Originalism vs. Obamacare
The Supreme Court’s ruling that the medical-care law signed by President Obama is partly constitutional, partly not has spawned abundant commentary on the motives and role of Chief Justice John Roberts. I find this heartening: it shows that people know the emperor, or chief justice, has no clothes. One element of the buildup to the Court’s decision, however, merits special attention.
On the H-NET e-mail list for legal scholars, Richard Leffler posted a stunning May 25 e-mail. John Marshall’s Supreme Court opinions deserve great attention, Leffler held, and yet the attorneys for and against Obamacare had said virtually nothing about them in the NFIB v. Sebelius‘s oral arguments. Leffler said he had written a Huffington Post piece showing that Obamacare was constitutional, and yet no one had noticed. He hoped that other scholars would offer their opinions.
Leffler is editor emeritus of The Documentary History of the Ratification of the Constitution, one of the great historical series. He and his colleagues have nearly completed the project of producing twenty-odd volumes of correspondence, speeches, pamphlets, broadsides, newspaper essays, and other material from the ratification dispute—the three-year process from 1787-90 when Americans debated and decided whether to live under the proposed U.S. Constitution.
In the editorial of May 7, 2012, Leffler noted that Marshall stood with James Madison to explain the Constitution in Virginia. He then averred that “Someone today searching for the original understanding of the Constitution can hardly do better than to consult the opinions—usually unanimous opinions—written by Marshall.” He then drew readers’ attention to two of the most famous judicial opinions in American history: Marshall’s majority opinions in McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824).
An attentive reader will realize instantly that Leffler’s focus on these opinions, published 31 and 36 years after Marshall served as a second-line Federalist in the Virginia Ratification Convention, raises a question: is that all there is? After all, since Leffler edited the bulk of the primary materials of the ratification contest, and since Madison, Thomas Jefferson, and other originalists have held that the meaning of the Constitution was to be found in the ratification conventions, one would expect him to highlight arguments made in 1787-90 in support of his position—if he could.
Having devoted considerable attention—many months’ attention—to the Virginia volumes of Leffler’s series, I feel confident that he cannot. Those volumes show that Virginia Federalists explained the Constitution in their state’s ratification convention in such a way as to foreclose enactment of statutes such as the Obamacare law.
Leffler quotes from Marshall’s opinion in McCulloch a passage essentially cribbed from Alexander Hamilton’s memorandum to President George Washington in defense of the constitutionality of Hamilton’s 1791 Bank Bill:
We think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
Leffler surely knows that when ex-president James Madison read this passage in 1819, he deplored it. Madison even said that if the people had known the Constitution would be read this way, they would never have ratified it.
The chief contention of Madison, Marshall, and their fellow Virginia Federalists in 1787-88 was that Congress would have only the powers “expressly” granted (as Governor Edmund Randolph, a more prominent ratifier than Marshall, put it in Richmond). In fact, the only Virginians who said the Constitution would be read the way Chief Justice Marshall read it in 1819 were the Virginia Antifederalists. I would go so far as to say that the Federalists’ chief contention was that Patrick Henry, George Mason, and their colleagues were wrong in their oft-repeated claims that the Necessary and Proper Clause, the General Welfare Clause, or some other part of the Constitution would degenerate into a grant of unlimited power to Congress.
That is why Leffler points to Supreme Court decisions over three decades after the fact in purporting to find an originalist basis for upholding the Patient Protection and Affordable Care (“Obamacare”) Act.
Leffler rightly notes that under McCulloch, “Just as there does not have to be a specific provision in the Constitution authorizing the creation of the Bank to execute the tax power, and the Bank does not have to be a tax, so there does not have to be a provision in the Constitution to justify the mandate, nor does the mandate have to be a regulation of commerce.” But again, notice the sleight-of-hand: Governor Randolph, the chief Federalist spokesman in the Richmond Convention, said over and over that Congress would have only the powers “expressly” delegated; George Nicholas, another of the three most voluble Federalist delegates, said virtually at the conclusion of the Convention that Virginia was to be one of thirteen parties to a compact, and that its explanation of its understanding of the Constitution would be binding on the others—so that if the Federal Government abused the powers Virginians were granting, they could reclaim them; and Virginia’s instrument of ratification listed various things Virginia would not allow Congress to do.
In short, the Constitution’s enumeration of powers, chiefly in Article I, Section 8, was to be exhaustive. Did any of this mean that Congress could force people to purchase health insurance? No one in the room had health insurance—or had even thought of the idea. They certainly did not expressly delegate Congress this power.
Leffler also refers to “The original understanding of the Constitution, which many of us believe is often discernible and should be controlling.” In this sentiment I wholly concur. It is a bit of a puzzle, however, why one of the scholars most conversant in the evidence of the original understanding should have based his argument not on The Documentary History of the Ratification of the Constitution, but on judicial opinions written three decades later.
R. Kent Newmyer, the leading living Marshall scholar, tells me that John Marshall never cited a ratification convention in any of his judicial opinions. As in McCulloch, he tended to rely on the later musings of Alexander Hamilton, a minor figure in the framing of the Constitution who privately said that enumeration of powers could never work. In his Memorandum on the Bank Bill, Hamilton wrote as if the enumeration of powers in the Constitution had never taken place. In McCulloch, Marshall borrowed from him to that effect.
And James Madison was right: the people would not have ratified such a Constitution. They would have rejected a document that they thought would empower Congress to penalize people for not purchasing health insurance despite the absence of an express grant of that power.