Lessig's Defensive Crouch Constitutionalism

For the symposium on Lawrence Lessig, Fidelity in addition to Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019).

Fidelity & Constraint is a deeply interesting in addition to insightful book.  I recommend it to anyone who is interested inward the theory in addition to history of American constitutional law.  In this post, I volition focus on i thread of Professor Lessig’s rich narrative—his line of piece of work concern human relationship of the New Deal revolution—and explicate why I observe it unconvincing.

Lessig identifies himself every bit “a nationalist, non a federalist,” on the enquiry of regime ability (432; run into also 440, 443-44).  Like Bruce Ackerman, he seeks to justify the New Deal era decisions that transformed American constitutional police push clit in addition to created a novel baseline that has been (mostly) stable e'er since.  Ackerman claims that this transformation involved unwritten amendments, but Lessig is non persuaded yesteryear Ackerman’s account, in addition to his ain two-part theory of fidelity—fidelity to pregnant in addition to fidelity to role—is meant to fill upward this gap.  Critically, however, Lessig appears to percentage Ackerman’s premise that the New Deal revolution cannot hold out justified amongst reference to the master copy pregnant of the Constitution.  Accordingly, piece Lessig insists that “the Constitution was non amended” during the New Deal, he also maintains that “fidelity to role forced the Court to suppress the Constitution’s actual or proper meaning.” (431)

From a nationalist perspective, Lessig’s line of piece of work concern human relationship of the New Deal revolution strikes me every bit besides defensive.  To borrow a phrase from Mark Tushnet, his theory tin give the sack hold out viewed every bit a type of defensive crouch constitutionalism. Particularly inward low-cal of novel constitutional storms on the horizon (see, e.g., here), it seems worthwhile to enquire whether this is the best a “nationalist egalitarian” (444) tin give the sack do. 

This is a large topic—too large to hash out adequately inward a weblog post—but allow me chip away at i slice of the building yesteryear commenting briefly on 2 cases, Hammer v. Dagenhart in addition to United States v. Darby, which are primal to both Lessig’s in addition to Ackerman’s accounts of what happened betwixt 1937 in addition to 1942, in addition to yesteryear using them to illustrate my larger dot most defensive crouch constitutionalism.

In Hammer, the Supreme Court struck downwardly federal shaver task legislation, thereby reserving the regulation of job in addition to production to the states. Although he does non quite enjoin so explicitly, Lessig appears to think that the Court was justified inward doing so inward originalist terms.  While describing Hammer every bit “extreme” in addition to “the most aggressive” illustration of “two-step originalism” inward the history of the Court’s commerce clause jurisprudence, Lessig nonetheless maintains that “the instance tin give the sack also hold out understood every bit an human activity of fidelity if nosotros watch it every bit an instance of translation.”  Elaborating on this theme, Lessig explains that John Marshall’s interpretation of the commerce clause inward Gibbons “had yielded a constitutional pregnant that conflicted amongst the pregnant intended yesteryear the Framers.  The Court couldn’t alter that constitutional text.  But it could adopt techniques for reading that text differently—translations.  Those translations are justified to the extent they restore an master copy meaning.  To the extent i believes the Framers intended the Constitution to protect extensive in addition to exclusive reason authority, Hammer is a translation.” (84-85)

If Hammer is faithful to master copy meaning, so what does that imply for Darby, which overruled Hammer inward upholding minimum wage in addition to maximum hours provisions of the 1938 Fair Labor Standards Act?  Lessig does non hash out Darby extensively, but he appears to think it cannot hold out squared amongst the master copy Constitution.   Thus, he writes that, inward the Jones & Laughlin Steel Co., Darby, in addition to Wickard trilogy, whatever plausible endeavour at translating the commerce clause “to save an alleged master copy meaning—by crafting limits on the otherwise expansive federal authority—had been forfeited.” Instead, the Court “gave to Congress a breadth of ability that would authorize it to regulate far beyond the limits that (at to the lowest degree the conservatives believed) the Framers had intended.  Fidelity to the pregnant of this master copy constitutional commitment had been surrendered.” (140)

Lessig’s hedge—“at to the lowest degree the conservatives believed”—creates roughly doubtfulness most what he ultimately thinks of Darby, every bit does his similar qualification (“To the extent i believes…”) when discussing Hammer.  The most natural reading of the passages I direct hold quoted, however, implies that Lessig thinks Hammer was a faithful translation of the master copy Constitution, whereas Darby was not.  

If this is correct, so I desire to propose that Lessig is selling the New Deal short.  Darby is to a greater extent than faithful to the master copy Constitution than Hammer.  To hold out sure, Hammer is to a greater extent than faithful to a persistent mythology most the Constitution, which Darby upended.  But fidelity to mythology in addition to fidelity to history are, of course, 2 dissimilar things.  The erstwhile should non larn into into the form of reflective equilibrium (or, inward Lessig’s preferred terms, the blend of check in addition to justification) nosotros should hold out seeking inward constitutional theory.  

