Introduction
The story of the Articles of Confederation is well known. Simply put, they didn’t work.
Not only was there no provision for a chief executive, trade barriers erected by some states against others threatened to kill the new nation in its cradle.
The Constitution of the United States of America was designed to fix those problems, and others, by creating a federal union.
The preamble states the Constitution’s goal as being to “form a more perfect Union.”[i]
Article I provides that there shall be state-based elections for members of the federal congress, that “The Congress shall have Power To . . . regulate Commerce . . . among the several States,”[ii] and “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 [federal] Government of the United States, or in any Department or Officer thereof.”
Article II provides for state-appointed electors to choose the president and vice president of the United States.
Article IV provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State,” that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” that alleged criminals can be extradited from one state to another, that new states may be admitted “into this Union,” and that “The United States [the federal government] shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and . . . domestic violence.”
Article V provides for state participation in amendment of the federal Constitution.
Article VI provides that “This Constitution, and the Laws of the United States [the federal government] which shall be made in Pursuance thereof; and all Treaties . . . shall be the supreme Law of the Land[iii]; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Article VII provides for state ratification of the federal Constitution.
And lest there have been any question that the new nation was a federal republic consisting of a national government made up of constituent states, each of which possessed its own powers, the Tenth Amendment provides that “The powers not delegated to the United States [the federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”
What are we to make of all these provisions?
As I wrote in The Supreme Court Opinions of Clarence Thomas (1991 – 2006): A Conservative's Perspective:
The Constitution of the United (i.e., combined into one federal
Union) States expressly affirms the existence of reserved powers
in the states and in the people respectively. Just as the first nine
amendments are an assurance that individual rights were to be
protected from the newly formed federal government, the Tenth
Amendment is a guarantee that states and their citizens will retain
their powers as against the national government . . . —except as to
powers expressly granted in the Constitution to the federal
government, or expressly denied to the states.[iv]
Federalism matters.
Former Attorney General Edwin Meese III has written that “[t]he institutional design [of the Constitution] was to divide sovereignty between two different levels of political entities, the nation and the states. This would prevent an unhealthy concentration of power in a single government. It would provide, as Madison said in The Federalist No. 51, a ‘double security . . . to the rights of the people.’ Federalism, along with separation of powers, the Framers thought, would be the basic principled matrix of American constitutional liberty. ‘The different governments,’ Madison concluded, ‘will controul each other; at the same time that each will be controlled by itself’.”
Let’s see what happened.
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[ii] Emphasis added. All emphases of the word “state” in quotations from the Constitution of the United States have been added.
[iv] An example of a power expressly denied to the states is Art, I, Sec. 10, Par. 1, which provides that “No state shall . . . pass any Bill of Attainder, ex post facto law, or Law impairing the Obligation of Contracts . . . .” One of the “Fifty Worst Cases,” discussed in Chapter 18, involves a state impairment of contract.
M'Culloch v. Maryland[i]:
The Necessary and Proper Clause and the Jefferson-Hamilton Duel
It is believed by some constitutional law scholars that the most important opinion of the scores written by John Marshall during his more than thirty years as Chief Justice was M'Culloch v. Maryland,[ii] the first case to rule on the meaning of the Necessary and Proper Clause.
At the Constitutional Convention of 1787, the delegates were faced with the task of providing the government-to-be with specifically enumerated delegated powers. As to those of Congress, Article I, Section 8, lists dozens. For example, Clause 8 delegates to Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
All well and good, but how was Congress supposed to accomplish that? Indeed, how was Congress supposed to organize the new government and implement the many tasks delegated to it?
The question was of crucial importance because under the earlier, no longer acceptable, Articles of Confederation, it had been provided that “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.”[iii]
The Convention’s Committee on Detail considered the question. One idea was simply to vest Congress with the power to “organize the government.” Another was what became the Necessary and Proper Clause. Congress was empowered:
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 [federal] Government of the United States, or in any Department or Officer thereof.
These 39 words made a lot of people very unhappy. They still do.
In the heated controversy over ratification of the Constitution, there was vociferous opposition to the clause, mainly because it was seen as negating the principle of enumerated powers which conceptually underlay the Constitution generally and Article I, Section 8 in particular.[iv]
Certainly, the Necessary and Proper Clause was needed to enable the new government to get itself organized. That’s why among the first things the first Congress did was to establish the structure and staffing of the federal judicial system.
