America's Unwritten Constitution: The Precedents and Principles We Live By (84 page)

27
  Professor Sanford Levinson has provocatively identified a nineteenth-century pattern in which Justice Brockholst Livingston participated “in circuit court litigation involving the New York steamboat monopoly even though his brother Robert Livingston was the holder of the monopoly in question”; Justice Levi Woodbury “once heard on circuit an important case in which a lawyer for one of the litigants was his son, Charles Woodbury”; Chief Justice Taney declined to recuse himself when his brother-in-law Francis Scott Key argued before his Court; and “David Dudley Field…argued three of the most important cases involving national power over the defeated Confederacy before a Court that included his brother, Stephen J. Field.” Sanford Levinson, Book Review,
Virginia LR
75 (1989): 1429, 1439–1440. And of course, in
Marbury v. Madison
, 5 U.S. (1 Cranch) 137 (1803), a case brought before the justices as trial judges, John Marshall declined to
recuse himself even though the case required the Court to consider a sworn affidavit submitted by his brother James concerning certain facts at the heart of the litigation. (In addition, John Marshall himself had firsthand knowledge, as a witness, of various issues of adjudicative fact that needed to be decided in Marbury’s lawsuit, which implicated Marshall’s own prior personal conduct, as secretary of state, in ensuring that various commissions were properly affixed with the Great Seal of the United States.) Let’s also recall that Senator David Patterson, Andrew Johnson’s son-in-law, sat in Johnson’s impeachment trial—a fact highlighted by supporters of Senator Wade’s right to sit. See
Trial of Andrew Johnson
, 3:360–361 (Sens. Sherman and Howard), 381–582 (Sen. Thayer). On Marshall’s involvement in
Martin
, see G. Edward White,
The Marshall Court and Cultural Change
, 1815–35 (1988), 165–173. For Associate Justice Joseph Story’s eyebrow-raising boast that Marshall “concurred in every word” of Story’s opinion for the Court in
Martin
, see Story to George Ticknor, Jan. 22, 1831, in William W. Story, ed.,
Life and Letters of Joseph Story
(1851; reprint 2000), 2:49.

28
  
Farrand’s Records
, 2:376 (Aug. 22, 1787). For criticism of the modern Court’s overly exuberant understanding of the ex-post-facto clause, see Akhil Reed Amar, “The Supreme Court, 1999 Term—Foreword: The Document and the Doctrine,”
Harvard LR
114 (2000): 26, 96–102.

29
  
Gonzales v. Raich
, 545 U.S. 1, 39 (2005) (Scalia, J., concurring).

30
  See Charles Black Jr.,
Structure and Relationship in Constitutional Law
(1969), 13–15.

31
  For a similar suggestion, see Bobbitt,
Constitutional Fate
, 75.

32
  
Annals
, 2:1946–1947 (Feb. 2, 1791).

33
  
Elliot’s Debates
, 2:468. For similar ratification-convention explanations of the necessary-and-proper clause as essentially declaratory, see ibid., 2:537–538 (McKean), 3:245–246 (George Nicholas), 441 (Pendleton), 455 (Madison); ibid., 4:141 (Maclaine). In the First Congress, Madison echoed his claims as Publius: “The clause is in fact merely declaratory of what would have resulted by
unavoidable implication
, as the appropriate…means of executing those [the other enumerated] powers. In this sense it has been explained by the friends of the Constitution, and ratified by the State Conventions.”
Annals
, 2:1947 (Feb. 2, 1791) (emphasis added). Earlier in the First Congress, Madison had opposed a proposal to add to what eventually became the Tenth Amendment a rule that the federal government could wield only powers “expressly” provided for in the written Constitution. Madison argued that “it was impossible to confine a Government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutia.” Ibid., 1:790 (Aug. 18, 1789). Note that in addition to adding clarity to the issue of federal power vis-à-vis the states, the necessary-and-proper clause also gave Congress certain powers to regulate the federal executive and judicial branches. See Amar,
ACAB
, 110–112.

