Limited Government, Unlimited Administration: Is it Possible to Restore Constitutionalism?
by Gary S. Lawson
January 27, 2009
When the
Constitution was sent to the states for ratification in 1787, many citizens
worried that the new national government proposed by the document was a
Leviathan in waiting. During the crucial New York ratification debate, James
Madison, writing as Publius, sought to allay these fears in the 45th Federalist
Paper by emphasizing that adoption of the Constitution would create a
government of enumerated, and therefore strictly limited, powers. Madison said:
"The powers delegated by the proposed Constitution to the federal
government are few and defined... [and] will be exercised principally on
external objects, as war, peace, negotiation, and foreign commerce...."[1] Federal tax collectors, Madison assured
everyone, "will be principally on the seacoast, and not very
numerous."[2] Exactly six months after
publication of this essay, New York became the 11th state to ratify the
Constitution.
Once the
national government was up and running, disputes naturally arose about the
proper scope of its "few and defined" powers and about the
proper institutional form for the exercise of those powers. It is helpful to
examine just a few of those early disputes to get a sense of the frontiers of
constitutional argument in the Founding era--that is, to gauge the kinds of
claims regarding federal power that generated serious discussion. Those
examples provide an interesting basis for comparison with modern law.
The Founders'
Constitutional Frontier
One of the most
contentious and long-running Founding-era controversies concerned, of all
things, Congress's enumerated power in Article I, section 8, clause 7 "to
establish Post Offices and post Roads." For more than half a century, some
of the country's most eminent legal minds, including Thomas Jefferson, James
Madison, James Monroe, and Joseph Story, vigorously debated whether this clause
gave Congress power to create new roads or merely to designate
existing, state-created roads as postal delivery routes. Jefferson and Monroe,
among others, staunchly maintained the latter, and the issue divided the
Supreme Court as late as 1845 before the matter was definitively settled in
favor of congressional power to create roads.[3]
I do not raise
this controversy in order to re-argue it--as an original matter, it requires
some very tricky intratextual analysis--but merely to illustrate the Founding
generation's idea of a cutting-edge constitutional debate.
The postal power
was also the locus for one of the earliest discussions of the so-called
nondelegation doctrine, which explores the limits, if any, on Congress's power
to vest broad discretion in executive or judicial actors. During the Second
Congress, in 1791, the House of Representatives debated a proposal to authorize
the carriage of mail "by such route as the President of the United
States shall, from time to time, cause to be established."[4] Several representatives objected strenuously
that the amendment, by granting the President unconstrained discretion to
determine postal routes, would unconstitutionally delegate legislative power.
Representative John Page of Virginia, for example, declared:
If the motion
before the committee succeeds, I shall make one which will save a deal of time and
money, by making a short session of it; for if this House can, with propriety,
leave the business of the post office to the President, it may leave to him any
other business of legislation; and I may move to adjourn and leave all the
objects of legislation to his sole consideration and direction.[5]
The amendment
was defeated, and the final legislation specifically designated the postal
routes town by town. The first postal route established, for example, was
described in the statute as follows:
From Wisscassett
in the district of Maine, to Savannah in Georgia, by the following route, to
wit: Portland, Portsmouth, Newburyport, Ipswich, Salem, Boston, Worcester,
Springfield, Hartford, Middletown, New Haven, Stratford, Fairfield, Norwalk,
Stamford, New York, Newark, Elizabethtown, Woodbridge, Brunswick, Princeton,
Trenton, Bristol, Philadelphia, Chester, Wilmington, Elkton, Charlestown, Havre
de Grace, Hartford, Baltimore, Bladensburg, Georgetown, Alexandria, Colchester,
Dumfries, Fredericksburg, Bowling Green, Hanover Court House, Richmond,
Petersburg, Halifax, Tarborough, Smithfield, Fayetteville, Newbridge over
Drowning creek, Cheraw Court House, Camden, Statesburg, Columbia, Cambridge and
Augusta; and from thence to Savannah....[6]
To be sure, one
cannot say definitively that Congress chose to specify the precise postal
routes solely or even primarily because of constitutional concerns; after all,
the power to designate a town as part of a postal route was the 18th century
version of an earmark.[7] But, again, this example
illustrates the kinds of questions that raised serious constitutional concerns
in the Founding era.
My final example
concerns a proposed federal bailout. On November 26, 1796, the city of
Savannah, Georgia, was devastated by a fire. Representatives introduced
legislation calling for federal aid to rebuild the city. In the course of
significant debate on the measure, Representative Nathaniel Macon from North
Carolina remarked that:
The sufferings
of the people of Savannah were doubtless very great; no one could help feeling
for them. But he wished gentlemen to put their finger upon that part of the
Constitution which gave that House power to afford them relief.... He felt for
the sufferers...but he felt as tenderly for the Constitution; he had examined
it, and it did not authorize any such grant.[8]
Representative
Andrew Moore of Virginia, among others, agreed: "[E]very individual
citizen could, if he pleased, show his individual humanity by subscribing to
their relief; but it was not Constitutional for them to afford relief from the
Treasury."[9]
Obviously, some
weightier and more famous constitutional issues than these arose in the
Founding era--matters such as the creation of a national bank and the terms of
removal for officers in the Department of Foreign Affairs--but the examples I
have described are not unrepresentative of the issues that generally filled up
constitutional discourse in the nation's early years. The vision of the
national government that James Madison's 45th Federalist Paper presented to the
citizens of New York on January 26, 1788, may not have fully prevailed in the
Founding era, but a lot of people took that vision very seriously.
What a
Difference a Day (Give or Take 220 Years) Makes
Now fast-forward
to October 3, 2008, when Congress enacted and the President signed the
Emergency Economic Stabilization Act of 2008. The Act appropriates at least
$250 billion--and perhaps as much as $750 billion--for the Secretary of the
Treasury to do...what? The seemingly interminable statute[10] contains highly detailed provisions regarding
various oversight boards, reporting requirements, and fast-track treatment for
future appropriations legislation; but with respect to its substantive
prescriptions, it is remarkably brief.
·
Section 101(a)(1) says that "[t]he [Treasury] Secretary is
authorized to purchase...troubled assets from any financial institution, on
such terms and conditions as are determined by the Secretary...."
