Posted: June 6, 2011
We mark this tenth anniversary of the Claremont Review of Books at the best of moments, when the country is open, as it has rarely been, to the lessons that this journal has sought to teach. As some of our more prescient friends grasped at the time, the election of Barack Obama, along with a Congress firmly controlled by his party, could offer a vast mind-clearing experience. The country was about to get a hefty dose of what the unalloyed, undiluted Left would serve up. And so, in the run-up to the midterm election, we saw in the country a remarkable, rising—and utterly justified—anger over the ramming through of Obamacare. The recoil has been twice-triggered, from the substance and the process—from the national takeover of medical care, and from the process that begot it, the tawdry way it was done. All of this followed the partial nationalization of the auto industry, with some of us still wondering on just what ground of law the president of the United States was able to cashier the president of General Motors. I don't recall a time when there has been in the country such intense, widespread interest in looking again to the Constitution in searching for the limits to the reach of the national government; a government that was supposed to be "limited" in its powers, directed to a set of more limited, essential ends.
There is a serious danger, though, that some of our friends may be drawn away, with their wits and energies dissipated, as they try to find again that list of "enumerated" functions or powers that offers a guide to the limiting of the government. My late professor Morton Grodzins at the University of Chicago, one of the great defenders of federalism, argued years ago that there was no organizing principle that explained how functions or powers were assigned in this system, local or federal. He argued that, if the functions of the government were assigned by some measure of "naturalness" or fit, the local governments could be left with nothing to do. And even Justice Harry Blackmun, in one of his rare moments of lucidity, recognized in Garcia v. San Antonio Metropolitan Transit Authority (1985) that there was no such clear organizing principle that could explain, for example, why operating a municipal airport and disposing of solid waste were functions of local government, while regulating intrastate sales of natural gas, or in-house domestic services for the aged and handicapped, should be functions of the federal government. I would caution that such a list of enumerated powers is a mirage, which will keep dissolving the closer we get to it.
Rule of Law
I would instead counsel our earnest friends in the Tea Party movement that those limits on government, whether understood by Plato or the American Founders, were most critically moral limits. They depend on our capacity to reason over the extensions of power that were justified or unjustified, legitimate or illegitimate. They depend, then, on the canons of moral reasoning, canons that are used every day by ordinary folk. And so if on the way home one day I find the fire department closing off access to the street in order to fight a fire, my liberty has been curtailed, but I don't think for a moment that my rights, whether natural or constitutional, have been abridged. My liberty to walk down the street has been restricted with evident justification, for the purpose of protecting the unwary from venturing into hazards.
The founders understood that we would never be without this moral reasoning, employed every day, and that it would be needed every day in order to understand our claims of rights under the Constitution. But this mode of reasoning has often been helped along by moral maxims, some in the text of the Constitution, but most of them not. Justice Joseph Story famously remarked (in the Charles River Bridge case, 1837) that what may not be done directly may not be done indirectly. If it is wrong to kill Jones, it is wrong to hire someone to kill Jones. If the federal government did not have the authority to set the wages at the Hoosac Mills in North Adams, Massachusetts, it may not use the tax system as a way of legislating by indirection. The government may not raise taxes for the business and then remit the taxes if the owners accept the federal policy on wages (U.S. v. Butler, 1936). As Justice Owen Roberts said in writing for the Court, that was forcing us to buy back our freedom.
That particular principle of Justice Story's was not contained in the Constitution, and though the Constitution contains others of moral significance, people seem to have forgotten the moral reasoning that stands behind them. A dozen years ago the Democrats sought to finesse the impeachment of Bill Clinton by offering instead a vote to "censure." But if the censure was a real punishment—if it came with a fine, or with disbarment from the practice of law, and a finding of guilt, and all of that attached to Clinton's name—the Democrats found themselves running into a "bill of attainder," quite explicitly barred by the Constitution. But what was the moral logic of the bill of attainder? A legislature needed to accept the discipline of marking off the "wrong" it meant to forbid, and defining that wrong in impersonal terms, terms that would apply then to anyone whose conduct fitted the wrong described in the statute.
