.gif)
893 A.D.--Simeon I is crowned the first emperor of Bulgaria.
927--The Battle of the Bosnian Highlands. The Croatian army, under King Tomislav, defeats the Bulgarian army.
1153--Malcom IV becomes King of Scotland.
1328--Philip VI becomes King of France.
1703--Czar Peter I the Great Romanov founds the city of St. Petersburg.
1813--In the war of 1812, American forces in Canada capture Fort George.
1860--Giuseppe Garibaldi attacks Palermo, Sicily in his effort to unify Italy.
1863--The War Between the States. The Siege of Port Hudson begins.
1883--Alexander III Romanov is crowned Tsar of All the Russias.
1905--Russo-Japanese War. The Russian Far East Fleet is defeated by the Japanese in The Battle of the Tsushima Straits.
1927--The Ford Motor Company ceases production of the Model T.
1930--The Chrysler Building (1,046 ft.) opens to the public in New York City.
1937--The Golden Gate Bridge in San Francisco opens to traffic.
1941--The German battleship, KMS Bismarck is sunk.
1958--The McDonnell F-4 Phantom II makes its first flight.
1967--The aircraft carrier USS John F. Kennedy is launched.
Saturday, May 29, 2010
26 May in History
451 A.D.--The Battle of Avraryr. The Armenians are defeated by the Sassanid (Persian) Empire, but are allowed to continue practicing Christianity openly. The Sassanids were Zoroastrian.
1135--Alfonso VII of Castile and Leon is crowned Imperator totius Hispaniae in the cathedral of Leon.
1538--Geneva expels John Calvin and his followers from the city. They remove to the city of Strasbourg for the next three years.
1637--The Pequot War. Massachusetts and the Mohegans under captain John Mason attack the Pequots in Connecticutt and kill about 500 of the Pequot.
1647--Alse Young is the first person convicted of withcraft in the North American colonies and is hanged in Hartford, Connecticutt.
1736--The Battle of Ackia. British soldiers and Chickaswa warriors repel a French and Choctaw attack on the village of Ackia, near present-day Tupelo, Mississippi. The French were attempting to link Acadia and Lousiana.
1770--The Orlov Revolt. An attempt by the Greeks to revolt against the Ottoman Turks ends in disaster.
1830--The Indian Removal Act is passed by Congress, and is signed by President Andrew Jackson two days later.
1864--Montana is organized as a territory.
1865--General Edmund Kirby Smith becomes the last Confederate general to surrender to Union forces at Galveston, Texas.
1868--President Andrew Johnson's Impeachment trial ends in a vote of not guilty (by one vote).
1896--Nicholas II Romanov is crowned Czar of All the Russias.
1918--Armenian forces defeat the Ottoman Turks in the Battle of Sardarapat.
1918--The Democratic Republic of Georgia is established.
1938--The House Un-American Activities Committee has its first session.
1940--The Battle of Dunkirk. The evacuation of the British Expeditionary Force and French forces begins.
1969--Apollo 10 returns to earth.
1972--The United States and the Soviet Union sign the ABM Treaty.
1986--The European Community adopts a flag.
1135--Alfonso VII of Castile and Leon is crowned Imperator totius Hispaniae in the cathedral of Leon.
1538--Geneva expels John Calvin and his followers from the city. They remove to the city of Strasbourg for the next three years.
1637--The Pequot War. Massachusetts and the Mohegans under captain John Mason attack the Pequots in Connecticutt and kill about 500 of the Pequot.
1647--Alse Young is the first person convicted of withcraft in the North American colonies and is hanged in Hartford, Connecticutt.
1736--The Battle of Ackia. British soldiers and Chickaswa warriors repel a French and Choctaw attack on the village of Ackia, near present-day Tupelo, Mississippi. The French were attempting to link Acadia and Lousiana.
1770--The Orlov Revolt. An attempt by the Greeks to revolt against the Ottoman Turks ends in disaster.
1830--The Indian Removal Act is passed by Congress, and is signed by President Andrew Jackson two days later.
1864--Montana is organized as a territory.
1865--General Edmund Kirby Smith becomes the last Confederate general to surrender to Union forces at Galveston, Texas.
1868--President Andrew Johnson's Impeachment trial ends in a vote of not guilty (by one vote).
1896--Nicholas II Romanov is crowned Czar of All the Russias.
1918--Armenian forces defeat the Ottoman Turks in the Battle of Sardarapat.
1918--The Democratic Republic of Georgia is established.
1938--The House Un-American Activities Committee has its first session.
1940--The Battle of Dunkirk. The evacuation of the British Expeditionary Force and French forces begins.
1969--Apollo 10 returns to earth.
1972--The United States and the Soviet Union sign the ABM Treaty.
1986--The European Community adopts a flag.
