The Choice between Madison and FDR
Barnett, Randy E., Harvard Journal of Law & Public Policy
This exchange is about three clauses that have often been used by the courts since the New Deal to expand federal power: the Commerce Clause, the Necessary and Proper Clause, and the Taxation Clause, from which the spending power has (at least until today) been construed. This Essay addresses the originalist interpretation of the Necessary and Proper Clause.
Now, because I have not studied the matter closely, I am not going to comment on the spending power. I have always been attracted, though, to Madison's view that there is no freestanding spending power, but only a power to spend what is necessary and properly incident to the enumerated powers. Madison did not believe that the spending power grew out of the taxation power, but instead that all exercises of the spending power had to be incident to the other enumerated powers. (1) I am not, however, going to make the argument for this position here.
Nor am I going to spend much time discussing the original meaning of the Commerce Clause. In my book, Restoring the Lost Constitution, (2) I identified every use of the word "commerce" in the Constitutional Convention, the ratification debates, and the Federalist Papers. (3) In a separate study, I examined the over 1,500 times the word "commerce" appeared in the Philadelphia Gazette between 1728 and 1800. (4) In all of these appearances of the word "commerce," I could not find one dear example where the term was used to apply more broadly than the meaning identified by Justice Thomas in his concurring opinion in Lopez, (5) in which he maintained that the word "commerce" refers to the trade and exchange of goods, along with the process of trading and exchanging, including transportation. (6)
The January 13, 1790 issue of the Pennsylvania Gazette included a representative use of the word "commerce" at the Founding:
Agriculture, manufacturers and commerce are acknowledged to be the three great sources of wealth in any state. By the first [agriculture] we are to understand not only tillage, but whatever regards the improvement of the earth; as the breeding of cattle, the raising of trees, plants and all vegetables that may contribute to the real use of man; the opening and working of mines, whether of metals, stones, or mineral drugs.... By the second [manufacturers], all the arts, manual and mechanic; ... by the third [commerce], the whole extent of navigation with foreign countries. (7)
So this is how one source distinguished agriculture, manufacturing, and commerce; a very common trilogy that was repeatedly invoked.
For an originalist, direct evidence of the actual use of a word is the most important source of the word's meaning. It is more important than referring to the "broader context." Appealing to the "larger context" or the "underlying principles" of the text is the means by which some today are able to turn the words "black" into "white" and "up" into "down."
Now, it may come as some surprise to you to learn that even the New Deal Supreme Court never formally broadened the meaning of the term "commerce" in any of its cases. Instead, it relied on an expanded interpretation of the Necessary and Proper Clause to enlarge the powers of the national government. The New Deal Supreme Court never redefined the word "commerce." There is no case in which it said, "oh no, commerce means more today than it used to mean." Instead the Court expanded the use of the Necessary and Proper Clause to reach activity that it admitted was not commerce but which it was necessary and proper to reach anyway. (8)
Thus, this Essay focuses on the Necessary and Proper Clause. Now, unfortunately, because the Necessary and Proper Clause uses a term of art, you cannot find its original meaning by examining how the word "necessary" or the word "proper" was commonly used, the way you can when you are looking for a term like "commerce." You really do need to examine the context in which this phrase was introduced into the Constitution, and how it was explained to the public when it was criticized by the Anti-Federalists as conveying the kind of sweeping and unlimited powers to Congress that Professor Michael Paulsen has claimed for it, (9) and that Justice Scalia described in his concurring opinion in Raich. …