34
  See Amar,
Bill of Rights
, 25 n.
^*
, 28, 36, 147–149, 223–224, 322 n. 44, 326 n. 78. Later in this chapter and in the next chapter, we shall revisit and deepen the argument for viewing freedom of speech as a basic (albeit unwritten) feature of America’s Constitution even before the textual enumeration of this freedom in the First Amendment.

35
  
Washington v. United States
, 460 U.S. 536, 547 (1983) (Blackmun, J., dissenting) (citation omitted).

36
  A critic of Marshall might complain about his selective deployment of the Articles of Confederation. At one point, Marshall underscored the fact that the Constitution omitted the restrictive language found at the outset of the Articles, and that Americans had again avoided this language when adopting the Tenth Amendment. Yet later, he made no comparably direct reference to the fact that the Constitution was less explicit than the Articles had been on the impermissibility of state taxation of federal property. Why, a cynic might ask, did Marshall highlight the textual differences between these two documents only when the difference favored the federal government? The noncynical answer is that in ratifying the Constitution and later adding the Tenth Amendment, Americans did indeed consciously reject the phraseology of, and the ultra-states’-rights principles underlying, the Articles of Confederation. See, e.g.,
Federalist
Nos. 33, 44. There is no comparable evidence that leading Federalists in 1787–1788 said that the Constitution had eliminated the Articles of Confederation’s Article IV, paragraph 1, language in order to give states more power and federal property less immunity. No major figure at Philadelphia or in the ratifying conventions ever urged Americans to vote for the Constitution because it would allow states more freedom to tax the central government. The methodological lesson here is that in construing the written text of the Constitution, we must be ever mindful of the unwritten historical context and understandings that gave birth to that text.

37
  The Declaration specifically excoriated George III and Parliament for “imposing Taxes on us without our Consent.” Long-standing case law under the so-called “dormant commerce clause” builds on the Declaration and
McCulloch
in ways that the doctrine’s critics have failed to appreciate. Led by Justices Scalia and Thomas, these critics have stressed that this line of cases lacks strong support in the Constitution’s text. Article I explicitly authorizes Congress to regulate “Commerce…among the several States.” Yet even when Congress has not legislated—when Congress has been dormant—the Court has construed the clause as impliedly prohibiting states from passing laws discriminating against businesses located in sister states and/or improperly burdening the free flow of interstate commercial transactions. One root idea—a Declaration/
McCulloch
-style idea—is that a state may not properly impose certain costs on unrepresented out-of-staters. If the Court invalidates a state’s actions under the so-called dormant commerce clause, Congress remains free to bless what the state has done, because all states are represented in Congress. (Similarly, Congress under
McCulloch
was free to allow states to tax a federal bank, had Congress so chosen.) Structurally, there is an obvious need for some federal institution to regularly monitor parochial, protectionistic, discriminatory, burdensome, and/or mutually inconsistent state regulations that threaten an integrated national economy. Congress may not be well suited to be the first line of defense against the myriad and fact-specific threats to this economy posed by an almost infinite number of possible state and local laws. If Justices Scalia and Thomas were ever to persuade their colleagues to abandon the dormant-commerce-clause field, it seems likely that Congress
would immediately pass a loosely worded framework statute inviting the courts back in to keep doing pretty much what they have been doing. Put another way, Congress today legislates against the backdrop of rules generated by the Court’s dormant-commerce-clause doctrine and appears by its actions and inactions over many decades to have embraced the federal judiciary as its partner in keeping states under control. Thus, current dormant-commerce-clause doctrine is a proper part of America’s unwritten Constitution—indeed, quadruply so, with deep roots in this chapter’s implicit-Constitution approach, in proper precedential principles as outlined in Chapter 5, in the iconic Declaration featured in Chapter 6, and in actual institutional practice of the sort highlighted in Chapter 9.

38
  Act to Prevent Circulation of Seditious Publications, N.C. Rev. Code, ch. 34, 16 (1854) (revising 1830 N.C. Sess. Laws, ch. 5, at 10–11); 1860 N.C. Sess. Laws, ch. 23, at 39 (1860). See, generally, Michael Kent Curtis, “The 1859 Crisis over Hinton Helper’s Book,
The Impending Crisis
: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment,”
Chicago-Kent LR
68 (1993): 1113.

