than a label designed to differentiate presidential from legislative functions, and to describe the powers thereafter conferred and enumerated. To derive additional authority from this descriptive label is to pervert the design of the Framers. . . .” Further: “Madison and [James] Wilson stated that the rights of ‘war and peace,’ enjoyed by the King, were not included in the ‘executive powers.’ Patently, the Framers were determined to cut all roots of the executive power in the royal prerogative.” Absent royal prerogative, the U.S. president would seem to be constitutionally impotent as far as finding and beginning his own wars goes. Practical politics made the office what it is today. In An Inquiry into the Principles and Policy of the Government of the United States (1814), John Taylor of Caroline, a serious strict constructionist, characterized the presidency as driving us toward “force and fraud” and “monarchy, revolution, and an iron government.” Election was an insufficient guard; for this reason the states put their executives under severe restrictions.
2. Presidential lawyers dig out generalities about emergencies from Hamilton ‘s Federalist essays but little on who holds the emergency powers. Is it Congress? As an executive officer under George Washington, Hamilton “discovered” what prerogative powers he could, and presidentialists get more mileage from this Hamilton. Given two Hamiltons, his arguments are somewhat suspect. (On prerogative powers in the Constitution, present or absent, see Forrest McDonald’s Novus Ordo Seclorum: The Intellectual Origins of the Constitution.) 
   

   Precedent Yields No Right  

3. UE theorists dwell on text, practice, and precedent. But whether successful usurpations—some large, some microscopic—amend the Constitution is not proven. Presidents have gotten away with things. As Berger points out, presidential stonewalling, which Congress has resisted for two centuries, yields no “right” of executive privilege. Yet much rests on the larger implications of executive privilege where successfully asserted. In Construction Construed and Constitutions Vindicated (1820), Taylor noted that the Stuarts collected precedents “because, successive encroachments terminate in conquest.” Moreover: “precedents, both good and bad, ought to have weight. . . . But discrimination is as applicable to precedents, as to any other species of evidence . . . [and] no improvement in civil government has ever been made, or can be preserved, but by a subversion of precedents, until a form is discovered incapable of corruption.”
4. UE theorists make much of the president’s job of repelling invasions of American soil. That this seldom happens is, for them, beside the point. Two much-mooted cases—Pearl Harbor and 9/11—drew forth no repelling. In 1846 President Polk was not repelling but was instead provoking. Nor was the Confederate attack on Fort Sumter, after months of talk, sudden, unexpected, or repelled. Given time, advocates might find some repelling, and so what? If the president failed to repel, defenders would still defend. Where is the mighty grant of “executive power”? Presidentialists hope to convince us that should a president ever defend American soil, he would be “making war,” thereby proving—apparently—that he may make war anywhere, anytime, at will. In “Emergency Powers and the Militia Acts,” legal scholar Stephen I. Vladeck does not concede a presidential power of repelling. Instead, such actions have rested on the Militia Acts of 1792, 1795, and 1807, and their successors, that is, on delegation by Congress. This greatly reduces what presidents can reasonably obtain from repelling. Indeed, they just break even with the states, which may “engage in war” when actually invaded. 
5. For UE theory, “separation of powers” works overtime, albeit rather cynically. Berger writes: “the separation of powers does not create or grant power; it only protects powers conferred by the Constitution. . . . [T]o argue from the bare fact of a tripartite system of government, without preliminary inquiry into the scope of each of the three powers, is like invoking the magic of numerology.”In any case, classic separation took “checks and balances” rather seriously. But if the president has his own sovereign sphere, how is he checked—or balanced.This brings us to John Taylor’s attack on “spherical sovereignty” in Construction Construed. (All emphasis has been added.) In McCulloch v. Maryland (1819), Chief Justice John Marshall sustained the supremacy of Congress in its sphere of action. Taylor agreed that “‘sphere’ conveys an idea of something limited,” but wondered “how this word . . . can be converted into a substantive uncircumscribed, by the help of the adjective ‘sovereign.’” He continues: “If the sovereignty of the spheres means any sovereignty at all, it supersedes the sovereignty of the people. . . .”Now Taylor is not objecting to spheres, but to sovereignty anywhere, since American principles demand actual delegation by real principals to real (and mere) agents. No one has “inherent” powers. 

   Taylor continues: “There is no phrase in the constitution which even insinuates, that the actual divisions of power should be altered or impaired by incidental or implied powers.” Further: “Individual spheres or departments are easily persuaded, like Kings, that a subordination to themselves would be better for a nation, than the occasional collisions produced by a division and limitation of power.” And here was the danger: “A jurisdiction, limited by its own will, is an unlimited jurisdiction.” 