There were those Federalists, however, who read the Necessary and Proper Clause much more broadly, among them co-author of the pro-ratification essays called The Federalist, Alexander Hamilton.
Accordingly, as Secretary of the Treasury, in 1790 Hamilton lobbied Congress to charter a national bank, concededly not an enumerated power of Congress under Article I, Section 8, of the Constitution, nor indisputably a “let’s get organized” power such as building post offices. Hamilton wanted the bank for the purpose of dealing with the nation’s monetary and economic systems.[v]
Hamilton prevailed, the bank was chartered, but its charter lapsed about twenty years later and was not renewed.
However, in 1816 Congress chartered a second Bank of the United States, it established branches in several states, and thus the groundwork was laid for one of the fifty worst Supreme Court decisions, M'Culloch v. Maryland.
In 1818, the State of Maryland enacted a law that taxed the notes of all banks that were not chartered by the state—i.e., the second Bank of the United States. The Maryland branch refused to pay the tax, the state sued, and eventually the case ended up in the Supreme Court of the United States.
Ostensibly about the tax, the threshold issue for the Court was actually whether the legislation creating the bank was constitutional. That in turn depended on whether, under Article I, Section 8, of the Constitution Congress possessed the power to charter the bank. Indeed, the second paragraph of Chief Justice Marshall’s opinion begins: “The first question made in the cause is--has congress power to incorporate a bank?
Marshall began his opinion by noting that there was a legislative precedent for the bank—the first Bank of the United States—though of course that said nothing about the constitutionality of the second bank. Next, after some irrelevant musings about the Constitution’s origins, Marshall stated that everyone agreed the government is “one of enumerated powers.” If a reader was unaware that Marshall believed in a strong central government, it might have seemed that the bank legislation was on its way to being held unconstitutional. But that was not to be.
After considerable discursiveness, Marshall finally got to the Necessary and Proper Clause which, after all, was what the case was really about. Focusing on the word “necessary,” Marshall opined that:
If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. * * * The word ‘necessary’ . . . has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases. [vi]
Marshall followed this linguistic analysis with a bit of mind reading, attributing to the Framers an intent to provide in the Necessary and Proper Clause a roaming commission in Congress to legislate on virtually any subject it chose. Although paying lip service to the principle that “the powers of the government are limited, and that its limits are not to be transcended,” Marshall issued one statement that more than any other synthesized his views of the Necessary and Proper Clause:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.[vii]
There is much to criticize in John Marshall’s opinion for the Court in M'Culloch v. Maryland: His overt allegiance to federalist principles, his rambling detours into constitutional history, his use of non sequiturs, his begging the question, his tortured linguistic parsing of “necessary,” his failure to satisfactorily come to grips with the Clause’s other requirement, “proper.” But the worst aspect of M'Culloch is Marshall’s slick reversal of the Necessary and Proper Clause’s meaning.
Article I, Section 8, contains the bulk of Congress’s delegated, limited powers. The Necessary and Proper Clause allows Congress to implement those powers. Yet—in construing what he might have more appropriately called the “Convenient, or Useful, or Essential to Another” Clause—Marshall turned the tables. No longer was the scope of Congress’s power what was expressly delegated to Congress in Article I, Section 8—via the people, to their states, to the national government. Now, the virtually, if not actually, unlimited scope of that power was to be whatever was “not prohibited” to Congress.
And what does the Constitution expressly prohibit to Congress?
Importation of slaves, and a tax on them more than $10 each. Enactment of bills of attainder and ex post facto laws. Certain kinds of capitation, direct, and export taxes. Port preferences and withdrawal of money from the treasury without appropriate legislative approval. And the granting of titles of nobility.[viii]
Thanks to Marshall’s McCulloch opinion in 1819, virtually every conceivable subject has been grist for Congress’s interstate commerce mill—with severe consequences for both republican institutions and individual rights.
As we shall see, other of "the fifty of the worst decisions of the Supreme Court" have relied heavily on M'Culloch to justify their approval of close to unlimited Congressional power—especially under the Interstate Commerce Clause.
