Judges as Rulers

Over at Crooked Timber, Henry Farrell links to an essay by Norm Ornstein, a resident scholar at AEI. Ornstein, complaining that Alito shows insufficient deference to Congress, presents an intriguing new theory of Constitutional jurisprudence:

[John Roberts] understands that Congress is the branch the framers set up in Article I, Section 1 of the Constitution. It is not coincidence that Article 1 is twice as long as Article II, which created the executive branch, and almost four times as long as Article III, which established the judiciary. Judges should bend over doubly and triply backward before overturning a Congressional statute, especially if it is clear that Congress acted carefully and deliberatively.

Apparently Dr. Ornstein is dissatisfied with my suggestion and would prefer that Bush had instead nominated a measuring tape to the Supreme Court.

Let's put aside for a moment the fact that of the ten sections in Article I, only Section 8 deals with the powers vested in Congress, and that there are two sections (9 and 10) which constrain the powers of Congress. Because Ornstein's logic isn't simply wrong---it's perverse. Article I, Section 8 is long because the Framers, knowing well the dangers of discretionary power, did not dare to give Congress blanket power to enact any law it deemed wise. Instead, they granted narrow and specific powers to Congress, to ensure that it could pass any law the Framers believed necessary to protect the common interests of the several States---and no more.

A strict and honest reading of the Constitution would render unconstitutional most of what the Federal government does today---the war on drugs (at least those produced and consumed in state), Social Security and Medicare, many environmental regulations, and much more. However, these laws are generally upheld nowadays on the basis of broad and creative interpretations of two clauses in Article I, Section 8---the Interstate Commerce and General Welfare clauses---which state, respectively, that

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States


To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

That the narrow interpretation of the powers of Congress is the one intended by the Framers is a matter of public record. Prior to its ratification, opponents of the Constitution expressed concerns that the General Welfare Clause might be interpreted so broadly as to allow Congress to usurp any powers not specifically forbidden to it. James Madison, in Federalist 41, responded to the idea that anyone might interpret it in such a way with outright ridicule and a lecture on grammar:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.


Conversely, Article III is short is because the Judiciary is given blanket power to decide all cases arising under the Contsitution and under Federal law. It was not necessary to enumerate explicitly the powers of the Judiciary, because the Judiciary does not make law; it just decides cases arising under existing laws.

I do agree with Ornstein on one point: The Judiciary should exercise deference to Congress. But only to the extent that Congress exercises deference to the Constitution. When Congress repeatedly and unapologetically passes laws in open defiance of the Constitution, the Judiciary's first duty is to the latter, word counts be damned.

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More Words Means More

More Words Means More Government
Norm Ornstein has aopted a rather unique method of interpreting the Constitution: Apparently the framers wanted to give the most...

Excellent analysis of the

Excellent analysis of the relationship between congress/judiciary and their respective obligations to the constitution. It's all right there, you can find that in about 15 minutes of honest research. If you want to go further, as you did, read the Federalist Papers.

The great verbal pains that people go through, in order to twist the words of the constitution to fit their agenda never ceases to amaze me.
For example, the great pains one must go through to reach the conclusion that the Second Amendment was intended to provide for an Army... They stretch the language into something that resembles coherent interpretation, but that's where it stops. You can only reach that conclusion if you ignore the following plain language:

Art 1, sec 8-12 provides for the appropriation of funds, and the power to raise a formal army for the national defense for a period of not more than two years

Art 1, sec 8-15 permits congress to summon the militia as necessary for the common defense

That the clauses use the separate words "army" and "militia" clearly indicates a differentiation.

And the following:

Man has "rights," States are granted "powers." The Bill of Rights enumerates "rights" of the people and expressly limits the "powers" of the government. There can be no collective "rights" without first admitting an individual "right."

Berg: "James Madison, in

Berg: "James Madison, in Federalist 41, responded to the idea that anyone might interpret it in such a way with outright ridicule and a lecture on grammar [...]"

So antifederalists feared that the General Welfare clause would provide a fig leaf for the endless expansion of government power, and Madison ridiculed the notion.

Thank God J.M. put a stop to all that with a grammar lesson. How's that been working out for him lately, anyhow?

Thank God J.M. put a stop to

Thank God J.M. put a stop to all that with a grammar lesson. How’s that been working out for him lately, anyhow?

Obviously not very well. Hence the word "Whoops" linked to a federal budget overview. My point isn't that Madison shouldn't have fixed the wording to make it even more clear; it's that he, as the architect of the Constitution, regarded today's dominant interpretation of the General Welfare clause as so obviously wrong that his response to the idea that it could be taken that way was, to paraphrase, "Don't be so stupid." Ergo, that Congress was intended to have narrow, specific powers is historically incontrovertible.

Congressional power I'd been

Congressional power
I'd been meaning to comment on this post over at Catallarchy that I liked, but never developed a head of steam to get it done.  So I'll just link it and let you go read it for this James Madison quote:

Like, only a moron would think tha...