Wednesday, May 26, 2010
A Defunct Commercial Constitution
from The American Enterprise Institute:
ARTICLES & COMMENTARY Our Defunct Commercial Constitution By Michael S. Greve
National Review
Monday, May 17, 2010
There is, or there once was, such a thing as the "commercial Constitution." Most of the powers and prohibitions specified in the Constitution concern commercial matters: commerce itself, obviously, but also patents and copyrights, bankruptcy, taxation, tariffs and duties, the coinage of money, contracts, and property rights. Enough of those provisions have fallen into desuetude to suggest that we no longer have a commercial Constitution.
Conservative jurists should be favorably disposed to restoring it, not simply because doing so would help to protect commerce against a government that seems to know no restraint, but also for a deeper reason: "Structure is everything," Justice Scalia has insisted, and the basic stuff of the commercial Constitution is structure--the allocation of powers to and placing of limitations on particular branches and levels of government. The commercial Constitution thus offers an antidote and alternative to the airy abstractions and aspirational "rights" of contemporary constitutional law. Implementing a constitutional program along these lines, however, would require a serious rethinking of two central conservative legal tenets: originalism and federalism.
The Constitution's individual clauses presuppose some general comprehension of what the structure as a whole is supposed to do. Happily, the basic thrust of our constitutional commercial arrangement is perfectly clear: free trade and commerce across state borders. To that end, the Constitution prohibits state tariffs and "duties of tonnage," state discrimination against citizens of other states, state laws impairing the obligation of contracts, and states' exploiting the citizens of other states by means of taxation or regulation (an implied rule commonly known as the prohibition against "extraterritorial" state laws).
Congress can, in theory, block states' interfering in business under its power to regulate interstate commerce. However, legislative interventions can oppress as easily as liberate commerce. In fact, the odds of protecting commerce by means of federal legislation are much worse than 50/50. The Constitution's checks and balances are designed to make federal legislation deliberate and cumbersome, the better to prevent factional schemes and fevered responses to perceived crises. Those checks, though salutary in the ordinary course of business, prove debilitating when the task is to beat back state measures that hobble commerce. Ingeniously, therefore, the Constitution entrusts the protection of commerce in the first instance not to Congress but to the federal courts.
The viability of this arrangement depends on the federal courts' elaboration of the commercial Constitution by way of doctrine and constitutional common law. That is essential because states and legislators have every incentive to exploit the commerce of the United States and to evade the rules that protect it. The protection of the Constitution's guarantees against state commercial circumvention figured prominently in the Supreme Court's 19th-century book of business. Constitutionally barred from taxing imports, the states endeavored to tax importers instead; the Supreme Court enjoined them from doing so in 1827's Brown v. Maryland, lest the constitutional prohibition become an empty letter.
No specific constitutional clause barred states from taxing the instruments of the United States, including its central bank; but because "the power to tax involves the power to destroy," the Supreme Court supplied a constitutional common-law rule, inferred from the general structure of the Constitution, to block the tax in the 1819 decision M'Culloch v. Maryland. Likewise, no constitutional clause specifically prohibited New York from establishing a steamship monopoly to the exclusion of a rival steamship operating under a federal license; but in 1824's Gibbons v. Ogden, the Court read the license, which essentially served to free U.S. vessels from the obligations imposed on foreign ships, as also forbidding state monopoly and discrimination among domestic carriers. This position later developed into what is known as "implied federal preemption," a doctrine holding that, unless Congress declares otherwise, any federal law operates to the exclusion of any state law in the same field, regardless of whether the two conflict. Further, Chief Justice John Marshall's Gibbons opinion attributed "great force" to the notion that the Commerce Clause, even in the absence of congressional legislation, erects a judicially enforceable barrier against protectionist state legislation. This "dormant Commerce Clause" would in later decades play a central role in preventing states from doing indirectly what the Constitution bars them from doing directly.
The Supreme Court's principal means of making the rules of the commercial Constitution stick was its "diversity" jurisdiction--that is, jurisdiction over disputes between parties from different states. The exercise of this jurisdiction protects parties engaged in interstate commerce against judicial bias in a plaintiff's home-state courts. In commercial cases in which no state statute and no federal law or constitutional provision applied, the Court decided these "diversity" cases under a federal general common law--not under state law. The constitutional guarantee of an unbiased court, the theory went, implied a guarantee of access to an unbiased body of law.
If this constitutional universe is unfamiliar, that is because it was wiped out by the New Deal's very different Constitution. Contrary to the misunderstanding that is especially widespread among conservatives, the New Deal did not simply unleash the federal government's power on the states and the private economy. Rather, it expanded government power at all levels, state as well as federal. And to that end, it effectively repealed the commercial Constitution that had governed the United States for roughly 150 years.