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[i] 4 Wheaton 316 (1819). This citation refers to the fourth volume of the Supreme Court reports edited by a gentleman named Wheaton. The number following his name refers to the page on which the case begins. Later in the eighteenth century, the official reports of the decisions of the Supreme Court of the United States became designated “U.S.” For example, 310 U.S. 220. The date in parenthesis refers to the year the case was decided. More modern cases contain a “S.Ct.” reference identifying an unofficial edition of Supreme Court opinions published by West Publishing Company. As with the official United States Reports, the first number refers to the volume, and the second to the page. A few citations in this book lack a “U.S.” reference because when this book was published the official report of the case was not yet available.
[ii] See, for example, Nowak and Rotunda, Constitutional Law (seventh edition) 9, (henceforth, “Nowak and Rotunda”) citing “James Bradley Thayer, John Marshall, at 68 (1901) as reprinted in Thayer, Holmes & Frankfurter, John Marshall (1967, Philip Kurland ed.); Felix Frankfurter, John Marshall and the Judicial Function, 69 Harv.L.Rev. 217, 219 (1955).”
[iii] Emphasis added. In arguing for ratification of the Constitution, James Madison noted in Federalist No. 44 that the term, and the idea of, “expressly” was too constraining on a legislative body.
[iv] Referring to federal supremacy and the Necessary and Proper Clause, Hamilton declaimed that “These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane . . . .”(Alexander Hamilton, Federalist No. 33.)
[v] Hamilton’s bill passed Congress on February 8, 1791, but President Washington had reservations about its constitutionality. He asked Hamilton, Jefferson, and Randolph to provide written opinions. Hamilton, of course, was for the bank. Jefferson was opposed, as was Randolph.
Predictably, Hamilton argued that “every power vested in a government is in its nature sovereign, and includes, by force of the term a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral or not contrary to the essential ends of political society. . . .” ( Emphasis in original.) (Henry Steele Commager, Documents of American History, 156.)
Jefferson’s opposition is essentialized in this passage from his opinion: “I consider the foundation of the Constitution as laid on this ground—that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people . . . . To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.” (Emphasis in original.) (Henry Steele Commager, Documents of American History, 156.)
159.)
[viii] Article I, Section 9.
Gibbons v. Ogden[i]:
The Interstate Commerce Clause and Robert Fulton’s Steamboat
Some scholars believe that today John Marshall’s opinion in Gibbons ranks as one of the most important in history because the Court’s decision laid the basis for later Supreme Court Justices to allow federal power to deal with national social and economic problems.”[ii]
Others believe that in making expansive use of the Interstate Commerce Clause, Congress, abetted by the Supreme Court, has often gone far beyond the intent of the Founders and, in the process, dealt a severe blow to the core constitutional principle of federalism.[iii] That is my position.
Long before the days of computers and household names like Bill Gates, American schoolchildren learned about earlier heroes of technology and business like Robert Fulton and his steamboat. What is much less known, however, is that Fulton was involved in a Supreme Court case that profoundly affected the federalism balance that had been so carefully crafted by the Founders.
To encourage investment in and development of steamboat technology, which would be a boon to commerce, the New York State Legislature in the early 1800s granted a monopoly to operate those vessels in the state’s waters. The recipients of that exclusive right were Robert Livingston and Robert Fulton.
In turn, Livingston and Fulton granted a license to one Aaron Ogden, allowing him to run a ferry across the Hudson River between New York and New Jersey.
So far so good, and no need for either Congress or the Supreme Court to be involved. Not yet, at least.
However, a federal law that had been enacted in 1793[iv] provided for licensing of “vessels to be employed in the coasting trade,” and pursuant to that law one Thomas Gibbons (a former partner of Ogden) started a steamboat service in competition with Ogden’s.
So Ogden went to court in New York and obtained an injunction prohibiting Gibbons from operating his ferries in New York waters.
The case eventually reached John Marshall’s Supreme Court, where the ostensible question was whether the federal “coastal trading” law trumped the New York statute granting the monopoly to Livingston and Fulton.
Actually, the more fundamental question was whether, under the Constitution’s Interstate Commerce Clause, Congress possessed the power to legislate on the subject of steamboat service between two states—to regulate, as commerce, what was in reality navigation.