Why is Darby to a greater extent than faithful to the master copy Constitution than Hammer?  There are many problems amongst Hammer, but mayhap the most important of them tin give the sack hold out boiled downwardly to a unmarried passage from Justice Day’s bulk opinion, which Justice Stone afterwards corrected inward Darby.  In smasher downwardly the shaver task prohibition, Justice Day wrote:

“In interpreting the Constitution it must never hold out forgotten that the Nation is made upward of States to which are entrusted the powers of local government.  And to them in addition to to the people powers non expressly delegated to the National Government are reserved.  The ability of the States to regulate their purely internal affairs yesteryear such laws every bit seem wise to the local authorisation is inherent in addition to has never been surrendered to the full general government.” (247 U.S. at 275, emphasis added)
 
Justice Day’s insertion of the tidings “expressly” inward his paraphrase of the Tenth Amendment was an egregious instance of constitutional infidelity.  On iii occasions inward 1789, Congress considered adding the tidings “expressly” to the time to come Tenth Amendment.  The clear motivation for this proposal was to cutting dorsum on the national government’s implied powers.  On each occasion, the displace to add together “expressly” failed.  The only recorded vote indicates that it was opposed inward the House yesteryear a nearly 2-1 margin (32-17).  Like the Framers themselves, then, the Federalists who were so inward accuse of the novel regime wanted implied national powers.  They were non most to allow this rearguard “states rights” activity succeed. 

Justice Day ignored this history inward Hammer.  He hardly could direct hold been unaware of it or the crucial divergence betwixt “delegated” in addition to “expressly delegated” powers, since Marshall had emphasized the omission of “expressly” inward the Tenth Amendment inward McCulloch —a instance Day quoted presently earlier adding “expressly” dorsum into his reading of that amendment.  What the Princeton scholar Alpheus Thomas Mason afterwards wrote most the Court’s dismal functioning inward Hammer, therefore, seems solely justified:  “The real tidings that the Congress had deliberately refused to insert, became, for all practical purposes, the police push clit of the land.  By judicial fiat, certainly bailiwick matters -- manufacturing, agriculture in addition to employer-employee relations -- were set beyond the attain of national authority.”  (Mason, The States Rights Debate, p. 193)

Consider straight off what happened inward Darby.  The most famous passage inward Justice Stone’s unanimous persuasion declares that the Tenth Amendment “states but a truism that all is retained which has non been surrendered.”  Stone’s adjacent judgement is less memorable, but critically of import inward the acquaint context:

“There is nil inward the history of its adoption to propose that [the Tenth Amendment] was to a greater extent than than declaratory of the human relationship betwixt the national in addition to reason governments every bit it had been established yesteryear the Constitution earlier the amendment or that its run was other than to allay fears that the novel national regime mightiness seek to practise powers non granted, in addition to that the states mightiness non hold out able to practise fully their reserved powers.  See, e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, §§ 1907-1908.”  312 U.S. at 124.

Few people bother to assay out Stone’s references, but they brand clear that Stone was non “amending” the Constitution (Ackerman) or “suppressing its master copy or proper meaning” (Lessig) inward Darby.  Instead, he was restoring the master copy pregnant of the Constitution yesteryear correcting the Court’s overreach inward Hammer.  Stone’s pivot cites to Elliot’s Debates recall discussions inward the Massachusetts, Virginia, in addition to North Carolina ratifying conventions on whether to amend the Constitution yesteryear reserving, to the states, all powers non “expressly delegated” to the United States.  His references to Annals of Congress dot to Madison’s June 8, 1789, vocalization communication inward the House of Representatives proposing constitutional amendments; successive motions yesteryear Thomas Tucker in addition to Elbridge Gerry to add together “expressly” to i of Madison’s proposals (so it would read: “the powers non expressly delegated yesteryear the Constitution, nor prohibited to the States, are reserved to the States respectively, or to the people”); and, most significantly, the recorded vote on August 21 to which I direct hold referred, inward which Gerry’s displace was soundly defeated.  (The Senate voted downwardly a tertiary endeavour to add together the tidings “expressly” to the time to come Tenth Amendment on September 7.)  Finally, Stone’s citations to Story’s Commentaries refer to Story’s ain line of piece of work concern human relationship of these events in addition to their import for interpreting the Constitution. 