Supreme Court diversity jurisdiction became optional in 1928, and, over the ensuing decades, the federal courts created a slew of "abstention" doctrines that oblige federal courts to defer to state law, and to state courts--even when federal jurisdiction plainly exists. The federal general common law was summarily abolished--as unconstitutional, no less--in Erie Railroad v. Tompkins, the 1938 decision that effectively commands federal courts hearing diversity cases to follow the state law chosen by the plaintiff. Of the entire constitutional edifice, only the dormant Commerce Clause and federal preemption law survive, and those only in a greatly weakened form. The dormant Commerce Clause was stripped of its "extraterritoriality" prohibition: While outright protectionism is still prohibited, states may tax, regulate, and exploit other states' citizens and businesses virtually without hindrance. (Kansas may regulate the Internet so long as it does not overtly favor its own citizens.) Federal preemption lost its presumption of exclusivity: Its post-New Deal touchstone is the "intent" of Congress, and, unless Congress has made its preemptive intent unmistakably clear, the Court will construe federal statutes against preemption and in favor of the states' "traditional" police powers.
It is to this jurisprudence, driven by the New Deal's eagerness to unleash interest-group politics and to enhance the redistributive power of government at all levels, that we owe our current chaotic commercial order. Economic actors must now deal with a cascade of conflicting and compounding demands and regulations, inflicted by a multitude of semi-autonomous institutional actors and a wholly autonomous litigation industry. First prize often goes to the most exploitative regulator. The Erie Railroad regime, for example, pulls lawsuits into the most pro-plaintiff jurisdiction available: hence the litigation explosion. At the same time, current practices regarding preemption law and the dormant Commerce Clause reward the state that proves most creative in taxing and regulating outsiders.
What is the correct conservative response to this transformation? By some conservatives' lights, the New Deal metamorphosis hasn't gone far enough. Justices Scalia and Thomas have denounced the dormant Commerce Clause as a pure judicial invention. Justice Scalia would still enforce the doctrine, on stare decisis grounds, against overtly discriminatory state laws and against laws identical to those invalidated in the past. That is not much of a restraint: Even the stupidest state legislator can write a discriminatory statute in neutral language. Justice Thomas would abolish the dormant Commerce Clause altogether and instead protect interstate commerce under the explicit provisions of the Import-Export Clause, and perhaps under the Privileges and Immunities Clause. Good luck with that: The Import-Export Clause provides protection against some, but not all, protectionist taxes, while it offers no protection from equivalent regulations; the P&I Clause, for its part, protects individuals but not corporations. The entire point of the dormant Commerce Clause is to block obvious state maneuvers to circumvent the constitutional protections enjoyed by businesses. To eviscerate the doctrine is to expose all interstate commerce to unchecked state exploitation.
The Court's avowed originalists have taken an equally radical view of federal preemption. Last year's decision in Wyeth v. Levine was occasioned by a tragic injury to a patient whose doctor and nurse, in an act of flagrant malpractice, had administered a drug in direct contravention of a warning label that conformed with--and was practically dictated by--Food and Drug Administration (FDA) requirements. Even so, the Court decided that federal law does not preempt tort lawsuits under state law. FDA-approved warnings, the 6-3 majority said, are a mere federal minimum; state courts and lay juries can do better in determining the adequacy of drug labels. In a breathtakingly expansive concurring opinion, Justice Thomas inveighed against any implied preemption and insisted that federally regulated drug manufacturers have no "unfettered right, for all time, to market [a] drug with the specific label that was federally approved." That form of originalism recasts preemption law as something it has never been. Gibbons v. Ogden directly confronted the argument that a federal coastal trading license--a routine license of far less obvious preemptive force than a painstakingly considered and negotiated drug label--"gives no right to trade." Marshall rejected that argument. By the lights of Justice Thomas's Wyeth opinion, Gibbons was either decided wrongly or should have been decided under the dormant Commerce Clause--if, pace Justice Thomas, such a thing exists.
Also last year, the Court held that the lending practices of federally chartered financial institutions are subject to open-ended fraud investigations and lawsuits by state attorneys general. Ever since 1864, the National Bank Act has shielded the banking operations of federally chartered institutions against state investigation and prosecution, leaving state banks subject almost exclusively to state supervision. This dual banking system reflects the 19th-century constitutional understanding, exemplified by M'Culloch v. Maryland, that any given set of private transactions should be regulated by the federal government or by states--but not by both. Justice Scalia's 5-4 majority opinion in Cuomo v. Clearing House Association, joined by the Court's liberal bloc, effectively ends that sensible system. M'Culloch hovers over Justice Scalia's opinion, but is not cited therein. By the lights of Cuomo, it may no longer be good law.
A jurisprudence that renders John Marshall's commercial Constitution obsolete is probably mistaken. And when that same jurisprudence turns the Constitution and its federalism into a trial lawyers' Bill of Rights, suspicion hardens into certainty. The question is, What went wrong?