In light of Marshall’s opinion five years earlier in M'Culloch v. Maryland, the outcome in Gibbons was not hard to predict. Once again, the Chief Justice acknowledged that the Constitution “contains an enumeration of powers expressly granted by the people to their government,” and that there were some who argued “that these powers should be construed strictly.” Although Marshall coyly asked “why ought they to be so construed,” his question was rhetorical and by the end of his Gibbons opinion the Chief Justice had gotten where he wanted to be.
Marshall began by noting that since nothing in the Constitution's text required “strict construction,” the Interstate Commerce Clause should be
construed in accordance with “the objects for which it was given.” Said Marshall,
The subject to be regulated is commerce; and [to] ascertain the
extent of the power, it becomes necessary to settle the meaning of
the word. The counsel for [Ogden] would limit it to traffic, to
buying and selling, or the interchange of commodities, and do not
admit that it comprehends navigation. * * * Commerce,
undoubtedly, is traffic, but it is something more—it is intercourse.[v]
Not content with such a broad reading of a clause that expressly granted Congress the power to regulate only interstate commerce, Marshall added that Congress’s commerce power is:
the power to regulate; that is, to prescribe the rule by which
commerce is to be governed. This power, like all others vested
in congress, is complete in itself, may be exercised to its utmost
extent, and acknowledges no limitations, other than are
prescribed in the constitution.[vi]
In other words, just as Marshall had done in M'Culloch with his “not prohibited” reading of the Necessary and Proper Clause, Marshall turned upside down the Founders’ express delegation of the power to regulate only “commerce.”.
Apparently, in Marshalls view, under the Interstate Commerce Clause Congress could regulate anything except what the Constitution expressly said the federal legislature could not regulate.
The Harvard Law School professor and later Associate Justice of the Supreme Court, Felix Frankfurter, wrote of Marshall’s opinion in Gibbons that the Chief Justice:
not merely rejected the Tenth Amendment as an active principle
of limitation; he countered with his famous characterization of the
powers of Congress, and of the commerce power in particular, as
the possession of the unqualified authority of a unitary sovereign.
He threw the full weight of his authority against the idea that, apart
from specific restrictions in the Constitution, the very existence of
the states operates as such a limitation. . . . [vii]
Perhaps as a sop to those who believed the Tenth Amendment had been inserted into the Bill of Rights for a good reason, Marshall, according to two eminent constitutional law scholars:
did state that some “internal” commerce of a state would be beyond the power of Congress to regulate.[viii] According to Marshall’s opinion for the Court, the only commercial activities that were immune from federal power, and reserved for state or local regulation, were those “which are completely within a State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.” Marshall thus described the “internal
commerce of a state” as beyond the reach of federal power but
simultaneously created a standard under which few commercial
activities could be found to meet the definition of internal
commerce.”[ix]
The federal juggernaut had begun to roll.
Indeed, as we shall see, even non-commercial commerce—even intrastate commerce— would eventually become subject to the exercise of federal legislative power.
[i] 22 U.S. (9 Wheat.) 1 (1824).
[ii] Nowak and Rotunda, 165-66.
[iii] See, for example, United States v. Dewitt, 76U.S. (Wall.) 41 (1870).
[vii] Nowak and Rotunda, 166.
[ix] Nowak and Rotunda, 166.
Wickard v. Filburn[i]:
Intra-state commerce and Home Grown Wheat
The Supreme Court’s opinion in this case could just as easily have been written by John Marshall rather than by Justice Robert Jackson. In a sense it was, because Jackson’s opinion in Wickard rests squarely on Marshall’s in M'Culloch v. Maryland and Gibbons v. Ogden.
Wickard v. Filburn had its genesis in FDR’s “New Deal” legislation. In 1938, the Agriculture Adjustment Act was passed. One reason for its enactment was to avoid certain food surpluses and shortages through government control of the amount of production, and thus to support the price of farm commodities—an anti-free market, command economy scheme par excellence.
Every year, the federal bureaucrats used their crystal balls to determine how much wheat would be needed the next year. They then set production quotas.
Filburn was a small Ohio dairy and poultry farmer who also raised a small amount of winter wheat. Some he sold locally, some he fed to his own animals, some he milled into flour for his own consumption, and the rest he kept for the following year’s seeding on his own land.
In 1940, based on the act, its regulations, and what the clairvoyant bureaucrats predicted, the government told Filburn that his 1941 wheat crop could occupy no more than eleven acres, with a harvest yield of no more than about twenty bushels per acre.