To put it another way, the structure of the separation of powers works to impart this caution to those who legislate: You had better be careful in the laws you frame because you will not be given the authority to direct prosecutions under those laws. Once you have passed the bill into law, that law will be put in hands of others to administer—perhaps the hands of people quite unfriendly to you. Therefore, as a matter of high prudence, one should be careful not to legislate for others what he would not be willing to see applied, with its full force, to himself as well.
What people don't typically understand is that the logic of the separation of powers is a logic that renders operational what the philosophers call the universalizability principle or the categorical imperative: it puts the question of what the principle is behind one's position and whether he would be willing to honor the same principle when it cuts against his interests. That is a formal principle, but it may work with notable, substantive effects. Democrats summoned a high enthusiasm for the Independent Counsel when loosed on members of the Reagan Administration; but when the powers of that office were concentrated on President Clinton, the Democrats quickly lost their taste for that novelty, and allowed it to lapse.
These arrangements do not merely reflect, then, the structure of the separation of powers. They spring from the logic of the rule of law, and that logic, at its root, is a moral logic, which comes most decisively into play in gauging the reach of the federal government.
Local or Federal?
John Marshall lifted the curtain on this matter in Dartmouth College v. Woodward (1819), when he asked as an aside: if a state legislature passed a law that dissolved contracts of marriage without the consent of the contracting parties, might that pose a serious question under the Contracts Clause of the Constitution (Art. I, Sec. 10)? But the case didn't exactly raise that question, and so there was no strict need to address it. Still, he did lift the curtain, and the point to be glimpsed was this: there may be no subject so local that it may not come into conflict with principles so woven in the Constitution that they form part of the fundamental law. There has been nothing more characteristic of a jurisdiction distinctly local than the laws on marriage and the family, and yet Marshall intimated that something in those laws could raise issues engaging the fundamental law of the Constitution. Later, Justice Benjamin Curtis in his dissent in Dred Scott v. Sandford (1857) invoked the Contracts Clause: Dred and Harriet had been married in free territory. Would that marriage be dissolved now when they were moved back to Missouri and returned to a condition of slavery?
In the 20th century we would find the Supreme Court reviewing aspects of marriage, and finally striking down the ban on interracial marriage with Loving v. Virginia in 1967. In the 1980s we found the recognition breaking through that the Constitution would surely have to bear on the grounds on which courts were assigning the custody of children in cases of divorce in interracial marriages. We found good liberal judges (like Alexander Holtzoff in Washington, D.C.) who had absorbed the notion that, to be black in America, was to be affected with serious disabilities. And so, for the "interests of the child," the judges would often assign the children to the white parent, or in the case of Holtzoff, refuse to allow a black man to become the adoptive father of the child borne by his white wife. The result was that, simply on the basis of color, certain men and women were being deprived of custody of their children. The lesson emerging here is that there is no matter so local, so prosaic, that it cannot touch issues that engage the principles of the fundamental law.
And that, curiously, brings us back...to Immanuel Kant. In another account of the categorical imperative Kant remarked that for every kind of act in which the will is impelled by desire or intention, there is a certain class of those acts that one ought not do. But really? For every class? Aren't there certain things that are quite morally indifferent? I could choose bingo over Beethoven. I could choose the peanut butter over the coq au vin. I might reveal in these choices a sensibility less refined, but surely I would not be doing something morally wrong. And yet, what Kant evidently saw here was this: that there is nothing we can name—no thing, no activity—that cannot be part of a means-end chain in which a harm is inflicted without justification. The skill of driving may be used to drive an ambulance—or a getaway car for the Mafia. A pen may be used to make a donation to charity—or to defraud. The choice between the peanut butter and the coq au vinwould be innocent, but in that universe of things that humans may eat, some of us may insist on ruling out (as Michael Flanders and Donald Swann had it) "the roast-leg of insurance salesman." We have foreclosed cannibalism in the scheme of our cuisine, and through other moral screening, on every class of acts we can name, there are choices we have foreclosed to ourselves. They might be ruled out by the law, or ruled out by our own sense that they are somehow unthinkable.