One obvious source of error is an excessively clause-bound, literalist originalism. On this view, the specific clauses of the Constitution and their historically settled meaning are the Constitution, and the will of the Congress must be the declared will of the Congress. This is what drives originalists' hostility to the dormant Commerce Clause and to federal preemption. It also drives their enthusiasm for Erie Railroad, which originalist justices and scholars have sought to establish as a bulwark against judicial overreach even when the decision manifestly does not apply. Structure may be "everything," but hidebound originalism holds that judges may do nothing to make structure work: This would smack of raw politics and judicial imperialism. So long as this Manichean view prevails, the commercial Constitution will remain a dead letter.
A second error, pervasive not only among jurists but among conservatives more broadly, is the misguided expectation that federalism will automatically translate into smaller, more responsible government. The demise of the commercial Constitution exposes the commerce of the United States to relentless exploitation by trial lawyers who shop for hellhole jurisdictions, by attorneys general and treasurers who have become rainmakers for their states, and by crusading state lawmakers who inflict costly global-warming experiments on the entire nation. In that world, "federalism" is more a menace than a blessing. What is often called for is centralization--not the bureaucratic centralization of No Child Left Behind or Obamacare, but legal centralization. For example, airline and trucking deregulation worked because states' rights were overruled under a single federal rule: The states are categorically barred from re-regulating the rates, routes, or services of common carriers. By the same token, if one wants to enable individuals to purchase health insurance across state lines, the countless interests and regulators who now oppose that reform will have to be stopped from regulating and litigating it into the ground after the fact. Misapplied federalist thinking would make that impossible.
Congress is built to promote interest-group politics and parochial exploitation. The Roberts court, to its credit, has cut back some of liberalism's more exotic legal flora. If its interventions have remained diffident and ad hoc, that is because the justices have so far failed to recognize that the task of disciplining state-by-state factionalism and exploitation is, by constitutional design, principally that of the judiciary. A jurisprudence that would "let Commerce struggle for congressional action to make it free" has already pronounced it dead, as Justice Robert Jackson wrote in a dormant-Commerce Clause case in 1941. Not an original or particularly conservative insight--but one that originalists would do well to remember.
Michael S. Greve is the John G. Searle Scholar at AEI.
Photo Credit: iStockphoto/dieter Spears
ARTICLES & COMMENTARY Our Defunct Commercial Constitution By Michael S. Greve
National Review
Monday, May 17, 2010
There is, or there once was, such a thing as the "commercial Constitution." Most of the powers and prohibitions specified in the Constitution concern commercial matters: commerce itself, obviously, but also patents and copyrights, bankruptcy, taxation, tariffs and duties, the coinage of money, contracts, and property rights. Enough of those provisions have fallen into desuetude to suggest that we no longer have a commercial Constitution.
Conservative jurists should be favorably disposed to restoring it, not simply because doing so would help to protect commerce against a government that seems to know no restraint, but also for a deeper reason: "Structure is everything," Justice Scalia has insisted, and the basic stuff of the commercial Constitution is structure--the allocation of powers to and placing of limitations on particular branches and levels of government. The commercial Constitution thus offers an antidote and alternative to the airy abstractions and aspirational "rights" of contemporary constitutional law. Implementing a constitutional program along these lines, however, would require a serious rethinking of two central conservative legal tenets: originalism and federalism.
The Constitution's individual clauses presuppose some general comprehension of what the structure as a whole is supposed to do. Happily, the basic thrust of our constitutional commercial arrangement is perfectly clear: free trade and commerce across state borders. To that end, the Constitution prohibits state tariffs and "duties of tonnage," state discrimination against citizens of other states, state laws impairing the obligation of contracts, and states' exploiting the citizens of other states by means of taxation or regulation (an implied rule commonly known as the prohibition against "extraterritorial" state laws).
Congress can, in theory, block states' interfering in business under its power to regulate interstate commerce. However, legislative interventions can oppress as easily as liberate commerce. In fact, the odds of protecting commerce by means of federal legislation are much worse than 50/50. The Constitution's checks and balances are designed to make federal legislation deliberate and cumbersome, the better to prevent factional schemes and fevered responses to perceived crises. Those checks, though salutary in the ordinary course of business, prove debilitating when the task is to beat back state measures that hobble commerce. Ingeniously, therefore, the Constitution entrusts the protection of commerce in the first instance not to Congress but to the federal courts.
The viability of this arrangement depends on the federal courts' elaboration of the commercial Constitution by way of doctrine and constitutional common law. That is essential because states and legislators have every incentive to exploit the commerce of the United States and to evade the rules that protect it. The protection of the Constitution's guarantees against state commercial circumvention figured prominently in the Supreme Court's 19th-century book of business. Constitutionally barred from taxing imports, the states endeavored to tax importers instead; the Supreme Court enjoined them from doing so in 1827's Brown v. Maryland, lest the constitutional prohibition become an empty letter.