Recklessly throwing caution to the wind and willing to risk violating federal law, Filburn sowed and harvested an extra twelve acres. When the government assessed a penalty for his “farm marketing excess,” he sued.
Eventually, the case reached the Supreme Court where Filburn argued, essentially, that the wheat marketing quota provisions of the Act were unconstitutional because they didn’t constitute regulation of interstate commerce.
Filburn conceded that Article I, Section 8, of the federal Constitution vested Congress with the power to regulate interstate commerce, and that recently the Court had upheld a federal statute regulating the local production of goods simply because later they would enter the stream of interstate commerce.
But, he argued, the Agricultural Adjustment Act was quite different. It went beyond other federal laws, extending the reach of the federal Interstate Commerce Clause power to local farm production intended wholly for local consumption, in no way later intended for interstate commerce.
Filburn wanted to know how Congress could regulate wheat which would never leave his farm. A fair question. One that might have given even the great John Marshall pause. But Justice Jackson was up to the task.
Although in Jackson’s opinion for the Court he expressly acknowledged that the Agriculture Adjustment Act “extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm,”[ii] his concession failed to help farmer Filburn.
The core of Jackson’s opinion began by acknowledging that Filburn claimed the wheat quota:
is a regulation of production and consumption of wheat. Such activities are, he urges, beyond the reach of Congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most “indirect.” In answer [said Jackson] the Government argues that the statute regulates neither production nor consumption, but only marketing; and, in the alternative, that if the Act does go beyond the regulation of marketing it is sustainable as a “necessary and proper” implementation of the power of Congress over interstate commerce.
Although Filburn’s “production and consumption” argument was not one to be taken lightly, instead of confronting it Jackson simply dismissed the contention. “We believe,” Jackson wrote, “that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.”
Beware! Once the Supreme Court says explicitly that cases are “not to be decided by reference to any formula,” and implies that the objective meaning of words must yield to “actual effects,” it’s obvious that the justices are going to extend the law. And that’s exactly where Jackson was going.
As a predicate, Jackson observed that:
[t]he wheat industry has been a problem industry for some years. Largely as a result of increased foreign production and import restrictions, annual exports of wheat and flour from the United States during the ten-year period ending in 1940 averaged less than 10 per cent of total production, while during the 1920's they averaged more than 25 per cent. The decline in the export trade has left a large surplus in production which in connection with an abnormally large supply of wheat and other grains in recent years caused congestion in a number of markets; tied up railroad cars; and caused elevators in some instances to turn away grains, and railroads to institute embargoes to prevent further congestion.
Many countries, both importing and exporting, have sought to modify the impact of the world market conditions on their own economy. Importing countries have taken measures to stimulate production and self-sufficiency. The four large exporting countries of Argentina, Australia, Canada, and the United States have all undertaken various programs for the relief of growers. Such measures have been designed in part at least to protect the domestic price received by producers. Such plans have generally evolved towards control by the central government.[iii]
Even though the cat was now out of the bag as to the purpose of the quotas, and even though Marshall in Gibbons had provided plenty of latitude for the commerce part of the Interstate Commerce Clause, still, Jackson had to find an interstate peg to hang the wheat quotas on. Necessity, once again, proved to be the mother of invention. Jackson wrote:
One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions.[iv]
An Associate Justice of the Supreme Court of the United States was claiming that home-grown, home-consumed wheat, never moving off Filburn’s farm, let alone beyond the State of Ohio, would not merely have an “influence on price and market conditions,” but a “substantial” one.
In what way?
Here was Jackson’s explanation, no less for a unanimous Supreme Court:
This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon.
There is so much revealed in these four sentences, that emphasizing certain individual words and phrases is inadequate to explain all of it. To begin with, by Filburn’s wheat “overhanging” the market Jackson meant that the farmer’s few paltry acres of the grain were part of the worldwide universe of wheat from such places as neighboring states, Canada, Ukraine, even Australia. By itself, this speculation was meaningless.
But Jackson built on it, with a string of yet more speculative “maybes.” With Filburn sitting on his drop-in-the bucket supply of home-grown wheat, prices maybe rise. Ignoring his own uses for the wheat, maybe Filburn is induced to sell it into the market. Maybe Filburn’s wheat “checks” price increases, but then maybe not.