·
"Troubled assets," in turn, are defined in section
3(9)(A) as "residential and commercial mortgages and any securities,
obligations or other instruments that are based on or related to such
mortgages, that in each case was originated or issued on or before March 14,
2008, the purchase of which the Secretary determines promotes financial market
stability."
·
In case there is any doubt about the Secretary's authority, section
101(c) clarifies that "[t]he Secretary is authorized to take such actions
as the Secretary deems necessary to carry out the authorities in this
Act...."
To be fair, the
Secretary's discretion under the law is not completely unlimited. The
Secretary must "prevent unjust enrichment of financial institutions,"
and in section 103, Congress specifically instructs the Secretary to "take
into consideration" nine different factors when purchasing troubled
assets, including such things as "protecting the interests of
taxpayers"; "providing stability and preventing disruption to
financial markets in order to limit the impact on the economy and protect
American jobs, savings, and retirement security"; "the need to help
families keep their homes"; "the need to ensure stability
for...counties and cities"; "protecting...retirement security"
(something evidently important enough to show up twice in the list); and
generally promoting any good thing and preventing any bad thing for any
relevant interest group that Congress could think to list.
It seems
doubtful that, with such vague congressional instructions, the Secretary and
his general counsel are going to spend very many long nights worrying about
constraints on their discretion.
While this law
obviously generated substantial discussion in Congress before its enactment, to
the best of my knowledge, no one in any position of power raised any
constitutional objections to the substantive provisions that I just described:
neither about the scope of congressional power to enter the mortgage market nor
about Congress's ability to delegate sweeping, effectively limitless discretion
to the Secretary. And under current governing legal doctrine, no such
objections would be even remotely plausible. Indeed, anyone who raised them
would be dismissed as a crank.
Obviously, there
is considerable distance between the constitutional discourse of 1788 and the
relevant conversations of 2008. What changed?
There are two
ways to approach that question. The first, and conceptually most
straightforward, approach is simply to describe changes in governing
constitutional doctrine, which requires describing the kind of government
permitted by the Constitution of 1788 and then comparing it to modern
institutions. Everyone knows, at some level, that modern government and the
Constitution are a poor fit, but it is not clear that everyone knows just how
wide a gap has emerged over two centuries. The second, and conceptually
trickier, approach is to try to understand why doctrine has moved so far
away from the constitutional design and to use that understanding to formulate
strategies for restoring the constitutional order.
I will start
with the description and then try to suggest a possible course of action.
A Government of
Enumerated Powers
In the movie City
Slickers, Curly Washburn, the character played by Academy Award winner
Jack Palance, tells Billy Crystal's character Mitch Robbins that the secret to
life is "[o]ne thing. Just one thing." The trick is to figure out, in
your own particular context, what that "one thing" turns out to be.
Curly would have
made an excellent constitutional scholar. The United States Constitution is
fundamentally about "[j]ust one thing": the principle of enumerated
federal powers. Everything else is a consequence, application, inference, or
specification of that one thing.
·
Federalism? The word never appears in the
Constitution; it is a consequence of the principle of enumerated powers.
·
Separation of powers? The phrase never appears in the
Constitution; it is a consequence of the principle of enumerated powers.
·
Nondelegation of legislative power? The term never
appears in the Constitution; it is a consequence of the principle of enumerated
powers.
To be sure, the
term "enumerated powers" does not appear in the Constitution either,
but it is not difficult to trace its pedigree. It emerges from the oft-ignored
Preamble to the Constitution, which declares that "We the People of the
United States...do ordain and establish this Constitution for the United
States of America."
The government
that emerges from the Constitution, like the Constitution itself, is a created
entity--one might even say an act of intelligent design. The act of creation
determines the scope of the created entity, which explains why the new
government can perform only those acts that its creators have granted it
power to perform. The United States government cannot claim, for example, the
divine right of kings because it did not have a divine origin. When in 1791 the
Tenth Amendment expressly confirmed the principle of enumerated powers by
declaring that "[t]he 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," it was merely clarifying the principle
that was implicit in the Constitution's creation three years earlier.
In theory, of
course, "We the People" could have chosen to create a government of
enormous, nearly unlimited power. To say that a government is limited is not to
say how far it is limited. Thus, in order to figure out what this created
federal government can do, one must read the provisions in the Constitution
that grant the government power, and that means reading them honestly as they
would be read by a reasonable interpreter.[11] It is not enough to reason from what
governments typically or previously did, or what it would be expedient for a
government to be able to do, because there may well be traditional or expedient
powers that are simply not granted to this government in its constitutive
document.
This fact of
enumerated powers immediately yields the principle of federalism: The new
national government does not automatically sweep the board with respect to
governmental power, so there may well be residual, and quite possibly
overlapping, powers possessed by the pre-existing--literally in the case of the
original 13 states and conceptually in the case of subsequently admitted
states--state governments. As far as the federal Constitution is concerned, all
is permitted to state governments unless it is forbidden; all is forbidden to
the national government unless it is permitted.
To discover what
is permitted of the national government, the obvious first move is to gather
together all of the provisions in the Constitution that grant power to the
federal government. This proves to be an unexpectedly easy task, because there
are no such provisions. The Constitution never grants power to
"the federal government" as a unitary entity: Every grant of power is
a grant to a specific institution of the federal government. Certain
institutions or individuals are granted various powers, but never "the
government" as a whole.
This basic fact
about the Constitution's enumerations of power yields the principle of
separation of powers: Anybody granted power by the Constitution can do only
what their own particular power grant authorizes them to do, not what
"government as a whole" can do. You cannot reason out the allocation
of power prescribed by the document through general theorizing about
governments or political theory. There is no substitute for reading the
document.
This essay
obviously cannot work through the Constitution's entire list of enumerated
powers to specific institutions, but it is possible to highlight some of the
key provisions. Articles IV-VII are actually some of the most interesting parts
of the Constitution, but the majority of the power-granting provisions are
found in Articles I-III, which create and empower the legislative, executive,
and judicial departments.
Start with
Article III, which deals with the affairs of the federal courts. There are
exactly two sentences in Article III that grant any person or institution any
power.
·
Article III, section 2, clause 2 gives to Congress, in addition to
the powers that it gets from Article I and elsewhere, "Power to declare
the Punishment of Treason," subject to some constraints ("but no
Attainder of Treason shall work Corruption of Blood, or Forfeiture except
during the Life of the Person attained").