   Taylor thought “occasional collisions” better than sovereign institutions. Rather than making Congress, executive, or court supreme in some realm, the Constitution created “co-ordinate political departments, intended as checks upon each other, only invested with defined and limited powers, and subjected to the sovereignty . . . of the people. . . . ”

   The Court’s new-fangled “spherical sovereignty” overthrew the division of powers: “A supreme power able to abolish collisions, is also able to abolish checks, and there can be no checks without collisions.” In America we “have preferred checks and collisions, to a dictatorship of one department. . . .” Under “the concurrent power of taxation,” Congress and the states “may each pass a law, both of which may be constitutional, and yet these laws may clash with, or impede each other. . . . For this clashing the constitution makes no provision.”

   According to Taylor , the Court was unearthing prerogative powers for Congress, including one to “remove all obstacles to its action.” Marshall sought “to unite an extension of power with an apparent adherence to the words of the constitution.” Under this dodge, “it was necessary to hook every implied, to some delegated power. . . .” This is still the practice of a continental state that micromanages the life-world under color of regulating commerce and passes worldwide military empire off as “defense.” 

   On Taylor ‘s reading, no branch derives sovereign powers from idealized separateness. Powers, where they exist, were delegated by living Americans, not by some cloud-borne eighteenth-century paragraphs “mediating” sovereignty to federal departments. 

6. UET’s “flexible system for going to war” (Yoo’s words) seems better fitted for finding and having wars than for actual defense of American soil. Here, where sovereignty and war powers conjure and conspire, UE theorists build on Marshall ‘s gutting of enumerated powers and Sutherland’s “inherent” prerogatives; but Taylor whipped them before they were born, even on war powers: 
   

   . . . [T]he case of war is specially provided for by the federal constitution, because the federal government, as having no sovereignty, could not other wise have declared it. . . . As the powers of making war and peace were necessary, it became necessary also to provide for them, not as emanations from the principle of a sovereignty in governments, but as delegated powers.. .. No powers in relation to war are derived from . . . sovereignty in governments under our system; and none can be justly inferred from the conclusions of the writers upon the laws of nations. . . .”[Emphasis supplied.]

   Presidential “signing statements,” grounded in UET, proclaim a departmental “reading” of what the president is signing into “law.” Unwilling to veto, President Bush says he will enforce the law (or not) as he sees fit. The attempt came before the name. In President: The Office and Powers, constitutional scholar Edward S. Corwin wrote of its having been undertaken in 1946–1947: “For a court to vary its interpretation of an act of Congress in deference to something said by the President at the time of signing would be . . . to endow him with a legislative power not shared by Congress.”

   Signing statements aim at influencing gullible jurists and, ultimately, at excluding the courts from even their normally feckless protection of liberty during alleged wars. (On this, see Richard E. Eliel’s “Freedom of Speech,” American Political Science Review, November 1924.)

Sovereignty, Unknown Powers, Strict Construction 

If we forsake “originalism,” as we probably should, we need not give up strict construction. Any serious perspective must begin with contemporary comparisons of the Constitution as advertised with the Constitution as put into practice. Taylor, Spencer Roane, and others heard certain promises in the ratifying conventions and saw them broken once the promising parties were in office. Their critique rose from an unavoidable contrast. (For how quickly the Federalists’ real program emerged, see The Journal of William Maclay, U.S. senator from Pennsylvania , 1789–91, available online and in book form.)

In Construction Construed, Taylor went to the fundamentals. He began with “powers of sovereignty and supremacy [that] may be relished, because they tickle the mind with hopes and fears. . . .” Yet “the term ‘sovereignty,’ was sacrilegiously stolen from the attributes of God, and impiously assumed by Kings . . . [and] aristocracies and republicks have claimed the spoil.” In any case, the “idea of investing servants with sovereignty, and that of investing ourselves with a sovereignty over other nations, were equally preposterous.” (Now, of course, we do both.)

“Sovereignty” was “neither fiduciary nor capable of limitation.” In America, we “eradicate[d] it by establishing governments invested with specified and limited powers,” under which “the people or the states retain all the powers they have not bestowed . . . [and] ungranted rights remain also with the grantors . . . the people.” This canon of constitutional interpretation, by which powers “not granted” are seen as not granted—hence nonexistent—failed to impress Marshall and others. With more experience of the Constitution, we might judge Marshall wrong.

Taylor declined to see the words “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”( Article I, Section 8, 18) as a charter of unknown powers; Marshall, however, saw “necessary and proper” as licensing numberless convenient and apposite means, and alongside spherical sovereignty, this was his key innovation.

Lacking certain desired powers, Congress could not simply grasp them by calling them means “necessary and proper” for fulfilling actually enumerated powers. Before the Revolution, Taylor noted in Construction Construed, Parliament contended for unlimited means of war: “The colonies replied, that it would be more absurd to limit powers, and yet concede unlimited means for their execution . . . .” Marshall ‘s repositioning of “means” undid the whole idea of enumeration. Taylor wrote: “As ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards.”