39
  Here, as elsewhere, I am indebted to Black,
Structure and Relationship
. Black himself graciously credited the seminal work of Alexander Meiklejohn in
Free Speech and Its Relation to Self-Government
(1948).

40
  The legal maxim of interpretation at issue here is known to lawyers as
expressio unius est exclusio alterius:
The expression of one thing is the exclusion of other things. Thus, when the law says “A, B, and C,” this maxim suggests that the law should be read to mean
only
”A, B, and C” and nothing else. Sometimes
expressio unius
is a sound textual inference; sometimes not. Whether this inference makes good constitutional sense in any given constitutional situation will depend, among other things, on the document as a whole, on its larger structures and purposes, and on how the clause in question was understood by Americans when they framed and ratified it. In other words, any claim that a given constitutional clause contains a negatively implied “only” is
itself an
argument within the general framework of America’s implicit Constitution and should be analyzed by reference to the general criteria that this chapter seeks to bring to light. For Marshall’s repeated rejection of
expressio unius
arguments in
McCulloch
, see, e.g., 17 U.S. at 416–417, 425–426, 427.

41
  Although the Fourteenth Amendment was designed to affirm free speech and free press rights—and many other rights—against states, and was so understood by its ratifiers, that amendment was still waiting to be born in 1858.

42
  Thus, the first Congress provided its members with newspapers at public expense and openly justified this measure as properly promoting a free press. Even as a joint House-Senate Committee (unsuccessfully) proposed reducing this subsidy to economize on public expenses, the Committee acknowledged that “the publication of newspapers [was] highly beneficial in disseminating useful information throughout the United States, and deserving of public encouragement.”
Annals
, 1:427 (May 28, 1789). See, generally, David P. Currie,
The Constitution in Congress: The Federalist Period
(1997), 73 n. 137.

43
  But see
Hutchinson v. Proxmire
, 443 U.S. 111 (1979). This case is powerfully critiqued in
Josh Chafetz,
Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions
(2007), 103–104.

44
  In a similar vein, Justice Story suggested that the petition and assembly rights “would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature of its structure and institutions.” Story,
Commentaries
, 3:745, sec. 1887.

45
  As American history actually unfolded, of course, North Carolina’s government purported to join the Confederacy in late May 1861, after serious hostilities had commenced in mid-April. Presumably nothing prevented North Carolina in March or early April from claiming its full rights as a state in good standing under the U.S. Constitution. And presumably there were at least some proslavery fanatics in the Tar Heel State who might have been willing to swear out all manner of charges against Lincoln, if given the chance.

46
  On the importance of institutional muscle, as opposed to textual declarations—“parchment barriers”—see, e.g.,
Federalist
Nos. 48, 51 (Madison).

47
  
Spalding v. Vilas
, 161 U.S. 483, 495 (1896) (quoting
Scott v. Stansfield
, 3 L.R. Exch. 220, 223 [1868]). The Court has not had occasion to consider whether the implicit constitutional immunity from state defamation law that federal judges enjoy might be subject to abrogation by Congress. Note that when
the judiciary
pronounces the existence of certain
judicial
immunities, this pronouncement might itself seem to be in tension with the
nemo judex
principle, but might nevertheless be valid in light of the rule of necessity: If the central idea of a properly impartial judge—an idea tightly intertwined with the
nemo judex
principle—entails broad judicial freedom of speech and independence from libel law within the courtroom itself, then the seeming conflict of interest visible whenever a judge pronounces the existence of this judicial freedom/independence/immunity would not be unique to the specific judge in this particular case, but would be true of all judges in all cases, and thus permissible under one sensible understanding of the rule of necessity.

48
  On Burr, see
New-York Evening Post, Feb
. 6, 1805, 3 (quoting “The World Upside Down,”
Trenton Federalist
, Feb. 4, 1805, 3 [quoting
New-England Palladium
, Jan. 15, 1805, 1]).