·
The opening sentence of Article III says, "The judicial Power
of the United States shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish."
That is the only
sentence in Article III that grants power to any federal judicial official. The
Appointments Clause of Article II, section 2, clause 2[12] authorizes federal judges to receive from
Congress power to appoint inferior federal officers, and the Article I, section
3, clause 6 Impeachment Clause empowers the Chief Justice to preside over
presidential impeachment trials, but nothing in Article III beyond the first
sentence empowers the judiciary.
The rest of
Article III describes the characteristics of the federal courts, limits the
exercise of judicial power to certain classes of cases, and divides that
limited jurisdiction among various courts. Nothing else in Article III grants
power to any federal judge or any other actor.[13] Federal judges get only the judicial
power--quintessentially, the power to decide cases according to governing law,
plus a few powers incidental to the case-deciding function--but because the
Article III Vesting Clause vests in them "[t]he judicial Power"
without qualification, they get all of that judicial power in one
undifferentiated chunk.
Now go to
Article I, which is the principal article defining and empowering Congress.
That article begins, "All legislative Powers herein granted shall
be vested in a Congress of the United States, which shall consist of a Senate
and House of Representatives." This clause reflects a power-granting
strategy that is different from what one finds in Article III. Instead of
giving Congress everything that could fall into the conceptual category
"legislative powers," the Constitution gives it only the subset of
those powers "herein granted," meaning granted in more specific
clauses elsewhere in the Constitution. You cannot gauge the extent of
Congress's powers by general theorizing about legislation. You must read the
particular grants of power found later in the Constitution.
Those grants,
fairly read, describe a relatively modest subset of the entire potential
universe of legislative powers. Congress can raise money through taxation, by borrowing,
or by disposing of government property such as public lands. Its regulatory
jurisdiction extends to such things as foreign, interstate, and Indian
commerce; naturalization; bankruptcy; money and counterfeiting; post offices;
patents and copyrights; inferior tribunals; crimes on the high seas and against
the law of nations; declaring war; raising, supporting, and regulating the
military; consenting to various state activities otherwise prohibited by the
Constitution; defining treason, governing federal territory; admitting new
states; enforcing interstate full faith and credit rules; and proposing
constitutional amendments.
Also, Congress
can pass "all laws which shall be necessary and proper for carrying into
Execution" any of these powers or those granted to other federal actors.
Some post-1788 amendments abolish slavery, place various restrictions on the
states, and expand voting rights, and Congress is given power to enforce those
amendments. But in the end, the powers of Congress look very much as James
Madison described them on January 26, 1788.
Enumerated
Powers in Practice: The Case of Savannah
To get a good
handle on the scope of these granted powers, it is useful to see how they
played out in 1796 when Congress was asked to help rebuild Savannah. There is
no clause in the Constitution that seems directly addressed to this
circumstance: We have a taxing clause, a borrowing clause, a bankruptcy clause,
a postal clause, a copyright clause, a counterfeiting clause, a letter of
marque and reprisal clause, but no "rebuilding a city after a fire"
clause. In the face of this silence, the advocates of aid to Savannah in 1796
made (at least by interpolation) three basic arguments, none of which
ultimately corresponds to any power granted to Congress by the Constitution.
First, they said
that rebuilding Savannah would promote the general welfare, drawing on language
in Article I, section 8, clause 1, which says, "The Congress shall have
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;
but all Duties, Imposts and Excises shall be uniform throughout the United
States." If this clause indeed authorizes Congress to spend money for the
general welfare, the only issue would seem to be whether parochial aid to a
single town or region is sufficiently "general," and that is an issue
for which there certainly appears to be two sides.[14]
However, there
is one very large problem with this argument: The provision invoked by the aid
advocates is a Taxing Clause, not a Spending Clause. It is very clear
textually, grammatically, and structurally that the only power granted by this
clause is the power to lay and collect taxes. The language about the general
welfare describes one of the purposes for which taxes may be layed and
collected: "to pay the debts and provide for the common Defense and
general Welfare of the United States."
That is not a trivial
function: It makes it clear that Congress can use taxes for regulatory ends,
such as protectionism, and not merely to raise revenue, which resolved a rather
significant and thorny 18th century dispute about theories of taxation. But the
general welfare language is a tag-along qualification to the taxing power, not
a stand-alone grant of spending or regulatory authority.[15] Indeed, it is downright silly to try to
locate Congress's spending power in the Taxing Clause: Just think about what
that might mean for money brought into the treasury from borrowing or land
sales.[16] Sometimes, as Freud might have said, the
power to lay and collect taxes is just the power to lay and collect taxes.
But Congress
obviously gets the power to spend money from somewhere; maybe that source
rescues the good citizens of Savannah. As it happens, there is no express,
dedicated "spending clause" in the Constitution, so finding that
source of power requires a bit of digging. The plausible candidates come down
to two.
·
The Article IV Property Clause authorizes Congress to "dispose
of and make all needful Rules and Regulations respecting the Territory or other
Property belonging to the United States," so that spending would be
"dispos[ing]" of federal property.
·
The Article I Necessary and Proper Clause gives Congress power
"[t]o 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," so that a bill appropriating money would be a law
"necessary and proper for carrying into Execution" some other federal
power.
If the Property
Clause is the right source of federal spending authority, the aid advocates
would have a good argument, because there is no obvious internal limitation on
the scope of Congress's power to "dispose of" federal property. The
case for the Property Clause as Spending Clause is actually more plausible than
it might seem at first glance,[17] but in the end, a reasonable observer would
not expect to find Congress's spending power buried in the bowels of Article IV
in the same phrase with "Rules and Regulations
respecting...Territory." One would expect to find it in the middle of
Article I along with every other fiscal power of the government, which makes
the Necessary and Proper Clause the far more plausible candidate.[18] Accordingly, Congress can pass laws
appropriating money as long they are "necessary and proper for carrying
into Execution" some other federal power.
The problem for
Savannah in 1796 was to find some federal power that spending money to rebuild
Savannah would carry into execution. After all, the Necessary and Proper Clause
only gives Congress power to spend for executing powers that it otherwise
possesses; it does not (as would the Property Clause if it was the correct
source of power) grant a free-standing power to spend for any purpose
whatsoever.