No specific constitutional clause barred states from taxing the instruments of the United States, including its central bank; but because "the power to tax involves the power to destroy," the Supreme Court supplied a constitutional common-law rule, inferred from the general structure of the Constitution, to block the tax in the 1819 decision M'Culloch v. Maryland. Likewise, no constitutional clause specifically prohibited New York from establishing a steamship monopoly to the exclusion of a rival steamship operating under a federal license; but in 1824's Gibbons v. Ogden, the Court read the license, which essentially served to free U.S. vessels from the obligations imposed on foreign ships, as also forbidding state monopoly and discrimination among domestic carriers. This position later developed into what is known as "implied federal preemption," a doctrine holding that, unless Congress declares otherwise, any federal law operates to the exclusion of any state law in the same field, regardless of whether the two conflict. Further, Chief Justice John Marshall's Gibbons opinion attributed "great force" to the notion that the Commerce Clause, even in the absence of congressional legislation, erects a judicially enforceable barrier against protectionist state legislation. This "dormant Commerce Clause" would in later decades play a central role in preventing states from doing indirectly what the Constitution bars them from doing directly.
The Supreme Court's principal means of making the rules of the commercial Constitution stick was its "diversity" jurisdiction--that is, jurisdiction over disputes between parties from different states. The exercise of this jurisdiction protects parties engaged in interstate commerce against judicial bias in a plaintiff's home-state courts. In commercial cases in which no state statute and no federal law or constitutional provision applied, the Court decided these "diversity" cases under a federal general common law--not under state law. The constitutional guarantee of an unbiased court, the theory went, implied a guarantee of access to an unbiased body of law.
If this constitutional universe is unfamiliar, that is because it was wiped out by the New Deal's very different Constitution. Contrary to the misunderstanding that is especially widespread among conservatives, the New Deal did not simply unleash the federal government's power on the states and the private economy. Rather, it expanded government power at all levels, state as well as federal. And to that end, it effectively repealed the commercial Constitution that had governed the United States for roughly 150 years.
Supreme Court diversity jurisdiction became optional in 1928, and, over the ensuing decades, the federal courts created a slew of "abstention" doctrines that oblige federal courts to defer to state law, and to state courts--even when federal jurisdiction plainly exists. The federal general common law was summarily abolished--as unconstitutional, no less--in Erie Railroad v. Tompkins, the 1938 decision that effectively commands federal courts hearing diversity cases to follow the state law chosen by the plaintiff. Of the entire constitutional edifice, only the dormant Commerce Clause and federal preemption law survive, and those only in a greatly weakened form. The dormant Commerce Clause was stripped of its "extraterritoriality" prohibition: While outright protectionism is still prohibited, states may tax, regulate, and exploit other states' citizens and businesses virtually without hindrance. (Kansas may regulate the Internet so long as it does not overtly favor its own citizens.) Federal preemption lost its presumption of exclusivity: Its post-New Deal touchstone is the "intent" of Congress, and, unless Congress has made its preemptive intent unmistakably clear, the Court will construe federal statutes against preemption and in favor of the states' "traditional" police powers.
It is to this jurisprudence, driven by the New Deal's eagerness to unleash interest-group politics and to enhance the redistributive power of government at all levels, that we owe our current chaotic commercial order. Economic actors must now deal with a cascade of conflicting and compounding demands and regulations, inflicted by a multitude of semi-autonomous institutional actors and a wholly autonomous litigation industry. First prize often goes to the most exploitative regulator. The Erie Railroad regime, for example, pulls lawsuits into the most pro-plaintiff jurisdiction available: hence the litigation explosion. At the same time, current practices regarding preemption law and the dormant Commerce Clause reward the state that proves most creative in taxing and regulating outsiders.
What is the correct conservative response to this transformation? By some conservatives' lights, the New Deal metamorphosis hasn't gone far enough. Justices Scalia and Thomas have denounced the dormant Commerce Clause as a pure judicial invention. Justice Scalia would still enforce the doctrine, on stare decisis grounds, against overtly discriminatory state laws and against laws identical to those invalidated in the past. That is not much of a restraint: Even the stupidest state legislator can write a discriminatory statute in neutral language. Justice Thomas would abolish the dormant Commerce Clause altogether and instead protect interstate commerce under the explicit provisions of the Import-Export Clause, and perhaps under the Privileges and Immunities Clause. Good luck with that: The Import-Export Clause provides protection against some, but not all, protectionist taxes, while it offers no protection from equivalent regulations; the P&I Clause, for its part, protects individuals but not corporations. The entire point of the dormant Commerce Clause is to block obvious state maneuvers to circumvent the constitutional protections enjoyed by businesses. To eviscerate the doctrine is to expose all interstate commerce to unchecked state exploitation.