But the point bearing on the Constitution would be this: what we discover, in putting together Kant and John Marshall, is that there is no subject so prosaic that it cannot offer the occasion of harms or wrongs that involve a violation of the principles contained in the fundamental law of the Constitution. During the debate over the Born-Alive Infants' Protection Act in 2002, I was invoking John Marshall to state this axiom: that if the Supreme Court can articulate new rights under the Constitution, the legislative branch must be able to vindicate the same rights, on the same ground in the Constitution, and in filling them out, marking their limits. The one thing that should not be tenable here is that the Court can articulate new rights—and then assign to itself a monopoly of the legislative power in shaping those rights. And so, if the Court can find constitutional rights lurking in matters of assigning the custody of children, we cannot rule out the possibility that Congress could plausibly legislate at some point to secure those same rights, even though it would be entering a domain of law once thought to be distinctly local.
Limits that Liberate
The truth that dare not speaks its name then is this: there is no formula, no principle, nothing arising even out of the logic of the Constitution or the American regime that can furnish any hard limits that confine the federal government's reach or divide the local from the national jurisdiction. What is at work here are considerations of prudence, but considerations of prudence at a high level, which make the most profound difference for the kind of people we will be. What is at work is a kind of George Eliot perspective, mingled with Tocqueville: that it is good for people to take responsibility for things within their reach, rather than holding back and waiting for some more distant, central authority to take responsibility. We may be faced with the question of aged parents: do we take them into our own homes, or do we put them in institutions run by the government? We may have plausible reasons for the latter, but I don't think we can doubt that if, over a long series of cases, we fall into the groove of avoiding responsibility ourselves, and shifting responsibility to the government, we will become, over time, a rather different people.
But to say that we are governed finally by prudence is to say that we are guided by the principles that must ever govern our judgment about the ranking—of the things more or less important, more or less good—of those ends we are pursuing. The "limits" we keep referring to, in our talk about "limited" government, cannot ultimately be limits marked by subject matter, such as coinage or armed forces. They are, rather, moral limits. John Marshall, and Alexander Hamilton before him, fixed on that phrase "necessary and proper": were the means, or the powers, at hand necessary to ends that were legitimate, justified, rightful for the government to pursue?
Plato said that the man with self-control had a constitutional ruler within himself. That line points up for us that the very idea of a constitution takes its reference from the moral agent, the human person marked by moral understanding. He understands, as Abraham Lincoln and Thomas Aquinas pointed out, that he cannot coherently claim "a right to do a wrong." He understands then the things not rightful for him to do even in the name of his freedom and his command of himself. He understands that he is obliged to restrain his choices to that range of things legitimate for him to choose and to do. He is not weaker in being constrained in that way. A man with self-control who foregoes to himself the things he ought not do, is not weaker, but stronger, for he can concentrate his powers now on that vast universe of endslegitimate to choose. And in the same way, a government under moral, constitutional restraints is not a weaker, but a stronger government, concentrating its powers on the things rightful for it to do.
Just what the government may rightfully reach is a question that will always have to turn then on the canons of moral reasoning, about the purposes that are justified or unjustified, legitimate or illegitimate. Regrettably, those canons are treated too often by many of our friends as though they were subjective, with no discipline of reasoning attached to them. These commentators have a vivid sense of the way in which judges have massively misused their claim to rise above the positive or man-made law in the name of a higher law. Under the affectation of natural justice we find judges installing, with high pretension, their own political agendas. It doesn't seem to make much headway to point out to our friends that they could hardly be aware of a "misuse" of the canons of reasoning and natural law unless they had some awareness, in the first place, of standards of judgment that tell the difference between a rightful or wrongful use. These friends may be rightly diffident about their command of any such canons of reason outside the text of the Constitution. But they may find more surety, then, in finding their guide in those principles of lawfulness that have ever grown up about a regime of law, some finding expression in the Constitution—and some not. If we sought to apply this approach to our current crisis, I'd pick out just a few of these principles that could have borne with considerable effect in restraining the recent, dramatic expansion of the government.
I would follow Richard Epstein of the University of Chicago in finding a deep moral fault, and breach of the Constitution, in the contempt shown for the "obligation of contracts." Pension funds and individual investors bought bonds in Chrysler, and yet found their claims thrust aside in the political management of the crisis. Of course, in Thomas Hobbes's perspective, contracts were "but words and breath" without the sword of the law behind them to enforce them. And that understanding began to be absorbed by the courts in the 1930s: that the government's power had to be implicated in the validity of any contract, and therefore it must fall to the government to modify contracts for the public good. The result, as Justice George Sutherland pointed out at the time, was to make a nullity of the "obligation of contracts."