Later court decisions have awarded the president the same “necessary and proper” latitude that it earlier gave Congress. The process is cumulative, but if the doctrine was unsound when aiding Congress, it remains so when fattening the executive.

Marshall undermined American political reasoning, said Taylor , “by inferring the powers of sovereignty from a delegated power; as the power of establishing banks, from the power of taxation . . . .” But reasoning from international law to American government was a mistake. Where foreign threats existed, “the constitution . . . disregarding . . . the laws of nations, assigns the power . . . to a department [Congress], not as being sovereign, but as being a trustee . . . [which] alone possesses a right to involve the United States in war; and no other department, nor any individual, has a better right to do so, than a constable has to bring the same calamity upon England. As the laws of nations cannot deprive congress of any power . . . so they cannot invest congress or any other department, with any power not bestowed by the constitution. . . . [Those laws] contemplate the powers of declaring war and making peace, as residing in an executive department; but the constitution divides them, and does not intrust the president with either” (emphasis supplied).

Contesting institutional sovereignty derived from international law, Taylor aimed right at UET theorists’ favorite things: the war powers and their location in the system.

Can Amendment Rid Us of This Turbulent Office? 

Taylor ‘s point is, very simply, that if the government has some general “sovereignty,” then it, or some branch of it, is the final judge of its actions. If the government is not sovereign, then the unknowably vast powers for war, emergencies, and so on must remain with the people, as individuals, families, or communities—a disturbing thought, even for believers in such powers. Such a theoretical placement might lead to individual civil disobedience and nullification by communities. Short of such drastic experiments, are there any constitutional cures for unitary-executive disease? Perhaps so. This brings us to our only remaining article of faith, the amending power. 

Talk about unknown powers! We seem entirely free to abolish the executive in all its unitarity. Amendment, however, would require a train of disasters irrefutably stemming from that office. We have the disasters; the historical dice have been cast, but where will they land? 

Meanwhile, on June 29, 2006, the Supreme Court said a few words on our subject, putting a serious dent in UE theory (Hamdan v. Rumsfeld, Secretary of Defense, et al.). According to the majority, the president cannot just set up his own courts with their own procedures tailor-made for producing convictions, even against “unlawful combatants.” If, however, these so-called courts should conform to existing legislation (Uniform Code of Military Justice and such) becoming thereby more court-like, they might pass muster. 

On larger questions, the decision moves us back, at best, toward the inconclusive and subjective language of Youngstown Sheet & Tube Co., which, as noted, stated that presidents have large war powers but that Truman had overreached them. The courts, having long ago justified the deeds of Lincoln and others, can only go so far. But the decision is better than nothing, and has forced Congress, though the Military Commissions Act, to sustain the President by legislation. This has partially restored the logic of the system without, however, doing much for our liberties or for U.S. conformity with international law. 

And on August 17, Judge Anna Diggs Taylor of the federal district court in southern Michigan struck another blow against UET. In ACLU v. NSA, she found the Bush administration’s presidentially initiated NSA surveillance program illegal. The ruling denies that “inherent” presidential powers exist outside the constitution. 

This is good, but we shall be waiting to see how the administration gets around it.

Jürgen Skoppek is a magistrate on Michigan’s Workers’ Compensation Appellate Commission and holds a J.D. from Harvard Law School.

The fate of our liberties no longer rests in the hands of the voting public, elected legislators, or executive-branch officials. Whatever liberties we are permitted to have in the age of Big Government are determined mainly by a small cadre of often-unelected judges. This powerful elite decides what rights our national and state constitutions provide, which laws are enforceable, and the manner in which government authority can be exercised. How these judges go about their business of deciding what the law says is therefore of extraordinary interest, or at least it should be, to anyone interested in preserving individual liberty.

Hence, we should all be grateful for A Matter of Interpretation, the remarkably readable and fascinating new book by Supreme Court Justice Antonin Scalia. Based upon his recent Tanner Lectures at Princeton University, this book provides a lay-reader–friendly glimpse at the complex and arcane world of jurisprudence and the legal art of interpreting statutes and constitutional provisions. In the span of a mere 150 pages, even readers unfamiliar with the twists and turns of the law can gain a better understanding of what motivates the most influential legal scholars currently espousing their views in America.

What makes the book particularly interesting is that it is not a mere recitation of Justice Scalia’s legal philosophy, but also a dialogue with other academics who have insights into the question of legal interpretation, including commentary by Professors Mary Ann Glendon (a specialist in comparative law), Gordon S. Wood (a historian of the American eighteenth century), and Amy Gutmann (a professor of politics at Princeton who provides a stimulating introductory setting for the book). Most noteworthy are the contributions of two of the nation’s foremost adherents to what might be called the Feel-Good School of Jurisprudence (wherein every jurisprudential analysis is carefully designed to justify the particular result that makes the author feel good about his or her liberal preferences on a given legal issue), Professors Laurence Tribe and Ronald Dworkin.