The Court's avowed originalists have taken an equally radical view of federal preemption. Last year's decision in Wyeth v. Levine was occasioned by a tragic injury to a patient whose doctor and nurse, in an act of flagrant malpractice, had administered a drug in direct contravention of a warning label that conformed with--and was practically dictated by--Food and Drug Administration (FDA) requirements. Even so, the Court decided that federal law does not preempt tort lawsuits under state law. FDA-approved warnings, the 6-3 majority said, are a mere federal minimum; state courts and lay juries can do better in determining the adequacy of drug labels. In a breathtakingly expansive concurring opinion, Justice Thomas inveighed against any implied preemption and insisted that federally regulated drug manufacturers have no "unfettered right, for all time, to market [a] drug with the specific label that was federally approved." That form of originalism recasts preemption law as something it has never been. Gibbons v. Ogden directly confronted the argument that a federal coastal trading license--a routine license of far less obvious preemptive force than a painstakingly considered and negotiated drug label--"gives no right to trade." Marshall rejected that argument. By the lights of Justice Thomas's Wyeth opinion, Gibbons was either decided wrongly or should have been decided under the dormant Commerce Clause--if, pace Justice Thomas, such a thing exists.
Also last year, the Court held that the lending practices of federally chartered financial institutions are subject to open-ended fraud investigations and lawsuits by state attorneys general. Ever since 1864, the National Bank Act has shielded the banking operations of federally chartered institutions against state investigation and prosecution, leaving state banks subject almost exclusively to state supervision. This dual banking system reflects the 19th-century constitutional understanding, exemplified by M'Culloch v. Maryland, that any given set of private transactions should be regulated by the federal government or by states--but not by both. Justice Scalia's 5-4 majority opinion in Cuomo v. Clearing House Association, joined by the Court's liberal bloc, effectively ends that sensible system. M'Culloch hovers over Justice Scalia's opinion, but is not cited therein. By the lights of Cuomo, it may no longer be good law.
A jurisprudence that renders John Marshall's commercial Constitution obsolete is probably mistaken. And when that same jurisprudence turns the Constitution and its federalism into a trial lawyers' Bill of Rights, suspicion hardens into certainty. The question is, What went wrong?
One obvious source of error is an excessively clause-bound, literalist originalism. On this view, the specific clauses of the Constitution and their historically settled meaning are the Constitution, and the will of the Congress must be the declared will of the Congress. This is what drives originalists' hostility to the dormant Commerce Clause and to federal preemption. It also drives their enthusiasm for Erie Railroad, which originalist justices and scholars have sought to establish as a bulwark against judicial overreach even when the decision manifestly does not apply. Structure may be "everything," but hidebound originalism holds that judges may do nothing to make structure work: This would smack of raw politics and judicial imperialism. So long as this Manichean view prevails, the commercial Constitution will remain a dead letter.
A second error, pervasive not only among jurists but among conservatives more broadly, is the misguided expectation that federalism will automatically translate into smaller, more responsible government. The demise of the commercial Constitution exposes the commerce of the United States to relentless exploitation by trial lawyers who shop for hellhole jurisdictions, by attorneys general and treasurers who have become rainmakers for their states, and by crusading state lawmakers who inflict costly global-warming experiments on the entire nation. In that world, "federalism" is more a menace than a blessing. What is often called for is centralization--not the bureaucratic centralization of No Child Left Behind or Obamacare, but legal centralization. For example, airline and trucking deregulation worked because states' rights were overruled under a single federal rule: The states are categorically barred from re-regulating the rates, routes, or services of common carriers. By the same token, if one wants to enable individuals to purchase health insurance across state lines, the countless interests and regulators who now oppose that reform will have to be stopped from regulating and litigating it into the ground after the fact. Misapplied federalist thinking would make that impossible.
Congress is built to promote interest-group politics and parochial exploitation. The Roberts court, to its credit, has cut back some of liberalism's more exotic legal flora. If its interventions have remained diffident and ad hoc, that is because the justices have so far failed to recognize that the task of disciplining state-by-state factionalism and exploitation is, by constitutional design, principally that of the judiciary. A jurisprudence that would "let Commerce struggle for congressional action to make it free" has already pronounced it dead, as Justice Robert Jackson wrote in a dormant-Commerce Clause case in 1941. Not an original or particularly conservative insight--but one that originalists would do well to remember.
Michael S. Greve is the John G. Searle Scholar at AEI.
Photo Credit: iStockphoto/dieter Spears
Tuesday, May 25, 2010
The Federalist Papers No. 24: The Powers Necessary to the Common Defense Further Considered
From Human Events:
The Federalist No. 24: The Powers Necessary to the Common Defense Further Considered
by The Federalist Papers
05/25/2010
The Federalist No. 24
The Powers Necessary to the Common Defense Further Considered
Independent Journal
Wednesday, December 19, 1787
[Alexander Hamilton]
To the People of the State of New York:
TO THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations.
