Friday, January 8, 2016

Abbott vs. Hamilton

“That was a real nice declaration.
Welcome to the present, we’re running a real nation.”

Happy New Year, everyone!  I’m writing today from the Annual Meeting of the Association of American Law Schools.  After having just attended a Constitutional Law Section session on “Resistance and Recognition,” I returned to my room to see this article by Buzzfeed’s Chris Geidner:  Texas Governor Proposes Nine Amendments To The U.S. Constitution.

In brief, Texas Governor Greg Abbott urges states to call a constitutional convention to amend our foundational document so that we can “restore” allocations of authority he believes dictated by the United States Constitution but ignored by presumably all the branches of the federal government.  Like much nostalgia, however, Abbott’s Norman Rockwell vision of constitutionalism does not accurately recall the past it lionizes.

Take number VII of his proposals, perhaps rendered in Roman numerals to trade on the authority of antiquity (h/t Chris McDaniel).  Abbott advocates amending the Constitution to “Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.”  Like many ostensible conservatives, Abbott clearly believes that the powers of the federal government have been improperly expanded through judicial (and probably congressional and executive) interpretation, and that these powers should be cut back, limited to ones expressly stated in the text of the Constitution.

In deeming this a restoration, Abbott expresses the belief (or wish?) that the United States Constitution we have does so limit our federal government.  In reality he seeks to impose limits on federal power that the framers deliberately rejected after experience with a range of ills that many believed flowed from a federal government too weak to check the excesses of the states.

Abbott’s Restoration Amendment VII evidently seeks an imagined return to the rule specified in the darling of states’ righters, the Tenth Amendment.  That provision of our Constitution says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  In the abstract, this provision might be one way of expressing the view that the federal government is limited to exercising powers expressly granted it by the Constitution.

But “delegated” is not the same as “expressly delegated,” and the difference is intentional.  The  first substantive provision of the Articles of Confederation that governed the U.S. prior to adoption of the Constitution did contain the limitation Abbott wants:  “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” (my emphasis)  The framers of our governing document omitted any such restriction on federal power. 

Wanting a government that would be able to govern effectively, the framers instead chose to cover their bases by ensuring that the government could exercise reasonably implied powers.  After enumerating a wide range of authority that Congress enjoyed under Article I, the Constitution included a “sweeping clause” specifying that Congress would also have power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  This “Necessary and Proper Clause,” as it is most commonly known today, expressly affirms the rejection of an “express delegation” limit on federal power.

The Tenth Amendment of our actual Constitution was added afterward, following calls in the state conventions that ratified our Constitution to add a bill of rights.  When Madison drafted the Tenth Amendment, he consciously omitted the “expressly delegated” formulation proposed by some members of Congress.  Not every power could or should be enumerated in a constitution, he argued, as did Alexander Hamilton, who had defended the Constitution’s Necessary and Proper Clause in No. 44 of the Federalist Papers, a series of 85 essays defending the proposed Constitution, of which Hamilton wrote fifty-one, as Lin-Manuel Miranda tells or reminds us.

So, the Tenth Amendment and our Constitution more general do not deny the federal government powers just because they happen not to be expressly delegated.  It adopts a broad, flexible vision of federal power that has generally governed ever since.  That vision animated then our first Secretary of the Treasury Alexander Hamilton’s proposal for the first Bank of the United States, a proposal that was adopted by Congress and signed into law by President George Washington despite the opposition of state authority champions such as then Secretary of State Thomas Jefferson.  The breadth and flexibility of these powers have largely served the U.S. well down to the present day, so Abbott’s proposal to cut them back should be rejected on the merits, regardless of its untruthfulness as a description of the real Constitution of the United States.

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