What Sutherland understood, and some lawyers in the Age of Obama may have forgotten, is what Daniel Webster understood as the moral and the "universal" component in contracts. As Webster recognized, the positive law on contracts will vary from place to place, but Webster denied that the obligation of a contract "springs from the particular law of the place where the contract is made." It springs rather from the moral logic behind the notion of promising: that logic subsists without that local law and quite independent of it. Webster imagined two men making a contract in New York for the delivery of a "domestic animal or utensil of husbandry, or a weapon of war." If the parties moved to Pennsylvania or Maryland, there would be different laws for different terms and remedies, but the obligation would remain intact. Suppose, though, that these men were delivered to a "wilderness, or a desert island, beyond the reach of the laws of any society":
[T]he obligation of the contract still subsists, and is as perfect as ever, and is now to be enforced by another law, that is, the law of nature.... Whence do such contracts derive their obligation, if not from universal law?
Carpenters and workmen think they have the commitment of a builder to do the work he has engaged them to do. On the strength of that promise they forego other work that would be necessary in sustaining themselves and their families. They put themselves at risk then of a serious injury when they depend on the promise made in the contract. And it is the prospect of that serious injury that justifies the move of the community to make that promise enforceable in the law. That is why we have a law of contracts.
The Commerce Clause, as it was originally understood, was a rather common sense thing. It did not offer a sophisticated, econometric model, taking account of the complexities of a market economy. But it offered a rough limitation on the reach of governmental power—and with markers that were quite clear. The early cases under the Commerce Clause involved barriers that were cast up to the movement of persons and goods by the laws of the states. New York, for example, gave a monopoly to Robert Fulton in the coasting trade and barred ships from other states. (Or perhaps, more recently, New York's then-governor, Mario Cuomo, allowed wine to be sold on Sundays in supermarkets, but only from New York vineyards. He would have put up then a barrier by law to goods coming in from other states.) There was no need to measure the volume or significance of the commerce, in gauging how many crates or tons were moving. The decisive point would have been that there is a barrier put up by law.
And that is the sense we may draw upon if Congress acts under the Commerce Clause to override those laws in the states that prevent people from buying medical insurance across state lines. There is no need, in these kinds of cases, to measure the volume of business or speculate, say, on whether the firing of 29 employees out of 800 in a factory for men's clothing in Richmond would likely cause a strike, and why a strike could cause a serious interruption in the flow of commerce, even though that plant accounted for no more than one half of 1% of the men's clothing made in this country. But in the 1930s the federal government could impose a union at this private plant. That is what the Commerce Clause turned into with the New Deal, and where the limits were lost. As the late Joe Sobran famously remarked, "just think of what Stalin could have done if he'd only had the Commerce Clause."
Justice Clarence Thomas, virtually alone on the Court, has been sounding the case for returning to that simpler, clearer understanding of the Commerce Clause that was jettisoned during the New Deal. The other conservative Justices seem more concerned with the upheavals that might be created in the bodies of law that have been built upon that expansive understanding of the Commerce Clause, including the Civil Rights Act of 1964. But my hunch is that the dislocations can be contained, and that here as in other places we may find, in the wreckage, a certain liberation. If the Commerce Clause cannot really explain the reach of the law in any case, that becomes the occasion to think anew about the ground of the law.
During the crisis over the auto companies, we found the president of the United States, in effect, removing the president of General Motors. There was no legal ground exactly. This was a state of affairs arising from the fact that the federal government came in to bail out the corporation in a crisis and assumed a good portion of the voting stock. What was involved here, then, was the government's authority to go into business, take over a private entity in competition with other private businesses. Justice Sutherland once remarked that anyone who confuses a government with a private business probably does not understand the nature of either one. And the decisive thing not understood here is that there cannot be a confusion of these two roles: the agency that makes the moral rules governing commerce—deciding what products and services, what methods of business, are legitimate—cannot itself be a player under those rules. For the critical maxim here is that no man (and no agency) should be a judge in its own cause. When the government invests the money of taxpayers in any business, it runs the risk of seeing those funds lost if the business fails. It becomes tempted to adjust the rules under the name of fairness, while actually tilting the field, with new tariffs and taxes.