This leads to
the second argument advanced by the aid advocates in 1796. They pointed out
that Savannah was a commercial center the rebuilding of which would promote
commerce and yield more tax revenue, so that taxpayers would get back their
investment. One can easily translate this into constitutional language as an
argument that aid to Savannah is "necessary and proper" for carrying
into execution other federal powers. The only remaining step in the argument is
to identify the federal powers that would be carried into execution.
Modern observers
will hastily fill in that gap with the Commerce Clause. People in 1796 would
not have been so hasty. The Commerce Clause says that Congress has power
"to regulate Commerce with foreign nations, and among the several States,
and with the Indian Tribes." It is actually a very straightforward clause.
Commerce means essentially trade and navigation.[19] It does not mean activities that produce
items that might eventually find their way into trade or navigation--such
activities as manufacturing, agriculture, or (most relevant to the rebuilding
of Savannah) construction. That is why Madison noted in the 45th Federalist
Paper that the Commerce Clause was a provision "from which no apprehensions
are entertained." Rebuilding Savannah simply would not "carry into
Execution" the power to regulate trade or navigation with foreign nations,
among the states, or with the Indian tribes.
But the aid
advocates were right to intimate that in some sense, rebuilding Savannah could
increase the total amount of foreign, interstate, or Indian commerce. Is it
therefore "necessary and proper for carrying into Execution" the
power to regulate commerce to spend money for things that might increase
Congress's opportunities directly to exercise its commerce power?
It is a clever
argument, but ultimately a faulty one. The power granted by the Necessary and
Proper Clause is limited in three important ways: It must carry into
execution some other federal power, it must be necessary for
carrying into execution some other federal power, and it must be proper
for that purpose. Aid to Savannah flunks all three tests.
First, does creating
opportunities for the exercise of a power really "carry[] into
Execution" that power? If so, then one might as well say that rebuilding
Savannah carries into execution the post roads power, or the patent power, or
the punishment-of-counterfeiting power (after all, a flourishing Savannah
probably generates more opportunities to punish counterfeiters than does a
burnt-out Savannah). It is not linguistically impossible to read the
Constitution in this fashion, but it is not the reading of the words that most
naturally commends itself to a reasonable observer.
Second, laws under the
Necessary and Proper Clause must be necessary for carrying into
execution other federal powers. And thereby hangs a tale. First-year law
students quickly hear of the vigorous debates concerning this requirement of
necessity that arose in connection with the creation of the Bank of the United
States, culminating in Chief Justice Marshall's epic opinion upholding
Congress's power to create the bank in McCulloch v. Maryland.[20] Students are introduced to the Scylla of
Thomas Jefferson's strict view, which claims an implementing law cannot be
necessary under the Necessary and Proper Clause unless it employs "means
without which the grant of the [implemented] power would be nugatory," and
the Charybdis of Alexander Hamilton's (and to a lesser extent John Marshall's)
position that a law is necessary if it "might be conceived to be
conducive" to the exercise of a power.[21]
James Madison's
elegant navigation between those extreme positions is often lost in the
shuffle--and, I suspect, utterly unknown even to many constitutional law
scholars. That is unfortunate, because the strict Jeffersonian view is
intratextually indefensible,[22] the Hamiltonian-Marshallian view is both
textually and intratextually indefensible,[23] and Madison had it just right when he
concluded that a necessary law requires "a definite connection between
means and ends" in which the means and ends are linked "by some
obvious and precise affinity."[24] Building a city to enlarge the scope for the
commerce, post road, or counterfeiting power seems a bit of a stretch.
Finally, the requirement
that laws for executing federal power must be "proper" is a shorthand
way of saying that they must stay within the jurisdictional boundaries of
Congress as defined by the constitutional structure of federalism, separated
powers, and retained rights.[25] It is not a mechanism for bootstrapping
Congress's limited powers beyond their natural scope. The opponents of aid to
Savannah were correct that it was outside the spending power of Congress.
The aid
advocates in 1796 also had a third argument, which was essentially: Why are you
heartless beasts prattling about the Constitution when people are suffering? I
will take up the implications of that claim a bit later in this essay.
Constitutional
Structure and the Executive Power
To return to the
larger constitutional structure, both Congress and the courts are, in keeping
with the plan of the Preamble, institutions of limited power. (Congress is even
more limited by being subdivided into two chambers, with the President given a
qualified veto and the Vice President made president of the Senate with
tie-breaking authority.) But in the modern world, most of the laws are not
actually made by Congress, and most of the cases are not actually decided by
courts. The vast bulk of the decisions that affect people's lives are made by
administrative agencies, which are nominally executive actors. Where does the
executive fit into this constitutional scheme?
Article II
begins by saying, "The executive Power shall be vested in a President of
the United States of America." From one angle, it thus resembles Article
III, seemingly giving the President a conceptual lump of power called the
executive power. From another angle, however, Article II looks more like
Article I, because it contains a whole series of provisions reading "the
President shall have power to," thus suggesting that, like Congress, the
President can exercise only those powers specifically enumerated outside of the
opening Vesting Clause.
At the end of
the day, the first angle proves to be correct: The first sentence of Article II
gives the President whatever counts as executive power in one lump sum, just as
Article III gives the federal courts whatever counts as judicial power in one
lump sum.[26] Because the Constitution gives that
executive power--all of the executive power--directly to the President,
Congress is not free to fragment that power away from presidential control,
though the precise forms of control that the President must possess are a
matter of some controversy. At a minimum, the President must be able personally
to direct the exercise of all discretionary executive power; at a maximum, the
President must additionally be able to dismiss any subordinates that the
President believes interfere with that control.
Both the
executive and judicial powers, of course, entail some elements of discretion.
No law is ever completely free of ambiguity, and interpreting ambiguities in
the course of applying laws is part and parcel of executing and judging.
Congress does not violate the Constitution by passing laws that do not crisply
and obviously resolve every possible issue that can arise under them.
But if so much
is left unresolved by a law that the President or judges are actually making
the law under the guise of implementing it, they are no longer exercising
executive or judicial power; they are using legislative power. As long as the
categories of executive and judicial power mean something different from
legislative power, and as long as the executive and judicial powers are the
only powers granted by the Constitution to executive and judicial actors, then
there is a certain kind and quality of discretion that they can never
exercise--which is precisely what the classical nondelegation doctrine
prescribes.[27] As with everything else in the Constitution,
it is a consequence of the principle of enumerated powers: Government actors
can do only what they are empowered to do. If an actor is given only executive
or judicial power, that actor can only execute or judge, not make law.