Justice Scalia has become closely associated with, if not the embodiment of, the principles of “originalism” and “textualism,” two quite different methodologies for interpreting the law. What his chief article in the book, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Law,” makes clear is that these methodologies are not an end in themselves, but merely a means to an end. The motivating goal for employment of these methodologies is judicial restraint. In Justice Scalia’s legal universe, the great mortal sin is judicial activism and the aggrandizement of authoritarian power in the hands of a judicial elite. According to him, the problem is the shift from law based upon democratic will and a reliable and steady constitution to law created by all-powerful judges employing their own personal preferences. It is this usurpation of democracy that Justice Scalia wishes to limit by employing his interpretative techniques.

Scalia complains that “So utterly unformed is the American law of statutory interpretation that not only is its methodology unclear, but even its very objective is.” He argues that one of the key reasons for the penchant of judges to take on legislative powers in the act of legal interpretation is the grounding of American law in the common law tradition. The common law is judge-made law, and even as American law in practice began to be reflected primarily in statutes, judges still approached their practice from a common-law orientation. Justice Scalia points out how, to this day, legal education uses the common law as the foundation for turning students into lawyers. The result, he maintains, is that judges wield all too much influence, thereby doing great damage to the idea of democracy.

As a means to limit this activism by judges, Justice Scalia proposes judicial utilization of two principles, textualism and originalism. What are these approaches to legal interpretation? “Textualism” respects the primacy of the text, focusing squarely on the plain meaning of statutory law and constitutional provisions. It requires the use of basic rules of construction, such as “expression of one is exclusion of the other” (Scalia’s example, “If you see a sign that says children under twelve may enter free, you should have no need to ask whether your thirteen-year-old must pay”), or “a word is given meaning by those around it” (for example, “I took the boat out on the bay” gives “bay” a different meaning than “I put the saddle on the bay”). “Originalism,” on the other hand, requires an analysis of a legal text on the basis of its original meaning—how the text was understood at the time of its authorship.

In contrast to these methodologies, which the Justice suggests encourage limits on judicial authority, he presents dark images of the enemy. His bêtes noires include use of the supposed “intent of the Legislature” and apparent “legislative history” to interpret statutes, and the viewing of the U.S. Constitution as a flexible “Living Constitution” constantly changing with the needs and desires of society at any given moment. The danger in these approaches, he argues, is that democracy will be replaced with government by a judicial elite and that, once the public catches on, judges will be chosen purely on the basis of political preference, putting even our most cherished individual rights in danger.

Justice Scalia presents his views with charm and clarity. His adversaries, however, also make some strong points. For instance, Scalia’s approach can lead to contradiction. After all, textualism and originalism are often at odds. The former most often produces very tightly interpreted statutes, but permits constitutional phrases like “due process” and “equal protection” to be given extremely broad meaning. Originalism in many respects requires utilization of the very supposed evils (reference to legislative history and legislator understanding) that the former approach abhors. Justice Scalia’s article spends little time attempting to resolve this contradiction.

Nor is it always clear exactly what the author’s concern is. Is he opposed to an imperial judiciary because it subverts democracy and majority rule? Or is he worried that an imperial judiciary is too ready to succumb to the will of the majority, thereby imperiling basic minority rights? The Justice poses both dangers, at his convenience, even though the two problems are quite incompatible. Justice Scalia advocates judicial restraint, but also seems by implication to be arguing for judicial activism when necessary to strike down legislative efforts that contradict the original understanding of particular constitutional provisions.

Such contradictions have led many champions of individual rights to worry about the true goals of Justice Scalia’s jurisprudence. In deciding cases at the Supreme Court, he seems to use his legal principles fairly consistently to justify implementation of the will of legislative majorities or to preserve traditions against contemporary, often “political correctness”–motivated assault. Frequently, Justice Scalia’s arguments prefer the result that preserves the way things have been done in the past. Of course, preservation of “the way things used to be” may by definition constitute a certain kind of conservatism, but this gives little comfort to civil libertarians.

The failure of Justice Scalia and the commenting scholars to effectively reconcile these contradictions does not in any way diminish the value of the book. The very fact that these questions are raised in the mind of the reader is of great value. A Matter of Interpretation sets the mind aswirl with ideas. It stimulates internal legal and philosophical debate as the reader progresses through its pages. It excites an interest in the law and demonstrates the critical importance of thinking about the role of legal interpretation in the crafting of the way we govern ourselves. It is a book for anyone who cares about the law and its place in our society.