In his give-and-take of the Tenth Amendment inward §§ 1907-1908, Story wrote:

“When this amendment was earlier congress, a proffer was moved, to insert the tidings ‘expressly’ earlier ‘delegated,’ so every bit to read ‘the powers non expressly delegated to the USA yesteryear the constitution,’ &c. On that occasion it was remarked, that it is impossible to confine a regime to the practise of limited powers.  There must necessarily hold out admitted powers yesteryear implication, unless the Constitution descended to the most infinitesimal details.  It is a full general regulation that all corporate bodies possess all powers incident to a corporate capacity, without beingness absolutely expressed. The displace was accordingly negatived.  Indeed, i of the swell defects of the confederation was, every bit nosotros direct hold seen, that it contained a clause, prohibiting the practise of whatever power, jurisdiction, or right, non expressly delegated. The upshot was, that congress were crippled at every measuring of their progress….” (§1907, emphasis original)

“It is plain, therefore, that it could non direct hold been the intention of the framers of this amendment to give it effect, every bit an abridgment of whatever of the powers granted nether the constitution, whether they are limited or implied, straight or incidental. Its sole blueprint is to exclude whatever interpretation, yesteryear which other powers should hold out assumed beyond those, which are granted. All that are granted inward the master copy instrument, whether limited or implied, whether straight or incidental, are left inward their master copy state. All powers non delegated, (not all powers non expressly delegated,) in addition to non prohibited, are reserved. The attempts, then, which direct hold been made from fourth dimension to time, to strength upon this linguistic communication an abridging, or restrictive influence, are utterly unfounded inward whatever only rules of interpreting the words, or the feel of the instrument. Stripped of the ingenious disguises, inward which they are clothed, they are neither to a greater extent than nor less, than attempts to foist into the text the tidings "expressly;" to qualify, what is general, in addition to obscure, what is clear, in addition to defined….” (§1908, emphasis original)

Story’s line of piece of work concern human relationship of these matters is lucid, accurate, and convincing.  Stone knew this, in addition to his confident appeal to these passages inward Darby calls into enquiry Lessig’s supposition that the post-1937 Court was less faithful to the master copy pregnant of the Constitution than the Old Court it replaced.  In this case, at least, fidelity to master copy pregnant runs the other way.

I am non persuaded, therefore, yesteryear Lessig’s thesis that the New Deal revolution “reflects a fidelity to something beyond meaning.” (431)  At times, Lessig seems drawn to treating the 1937-1942 developments every bit mere “error correction” (437-39).  Yet, if I sympathise him correctly, his two-part theory of fidelity is ultimately premised on rejecting that interpretation.  In a similar vein, Lessig writes: “As a nationalist, I am sad that nosotros don’t direct hold a clearer nationalist Constitution.” (440)  But his ain interpretations of Article I in addition to cases similar Gibbons in addition to McCulloch needlessly undercut a nationalist reading of the Constitution.  In his chapter on federalism, for example, Lessig makes the common mistake of assuming that Article I’s reference to all powers “herein granted” entails that Congress has “just those powers specified inward the Constitution.”  (75, emphasis added)  He also places undue weight on what Richard Primus calls “The Gibbons fallacy.” (75)  Finally, Lessig’s claim that Marshall was non faithful to the master copy pregnant of “necessary in addition to proper” inward McCulloch (36-43) is also untenable (see, e.g., here in addition to here) in addition to concedes far to a greater extent than to the opponents of a nationalist Constitution than is, well, necessary in addition to proper.

Despite my enthusiasm for Fidelity & Constraint, then, Lessig’s creative rethinking of the New Deal revolution seems unnecessarily weak in addition to defensive.  Particularly inward low-cal of the electrical flow Supreme Court, a meliorate approach mightiness hold out to abandon this form of defensive crouch inward favor of a renewed 24-hour interval of the month amongst the master copy Constitution, which is to a greater extent than nationalist than Lessig in addition to other commentators by in addition to large assume.  Doing so could eventually direct hold transformative effects of its ain in addition to highlight of import links that mightiness otherwise larn unnoticed. 

In Shelby County v. Holder, for example, the Court struck downwardly Section 4(b) of the Voting Rights Act on federalism grounds, asset that Congress lacked ability to reenact that provision inward 2006, when it extended its coverage formula for roughly other twenty-five years.  Writing for a narrow 5-4 majority, Chief Justice Roberts explained his theory of federalism inward a Hammer-like manner:

“Outside the strictures of the Supremacy Clause, States retain wide autonomy inward structuring their governments in addition to pursuing legislative objectives. Indeed, the Constitution provides that all powers non specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10.” 570 U.S. at __ (emphasis added). 

Justices Stone in addition to Story—and John Marshall, for that matter—would non direct hold allow this remarkable distortion of the master copy Constitution larn unchallenged.  Neither should we.  See, e.g., Darby, 312 U.S. at 124; McCulloch, 17 U.S. at 406-07.