How can we tell
whether a law impermissibly delegates legislative power or permissibly allows
executive or judicial actors to exercise the kind and quality of discretion
that is appropriate to executive or judicial tasks? In the Supreme Court's
first major tussle with that problem in 1825, involving whether Congress could
let federal courts by rule determine the form of payment for satisfaction of
federal judicial judgments, Chief Justice Marshall distinguished "those important
subjects, which must be entirely regulated by the legislature itself, from
those of less interest, in which a general provision may be made, and
power given to those who are to act under such general provisions to fill up
the details."[28] It is hard to imagine a more
vague, circular, and ill-defined standard for identifying unconstitutional
delegations.
It has, I think,
proven impossible for anyone in two centuries to improve upon Marshall's vague,
circular, and ill-defined standard, which captures the relevant inquiry as well
as words can capture it. There is no algorithm for determining the
constitutionally permissible degree of discretion in any particular case, and
application of the nondelegation doctrine accordingly requires a fair degree of
potentially contestable judgment. The Constitution, alas, does not always frame
its governing rules as crisply as some would like.[29]
That does not
mean, however, that there are not easy cases to be found. It would, for
example, hardly be the establishment of post roads for Congress simply to tell
the President to come up with some post roads, and it would hardly be the
exercise of any plausible legislative power to tell the Secretary of the
Treasury to buy up whatever mortgages he thinks it would be good to buy.
In sum, the
Constitution of 1788 sets up a Congress with relatively limited jurisdiction
both to regulate and to spend; a President with law-implementing, but not
lawmaking, powers that cannot be fragmented away and given to uncontrollable
subordinates; a judiciary with law-deciding, but not lawmaking, powers; and
some significant but hard-to-pin-down limits on the extent to which Congress
can vest discretion in the President or the courts. Moreover, while there have
been 27 amendments to the Constitution since 1788, none of those amendments
alters the structure and allocation of federal powers that I have just
described. There is no amendment giving Congress power to regulate
manufacturing, agriculture, or construction and no amendment saying that
executive or judicial actors can also exercise non-executive or non-judicial
functions.
In other words,
the world has changed a great deal since 1788, but with respect to the basic
structure and powers of the federal government, the Constitution of 1788 has
not.
Government Gone
Wild: The Unconstitutional Administrative State
Given the care
with which the Constitution divides and subdivides power among its various
institutions, the most absurd abomination under our Constitution would be a
putatively executive institution that exercises sweeping authority over
subjects that are far beyond the enumerations of legislative power in the
Constitution; does so under a statutory mandate so vague that the executive
institution is effectively making rather than enforcing or interpreting law
when it acts; is not subject to the plenary control of the President in its
executive functions; conducts adjudications that usurp some of the business of
the federal courts without having the tenure during good behavior and
protections against diminishments in salary while in office that are
constitutionally required for those who exercise the federal judicial power;
circumvents the Seventh Amendment right to a civil jury in the bargain; and, to
add the final insult, combines legislative, executive, and judicial functions
in the same people at the same time.
That would be
exactly the sort of thing that the Constitution of 1788 is specifically
designed to forbid--about as clearly unconstitutional as a title of nobility or
a 28-year-old President. And that, of course, precisely describes the typical
modern administrative agency in America.
Many
administrative agencies have authority over matters that are far removed from
any of the enumerations in the Constitution. Typically, those agencies have power
to promulgate rules under statutory mandates that are literally meaningless,
such as mandates to set clean air standards "requisite to protect the
public health"; to award broadcast licenses "if public convenience,
interest, or necessity will be served thereby"; or to purchase real estate
mortgages "the purchase of which the Secretary determines promotes
financial market stability." The agencies also often adjudicate matters
under their statutes with only limited court review.
Many of these
agencies--the so-called independent agencies--are statutorily insulated from
presidential control. And to cap things off, the agencies perform all of the
functions of government at the same time: They promulgate the rules, enforce
the rules, and adjudicate their own enforcement actions.[30]
In order to
accommodate the modern administrative state, every single principle,
consequence, and inference that comes from the Constitution's "one
thing"--the enumerated powers doctrine--has systematically been purged
from modern law with respect both to the scope of federal power and to the
institutional form for its exercise.
·
The Commerce Clause is now routinely read as though it authorizes
regulation of anything that is remotely "economic," such as growing
plants in your kitchen window that might become part of a market in some
indefinite future.[31]
·
Apart from a few cases involving federalization of obviously local
crimes such as domestic violence[32] or gun possession near a school[33]--and even those cases generated hotly
contested 5-to-4 decisions that are prime candidates for overruling as soon as
the Court's composition changes--modern law treats Congress's regulatory power
as very close to plenary.
·
The Necessary and Proper Clause is now routinely read, per
Alexander Hamilton, as though it authorizes regulation of anything remotely
tangential to governmental affairs; in Sabri v. United States in 2004,[34] the Supreme Court described the clause as
"establishing review for means-ends rationality," and constitutional
law buffs know that "rationality"--so-called rational basis
review--is code for "the government wins."
·
The general welfare tag on the Taxing Clause is routinely read as
though it authorizes congressional spending for the general welfare; as the
Supreme Court put it in Sabri, "Congress has authority under the
Spending Clause to appropriate federal monies to promote the general
welfare," citing the Taxing Clause as sole authority.
·
Fragmentation of executive power through the creation of agencies
independent of the President is pervasive and permitted as long as the Court
does not judge the agency's operations to be "central to the functioning
of the Executive" and does not think limiting presidential control
"unduly trammels on executive authority" or "impermissibly
burdens the President's power to control and supervise" subordinates.[35]
·
Vacuous statutes that effectively create executive and judicial
lawmakers are accepted as long as they contain an "intelligible
principle"--and statutes such as the Clean Air Act, the Communications
Act, and the Emergency Economic Stabilization Act are considered paradigms of
intelligibility.[36]
·
The combination of functions within agencies is so widely accepted
that no one has even bothered to challenge it in more than 60 years.