Public Service Unions
But finally, if I were picking out a strategic place to reassert limits on the national government, I would try to reverse John Kennedy's decision in the first days of his administration to establish, by executive order, the right of employees in the civil service to engage in collective bargaining. Since that time, nearly 50 years ago, public service unions have become one of the engines constantly at work to expand the payroll—and the government. Those unions now dominate the politics of California and New Jersey, and have driven those states into their current crises, with a shrinking private sphere as tax rates drive out businesses. And so we have reached the point recently in which there are more unionized employees in the public sphere than in the private. But more than that, in salaries and benefits, compensation in the public sector, among the unionized employees, exceeds compensation in the private sector by 45%. Last fall, New Jersey Governor Chris Christie remarked in that vein on those teachers in his state who could not be fired, and who have resisted having their benefits trimmed, while all of this was being paid for by people earning far less, including those who have indeed been laid off from work.
What principle could be asserted here to undo this state of affairs? Calvin Coolidge drew national attention to himself as governor of Massachusetts when he opposed the right of the Boston police to strike. His line, resonating through the country, was that no one had the right to strike against the public safety, anywhere, anytime. Ronald Reagan took that proposition seriously—and gave it dramatic resonance again with his firing of the air traffic controllers who went on strike. And Reagan's reasons, following Coolidge, had a rationale that runs back to the logic of the public service. After all, many things done by public agencies used to be done by private services, and still may be, whether it is running schools or roads or bridges. The rationale for shifting ownership and control to a public agency was that the service was so critical to the community that a cessation of service could cause massive injury to the public. If we recover that original understanding, we would be on firm ground on which to say that, since strikes cannot be tolerated in this service, neither can unions, whose main weapon is the prospect of closing down services thought to be necessary and vital to the life of the community. And in making that point, it's useful to be clear that we would not be merely asserting one set of preferences over another. We would be invoking a principle that connects with the logic and the rationale of the government itself.
Beyond the Constitution
To bring the strands together, then: if we respect the notion of privacy, so widely touted today; if we understand why the players under any system cannot be the makers of the rules; and if we understand why a regime of freedom is enhanced by a private economy, not owned and directed by the state, the very logic of a constitutional government contained in itself many parts that cast up moral warnings and salutary inhibitions on the reach of the government. My pitch is that these parts of our regime of constitutional restraint may offer a better guide to the rightful limits of the government than any list of objects we can devise. The maxims or principles I've been pointing to draw upon the logic of lawfulness, or the logic of morals itself.
But then the paradox: all of these principles stem from a moral logic, but they do not themselves supply the substantive moral understandings that are behind these maxims. That is why Stephen Douglas could affirm the procedures of government by consent, and think it quite compatible with that principle that the people could legitimately choose slavery for some men so long as it is done with a majority vote. The assumption was that a regime of elections is all process and no substance; that we were free to choose slavery or even genocide as long as we do it through the vote of a majority. And yet if we understand the deep principles behind this regime of consent, we would understand why we are not free to choose in that way. The Constitution enjoins us not to impair the obligations of contracts, but Justice Rufus Peckham reminded us in Lochner v. New York (1905) that we must be talking about legitimate contracts, directed to legitimate ends, not contracts for prostitution or for murder.
We are enjoined not to pass ex post facto laws and to make something punishable after the fact. But there are many places, especially in the law of torts, where we pronounce punishments after the fact for things people should have understood were wrong even if there were no statutes giving them direction at the time. The truth of the matter comes to this: we may pass "retrospective" laws if they are justified, but they become barred as ex post facto laws if they areunjustified. The Constitution, as it is now, does not tell us what makes the difference between a legitimate and illegitimate purpose for a contract; nor does it tell us when a retrospective law is justified or unjustified.
The teaching that cannot finally be evaded then is that, even with the guidance of the Constitution, even with some of the principles contained there, imparting a useful discipline, casting up warnings, the decisive grounds of judgment must be found elsewhere, outside the text. They will have to be found, even yet, in those substantive moral principles that are not contained in the Constitution—and could never be entirely contained there. The Constitution remains as a vital framework, but it is evident that even many lawyers and jurists have forgotten the moral reasoning behind its articles and clauses. And for those of us who collaborate in the Claremont Review that project forms, for us, steady work.
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For Correspondence on this essay, click here.