It has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of America, as expressed in most of the existing constitutions. The proprietory of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the LEGISLATIVE authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our State constitutions, and rejected in all the rest.
A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature.
If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the legislature, not in the executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.
Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor.
If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his disappointment to find that two only of them1 contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the Legislature to authorize their existence.
Still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions.
If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings.
But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed.
Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger.
Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature.
In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements might be annoyed. There are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy.
If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself.
PUBLIUS
The Federalist No. 24: The Powers Necessary to the Common Defense Further Considered
by The Federalist Papers
05/25/2010
The Federalist No. 24
The Powers Necessary to the Common Defense Further Considered
Independent Journal
Wednesday, December 19, 1787
[Alexander Hamilton]
To the People of the State of New York:
TO THE powers proposed to be conferred upon the federal government, in respect to the creation and direction of the national forces, I have met with but one specific objection, which, if I understand it right, is this, that proper provision has not been made against the existence of standing armies in time of peace; an objection which, I shall now endeavor to show, rests on weak and unsubstantial foundations.
It has indeed been brought forward in the most vague and general form, supported only by bold assertions, without the appearance of argument; without even the sanction of theoretical opinions; in contradiction to the practice of other free nations, and to the general sense of America, as expressed in most of the existing constitutions. The proprietory of this remark will appear, the moment it is recollected that the objection under consideration turns upon a supposed necessity of restraining the LEGISLATIVE authority of the nation, in the article of military establishments; a principle unheard of, except in one or two of our State constitutions, and rejected in all the rest.
A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of the legislature.
If he came afterwards to peruse the plan itself, he would be surprised to discover, that neither the one nor the other was the case; that the whole power of raising armies was lodged in the legislature, not in the executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.
Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor.
If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his disappointment to find that two only of them1 contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the Legislature to authorize their existence.
Still, however he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him, that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions.
If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament, that in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such a man could hardly forbear remarking, that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings.
But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace, would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed.
Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These circumstances combined, admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger.
Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace; a small one, indeed, but not the less real for being small. Here is a simple view of the subject, that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature.
In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenseless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements might be annoyed. There are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy.
If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the defense of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself.
PUBLIUS
Monday, May 24, 2010
What Is The Constitution?
From The Tenth Amendment Center:
What is the Constitution?
22. May, 2010
by Rob Natelson
What is the Constitution?
It is a document designed to protect our freedom by imposing law on those who wield political power. Without such law, Americans would be under the constant threat of tyranny.
The word “constitution” did not always refer to a particular document. The word is based on the Latin verb constituere, which means to arrange or decide. In its original English sense, a “constitution” was how a political system was set up. People spoke (and sometimes still speak) of the unwritten and evolving “constitutions” of Britain and of the ancient Roman republic.
As I explain in The Original Constitution, the American Founders acknowledged a huge debt to the British and Roman traditions, but they consciously rejected the British and Roman approach to constitutions. Specifically, they rejected the “evolutionary” and “unwritten” constitutional idea in favor of a written document that would lay out the rules in an clear and organized fashion.
There were only a few precedents for this approach: Sweden’s “Instrument of Government” was probably the first. Under Oliver Cromwell (1649-58), the English adopted a short-lived “Instrument of Government,” and then a short-lived “Humble Petition and Advice.” The name of the latter English constitution suggests how little those documents tempered Cromwell’s autocracy.
At the dawn of Independence, however, Americans had lived under colonial charters for a century and half, so they knew a written constitution could work. From 1776 to 1780, the Founding Generation promulgated state constitutions or “frames of government” for Vermont and for eleven of the thirteen original states. (Connecticut and Rhode Island, simply amended their colonial charters.)
In 1776, the Continental Congress began to draft our first national constitution, the Articles of Confederation. It was fully ratified in 1781. When the Articles proved insufficient, a federal convention proposed, and state conventions ratified, our present U.S. Constitution.
As I discuss in The Original Constitution, the Founders had certain common goals and values. To understand what our Constitution really is, we need to understand one goal in particular: To protect liberty by imposing law, in the form of objective and clear rules, on government officials.
In seeking to protect liberty by imposing law on political officeholders, the Founders walked in the Biblical and English traditions. For millennia, governments had promulgated laws to control their subjects but only ancient Israel and England seriously sought to control those in power. In England, the best-known steps of this sort were Magna Carta and the English Bill of Rights.
However, the American state and federal constitutions—and particularly the U.S. Constitution—imposed law on the government in a much more systematic way. The basic rules were collected in a single document. Moreover, as I explain in The Original Constitution, nearly all the terms in that document are very clear when read by the light of the Founders’ language, history, and law.