If the basic
structural features of the Constitution are as clear as I have made them
sound--and while some of them are obviously more complicated than I can deal
with in a short essay, at least some of them really are as clear as I
have made them sound--surely, someone must have raised those points when the
modern administrative state was being constructed. Indeed they did, and since
the prospect of a new New Deal is looming, this is a good time to go
back for a moment to the old one to see what responses these challenges brought
forth.
Progressivism,
the New Deal, and the Foundations of the Modern Administrative State
Possibly the
single most important intellectual figure in the New Deal was James Landis. He
was a member of the Federal Trade Commission and the Securities and Exchange
Commission and one of the principal authors of the Securities Exchange Act of
1934. For nearly a decade, he was Dean of the Harvard Law School. He was in
many ways the intellectual architect of the modern administrative state.
In 1938, Landis
gave some lectures at Yale Law School that were printed as a book called The
Administrative Process. Much of the book was a response to critics of the New
Deal who pointed out the incompatibility between administrative governance and
the Constitution, particularly with respect to the delegation of legislative
authority to agencies and the combination of governmental functions within
agencies.
In his book,
Landis frankly acknowledged that the rise of the administrative state was
inconsistent with the Constitution:
The insistence
upon the compartmentalization of power along triadic lines gave way in the
nineteenth century to the exigencies of governance. Without too much political
theory but with a keen sense of the practicalities of the situation, agencies
were created whose functions embraced the three aspects of government.[37]
Landis heartily
approved of this development, writing that agencies in the modern state need to
have "not merely legislative power or simply executive power, but whatever
power might be required to achieve the desired results."[38] Accordingly, he continued, the
administrative state "vests the necessary powers with the administrative
authority it creates, not too greatly concerned with the extent to which such
action does violence to the traditional tripartite theory of government."[39]
Lest one doubt
how Landis really viewed legal impediments to administrative action, he
candidly observed:
One of the
ablest administrators that it was my good fortune to know, I believe, never
read, at least more than casually, the statutes that he translated into
reality. He assumed that they gave him power to deal with the broad problems of
an industry and, upon that understanding, he sought his own solutions.[40]
Many of Landis's
predecessors from the Progressive Era sounded similar themes.[41] The architects of the modern administrative
state did not misunderstand the Constitution. They understood it perfectly
well. They just didn't like it.
Today, James Landis's
administrative state is sufficiently entrenched that a head-on assault against
it would be futile. The Supreme Court, with the occasional exception of Justice
Clarence Thomas, has made it very clear that it will not touch the major
institutions of modern governance, such as near-plenary congressional powers,
open-ended delegations, or the combination of functions in agencies. Some of
the Justices will pick away at a few of the margins, such as the Appointments
Clause, the legislative veto, and flagrantly non-economic regulations of
"commerce," but only because these moves do not call into question
the basic integrity of administrative governance. As I have observed elsewhere,
"When the basic institutions of modern administrative governance are at stake,
the Court closes ranks and hurls the constitutional text into the Potomac
River."[42]
Congress and the
executive are obviously just as bad or worse. The courts, after all, cannot
uphold unconstitutional institutions unless Congress and the President first
create them. When was the last time that anyone saw a President veto a bill
because it exceeded the enumerated powers of Congress or delegated legislative
power? When was the last time that Congress failed to enact something for such
reasons?
Restoring
Constitutional Government: Some Modest Proposals
Faced with this
onslaught, what should someone who actually takes the Constitution seriously
try to do? It is easy to say what not to do: Do not try to slam your
head against the wall of the courts, the Congress, and the President. This is
pointless and wasteful, at least at present. Any strategy must be long-term,
and it requires three critical elements, in ascending order of importance.
The first
element is to de-legitimize precedent. As long as precedent is considered a
conversation-stopper, all is lost, because there are strong precedents for
unraveling each and every feature of the Constitution that stands in the way of
the administrative state. That means encouraging courts--even courts that one
does not like--to reconsider precedents and encouraging Congress and the
President--even Congresses and Presidents that one does not like--to exercise
their own independent judgments even when the courts have had their say. As it
happens, a critical look at precedent is not only strategically imperative, but
also constitutionally sound.[43]
The second
element is to continue developing the case for the correct meaning of the
Constitution. The correct constitutional baseline is obviously not as simple
and straightforward as I have made it seem in this brief essay. Under any
plausible understanding of the Constitution, modern government falls far short
(or, perhaps more accurately, extends too far), but there is ample room for
disagreement about many of the details--for example, the appropriate scope of
the nondelegation doctrine, the character and extent of executive power, and
the precise meaning of the word "proper" in the Necessary and Proper
Clause.
People
committed, broadly speaking, to a jurisprudence of original meaning can, do,
and should continue to explore such issues. The intellectual foundation for
constitutionalism has to be properly constructed, even if that foundation is
not enough by itself to restore the constitutional order.
The third
element is the most critical of all, and here is where it becomes important
to understand why the Constitution is so much out of favor these days. James
Landis displayed open contempt for the Constitution, but in order for Landis
and his associates to gain power, a lot of people had to agree with him.
Indeed, in a metaphorical sense, James Landis soundly beat James Madison in the
election of 1936. A similar election today would yield a similar, or even more
dramatic, result. There just are not a great many people who care very much
about the Constitution. Politicians, in turn, will not care about the
Constitution until and unless enough people care about it to make a difference.
Right now, the Constitution has no constituency. It needs one large enough to
compete in the political marketplace with other interest groups.
The good news is
that basic public choice theory teaches that a constituency does not have to be
a majority or even close to a majority to have significant influence. The bad
news is that building even a modest minority constituency for the Constitution
faces two huge problems.
First, it is actually
quite difficult to explain to anyone why they should care about the federal
Constitution any more than James Landis did. As a matter of political theory,
it is no mean feat to explain how a document voted on by a few people 230 years
ago should have any relevance today. As a matter of political practice,
the Constitution is abstract, while aid to Savannah--or to New Orleans, or to
AIG, or to Puerto Rican rum-makers--is concrete. Public choice theorists have
also taught us that the concrete, particularly a concrete that affects
cohesive, identifiable interest groups, has a huge advantage over the abstract.
Second, there is the
problem of rational ignorance. Most people have no idea what the Constitution
actually requires, even if they are inclined to care about it, and it frankly
makes no more sense for them to take the time to acquire that knowledge than it
makes sense for a law professor to acquire extensive knowledge of plumbing. I
am accordingly ignorant--rationally ignorant--of plumbing. Most people, who
have lives to lead, are ignorant--rationally ignorant--of the rather intricate
institutional design of the Constitution. It is not a solution to rational
ignorance for law professors to write articles in scholarly journals.
These are
difficult problems, but they are not new. Plato has come in for a great deal of
criticism over the past 2,500 years for suggesting in The Republic that
rulers teach their subjects a fable about the different kinds of metals in
people's souls as a way to communicate that everyone has a fixed place in the
social order.[44] This strategy has come to be called,
derisively, the "Noble Lie." I am no admirer of Plato, his
philosophy, or his metals, but I do believe that some of this criticism is
misplaced. Plato was responding to the same problems of public choice
incentives and rational ignorance that plague modern constitutionalists, and it
is important to separate the content of his suggestion from its form.
Put another way,
the Noble Lie is the Noble Lie only because it is a lie. If it was in fact the
truth, it would be the Noble Truth: noble because it would be a convenient
device for economizing on information in a world of rational ignorance while
providing a normative foundation for the social order. If there is something
wrong with that, I frankly don't see it. Perhaps constitutionalists need a
Noble Truth of their own.
The fable of the
metals is already taken, but perhaps the fable of the Founders can fit the
bill--and it has to be at least in part a fable both because it must
oversimplify the facts if it is to serve its cognitive function and because the
Founders were not a uniform group. They did not all agree with each other, they
did not all agree with me, and some of them were not even necessarily nice
people. But the core truth at the heart of the fable that needs to be developed
is that the people who designed the Constitution's structural allocation of
powers were really smart. More than that, they were really wise
in important ways, particularly with respect to human nature.[45] At the very least, they were smarter and
wiser than anyone who one can name as their modern counterparts. They designed
the Constitution as they did because they understood how people behave in
certain institutional settings.
We need the
Framers to be, for lack of a better word, venerated in the general culture--not
necessarily for who they were but for what they did. It is important to keep
the focus on the work product. That is why continuing public fascination with
the personalities of the Founding, reflected in the success of biographies,
historical novels, and television series, is a positive development but not
sufficient to build a constitutional constituency. Something needs to link
veneration of the personalities with veneration of the Constitution. That kind
of veneration serves both as a shorthand reminder of the constitutional design
that they built and as a reason to stick with that design even when the
immediate tug of politics suggests otherwise.
Early architects
of the modern administrative state understood very well the importance of
having--or in their case destroying--this constitutional veneration. Frank
Goodnow, one of the leading Progressive thinkers in the first part of the 20th
century, complained in 1911:
For one reason
or another the people of the United States came soon to regard with an almost
superstitious reverence the document into which this general scheme of
government was incorporated, and many considered, and even now consider, that
scheme, as they conceive it, to be the last word which can be said as to the
proper form of government--a form believed to be suited to all times and conditions.[46]
That
"superstitious reverence" was an obstacle that Goodnow and his
fellows had to destroy. Two decades later, Goodnow and his fellows were
triumphant. Constitutionalists would do well to learn from this experience.
Conclusion
Right now, if
you mention the Founders in the general culture, the response is likely to be
something like "dead white male slaveowners." The administrative
state will steamroll the Constitution until that response is something like
"dead white male slaveowners who were really smart people wise in the
ways of human nature."
How to get
there? Those who can write and speak in a fashion accessible to a popular culture
need to do so as loudly and as often as they can. That is not my strength; I am
in the academy precisely because I am an academic. There are surely, however,
many people who believe in the Constitution who can propagate a fable--a noble,
essentially truthful fable--that can cross the cognitive barriers of rational
ignorance and public choice.
It is possible,
of course, that things have moved so far that there is no way to recover the
cultural foundations for a constitutional constituency. But it seems wrong to
give up without a fight.
Gary S. Lawson
is Abraham and Lillian Benton Scholar and Professor of Law at the Boston
University School of Law and a founding member of the Federalist Society. He is
also the author (with Guy Seidman) of The Constitution of Empire:
Territorial Expansion and American Legal History (Yale University
Press), which surveys the legal history of American territorial acquisition and
governance, and the Federal Administrative Law casebook.
[1] The Federalist
No. 45 (James Madison), at 292 (Clinton Rossiter ed., 1961).
[2] Id.
[3] For a short
summary of the controversy, see Gary Lawson & Patricia B. Granger, The
"Proper" Scope of Federal Power: A Jurisdictional Interpretation of
the Sweeping Clause, 43 Duke L. J. 267, 267 n.3 (1993). For a more complete
account, see Lindsay Rogers, The Postal Power of Congress: A Study in
Constitutional Expansion 61-96 (Johns Hopkins U. Stud. in Hist. & Pol.
Sci., Vol. 34, No. 2, 1916).
[4]Annals of Cong.
229 (1791) (quoting Representative Sedgwick) (emphasis in original). The Senate
may have had similar debates on the proposal, but Senate debates were not
reported before 1795.
[5] Id. at 233
(statement of Rep. Page).
[6] Act of Feb. 20,
1792, ch. VII, § 1, 1 Stat. 232.
[7] See George L.
Priest, The History of the Postal Monopoly in the United States, 18 J.L.
& Econ. 33 (1975).
[8] 6 Annals of Cong.
1717 (1796).
[9] Id. at 1718.
[10] The PDF file of
the slip copy of the law exceeds 200 pages.
[11] There is
obviously a plethora of debates concerning interpretation in general and
constitutional interpretation in particular, and I cannot engage those debates
here. Most of those debates are, in my opinion, misdirected. If one is trying
to figure out what a document such as the Constitution means, the only
plausible way to perform that task is to figure out how it would have been read
by a reasonable person at the time that it was written. There are many other
cognitive operations that one can perform with such a document, but none of
those other operations can sensibly be called "interpretation," see
Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23
Const. Comm. 47 (2006), though some of those operations may turn out, as a
matter of moral and political theory, to be more important than any act of
interpretation.
[12] "[T]he
Congress may by Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments."