The courts were empowered to enforce the rules in the Constitution. If necessary, the courts could interpret them, but only by using the methods courts normally used in interpreting legal documents.
Get the New Book Today!
When politicians violated the rules, their actions were void. In case a change in the rules was necessary, the Constitution included an amendment process.
Although the U.S. Constitution provided for a large measure of democratic governance, the Founders knew that there could be too much of a good thing: After all, it was the democratic government of Athens that had killed Socrates. So they imposed law even on those officeholders that were democratically elected.
Yet writing down the rules this way also was a profoundly democratic act. It enabled any citizen—or at least any citizen with a smattering of legal knowledge—to understand his own rights and the limits of government action. For the people at large, this was a tremendously empowering event.
By imposing law on the law-givers, the Constitution was key to the brilliant American success story.
Rob Natelson is a long-time Professor of Law at the University of Montana and a leading constitutional scholar. He is co-author of a forthcoming book on the Necessary and Proper Clause to be published by Cambridge University Press. He is also the author of The Original Constitution: What it Actually Said and Meant, published by the Tenth Amendment Center. Professor Natelson will shortly be leaving academia to work full-time at the Independence Institute.
What is the Constitution?
22. May, 2010
by Rob Natelson
What is the Constitution?
It is a document designed to protect our freedom by imposing law on those who wield political power. Without such law, Americans would be under the constant threat of tyranny.
The word “constitution” did not always refer to a particular document. The word is based on the Latin verb constituere, which means to arrange or decide. In its original English sense, a “constitution” was how a political system was set up. People spoke (and sometimes still speak) of the unwritten and evolving “constitutions” of Britain and of the ancient Roman republic.
As I explain in The Original Constitution, the American Founders acknowledged a huge debt to the British and Roman traditions, but they consciously rejected the British and Roman approach to constitutions. Specifically, they rejected the “evolutionary” and “unwritten” constitutional idea in favor of a written document that would lay out the rules in an clear and organized fashion.
There were only a few precedents for this approach: Sweden’s “Instrument of Government” was probably the first. Under Oliver Cromwell (1649-58), the English adopted a short-lived “Instrument of Government,” and then a short-lived “Humble Petition and Advice.” The name of the latter English constitution suggests how little those documents tempered Cromwell’s autocracy.
At the dawn of Independence, however, Americans had lived under colonial charters for a century and half, so they knew a written constitution could work. From 1776 to 1780, the Founding Generation promulgated state constitutions or “frames of government” for Vermont and for eleven of the thirteen original states. (Connecticut and Rhode Island, simply amended their colonial charters.)
In 1776, the Continental Congress began to draft our first national constitution, the Articles of Confederation. It was fully ratified in 1781. When the Articles proved insufficient, a federal convention proposed, and state conventions ratified, our present U.S. Constitution.
As I discuss in The Original Constitution, the Founders had certain common goals and values. To understand what our Constitution really is, we need to understand one goal in particular: To protect liberty by imposing law, in the form of objective and clear rules, on government officials.
In seeking to protect liberty by imposing law on political officeholders, the Founders walked in the Biblical and English traditions. For millennia, governments had promulgated laws to control their subjects but only ancient Israel and England seriously sought to control those in power. In England, the best-known steps of this sort were Magna Carta and the English Bill of Rights.
However, the American state and federal constitutions—and particularly the U.S. Constitution—imposed law on the government in a much more systematic way. The basic rules were collected in a single document. Moreover, as I explain in The Original Constitution, nearly all the terms in that document are very clear when read by the light of the Founders’ language, history, and law.
The courts were empowered to enforce the rules in the Constitution. If necessary, the courts could interpret them, but only by using the methods courts normally used in interpreting legal documents.
Get the New Book Today!
When politicians violated the rules, their actions were void. In case a change in the rules was necessary, the Constitution included an amendment process.
Although the U.S. Constitution provided for a large measure of democratic governance, the Founders knew that there could be too much of a good thing: After all, it was the democratic government of Athens that had killed Socrates. So they imposed law even on those officeholders that were democratically elected.
Yet writing down the rules this way also was a profoundly democratic act. It enabled any citizen—or at least any citizen with a smattering of legal knowledge—to understand his own rights and the limits of government action. For the people at large, this was a tremendously empowering event.
By imposing law on the law-givers, the Constitution was key to the brilliant American success story.
Rob Natelson is a long-time Professor of Law at the University of Montana and a leading constitutional scholar. He is co-author of a forthcoming book on the Necessary and Proper Clause to be published by Cambridge University Press. He is also the author of The Original Constitution: What it Actually Said and Meant, published by the Tenth Amendment Center. Professor Natelson will shortly be leaving academia to work full-time at the Independence Institute.
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