[13] Conventional wisdom,
among both scholars and judges, says that Article III's so-called Exceptions
Clause grants Congress power to make exceptions to the Supreme Court's
appellate jurisdiction. See id. art. III, §2, cl. 2 (giving the
Supreme Court appellate jurisdiction over a class of cases "with such
Exceptions, and under such Regulations as the Congress shall make"). The
conventional wisdom is wrong: This clause refers to powers previously granted
to Congress in Article I but does not grant new powers. See Steven G. Calabresi
& Gary Lawson, The Unitary Executive, Jurisdiction Stripping, and the
Hamdan Opinions: A Textualist Response to Justice Scalia, 107 Colum. L.
Rev. 1002, 1039-41 (2007).
[14] For explorations
of the generality requirement of this clause, see John C. Eastman, Restoring
the "General" to the General Welfare Clause, 4 Chapman L. Rev. 63
(2001); Robert G. Natelson, Judicial Review of Special Interest Spending: The
General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev.
L. & Pol. 239 (2007).
[15] See Jeffrey T. Renz,
What Spending Clause? (Or The President's Paramour): An Examination of the
Views of Hamilton, Madison, and Story on Article I, Section 8, Clause 1 of the
United States Constitution, 33 John Marshall L. Rev. 81 (1999).
[16] See David E.
Engdahl, The Spending Power, 44 Duke L.J. 1, 49 (1994).
[17] For spirited
advocacy of this case, see id. and David E. Engdahl, The Basis of the
Spending Power, 18 Seattle U.L. Rev. 215 (1995).
[18] See Gary Lawson
& Guy Seidman, The Constitution of Empire: Territorial Expansion &
American Legal History 27-32 (2004).
[19] For the utterly
overwhelming evidence for this proposition, see Randy E. Barnett, The
Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001);
Randy E. Barnett, New Evidence of the Original Meaning of the Commerce
Clause, 55 Ark. L. Rev. 847 (2003); Robert G. Natelson, The Legal
Meaning of "Commerce" in the Commerce Clause, 80 St. John's L.
Rev. 789 (2006).
[20] 17 U.S. (4
Wheat.) 316 (1819).
[21] For a short recap
of this debate, see Gary Lawson, Making a Federal Case Out of It: Sabri
v. United States and the Constitution of Leviathan, 2003-04 Cato Sup.
Ct. Rev. 119, 142-43.
[22] As Chief Justice
Marshall pointed out in McCulloch, the Constitution itself distinguishes
the word "necessary" in the Necessary and Proper Clause from the
phrase "absolutely necessary" in the Imposts Clause, which makes it
very hard to argue that the bare word "necessary" should carry the
same strong meaning as the explicit phrase "absolutely necessary."
[23] Textually, both
dictionaries and common usage in the 18th century rendered Hamilton's loose
understanding of "necessary" untenable. Intratextually, the
Constitution uses the term "needful" rather than the term
"necessary" in contexts where a loose Hamiltonian means-ends
connection is intended. See Gary Lawson, Discretion as Delegation:
The "Proper" Understanding of the Nondelegation Doctrine, 73 Geo.
Wash. L. Rev. 235, 245-46 (2005).
[24] Letter from James
Madison to Spencer Roane (Sept. 2, 1819), in 8 The Writings of james
Madison 447, 448 (Gaillard Hunt ed., 1908).
[25] Or so I have
spent most of my professional life maintaining. See Lawson, supra
note 23; Lawson & Granger, supra note 3.
[26] This important
insight about the structure of Article II was pioneered among modern scholars
by Professor Steven G. Calabresi, alone and in various collaborations with
others. For a detailed argument that summarizes, builds upon, and expands that
insight, see Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause,
2006 Ill. L. Rev. 1, 22-43.
[27] For my extensive
defense of the classical nondelegation doctrine, see Lawson, supra note
23; Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327
(2002).
[28] Wayman v.
Southard, 23 U.S. (10 Wheat.) 1, 43 (emphasis added).
[29] The difficulty (I
would say impossibility) of formulating a test for the nondelegation doctrine that
does not leave a fair degree of room for judgment has led some writers, most
notably Justice Scalia, to conclude that the doctrine is meaningless or
unenforceable. See Mistretta v. United States, 488 U.S. 361, 415-16
(1989 (Scalia, J., dissenting) ("while the doctrine of unconstitutional
delegation is unquestionably a fundamental element of our constitutional
system, it is not an element readily enforceable by the courts."). This
seems rash. The possibility of judicial error in application of a
doctrine hardly justifies the certainty of judicial error in its
abandonment.
[30] See Gary Lawson, The
Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1248-49
(1994).
[31] See Gonzalez v.
Raich, 545 U.S. 1 (2005).
[32] See United States v.
Morrison, 529 U.S. 598 (2000).
[33] See United States v.
Lopez, 514 U.S. 549 (1995).
[34] See Sabri v. United
States, 541 U.S. 600 (2004).
[35] See Morrison v.
Olson, 487 U.S. 654 (1988).
[36] See Whitman v.
American Trucking Ass'ns, 531 U.S. 457 (2001).
[37] James M. Landis,
The Administrative Process 2 (1938).
[38] Id. at 10.
[39] Id. at 12.
[40] Id. at 75.
[41] See R.J. Pestritto, The
Birth of the Administrative State: Where It Came From and What It Means for
Limited Government, Heritage First Principles Series No. 16 (2007).
[42] Gary Lawson, Prolegomenon
to Any Future Administrative Law Course: Separation of Powers and the
Transcendental Deduction, 49 St. Louis U.L.J. 885, 891 (2005).
[43] On the
constitutional problems with precedent in adjudication, see Gary Lawson, The
Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23
(1994); Gary Lawson, Mostly Unconstitutional: The Case Against Precedent
Revisited, 5 Ave Maria L. Rev. 1 (2007). On the need for independent
constitutional judgment by executive and legislative actors, see Gary Lawson
& Christopher D. Moore, The Executive Power of Constitutional
Interpretation, 81 Iowa L. Rev. 1267 (1996).
[44] See The Republic of
Plato 106-07 (Francis MacDonald Cornford ed. 1941).
[45] See Steven G.
Calabresi & Gary Lawson, Foreword: Two Visions of the Nature of Man,
16 Harv. J.L. & Pub. Pol'y 1 (1993).
[46] Frank J. Goodnow,
Social Reform and the Constitution 9-10 (1911).
http://www.heritage.org/Research/Thought/fp0023.cfm