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Saturday, August 24, 2013

Living Precedent

On November 5, the Supreme Court will hear arguments in Bond v. United States.  The case involves whether, as seemingly suggested in Missouri v. Holland, a treaty may expand the domestic regulatory powers of Congress beyond those enumerated in the Constitution.  A key issue in Bond is whether the criminal law portions of the statute implementing the Convention on Chemical Weapons are “necessary and proper” to executing an exercise of the Treaty Power.

The idea that the Treaty Power can extend the domestic regulatory powers of Congress beyond those enumerated in the Constitution is an interesting question and will, I am sure, be the focus of much of the debate moving forward.  I am thinking about a different aspect of the issue, however, one that relates to the meaning of “necessary and proper” and the role of McCulloch in construing that clause.

More after the break  

Under Article II, Section 2, cl. 2, the President “shall have power, by and with the advice and consent of the Senate, to make Treaties.”  Under Article I, Section 8, cl. 18, Congress has 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.”  Finally, under Article VI, cl. 2, “[t]his Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”  Together, these clauses establish that Congress may displace state law by way of laws that are “necessary and proper” to execute an exercise of the Treaty Power. 

But how do we interpret “necessary and proper”?  Scholars such as Gary Lawson have developed theories of the original meaning of the Necessary and Proper Clause.  Proponents of broad theories of national power, however, look to the interpretation of the clause provided by Chief Justice John Marshall in McCulloch v. Maryland.  But why choose Marshall over original meaning?  To begin with, whether Marshall got it right as a matter of original meaning is a matter of considerable dispute (and was at the time he issued the opinion).  One may, of course, reject the idea that we should follow original meaning in the area of federal power because there is no good reason to follow the ideas of generations long past who had no idea what we would face in the twenty-first century.  But this is a criticism that applies equally to the original meaning and Marshall’s original opinion.

Another approach counsels the need to view the Constitution as a living document, the interpretation of which properly changes from generation to generation as new needs, ideas, and beliefs inform the public (and the members of the Court).  We can take the document as a simple framework and “build-out” (to use Balkin’s phrase) over time.  These “build-outs” can also be taken down as needs arise (see the Court’s rejection of Lochner). 

But the same reasoning would apply to McCulloch.  There is no reason to view the decision as anything other than a “frame work” that can be built upon by one generation (under Marshall) then partially torn down in another (Taney, the Lochner Court), then built up again (Warren), then partially torn down again (Rehnquist, Roberts).

The question becomes whether a commitment to “follow the text of McCulloch” tells us anything more about whether to construe the Treaty Power broadly or narrowly than does a commitment to “follow the text of the Constitution”  What is our theory of living precedent?

Posted by Kurt Lash on August 24, 2013 at 10:45 AM | Permalink


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I think that you are right to point out much turns on how we interpret the underlying clause. Perhaps the answer is "we should read McCulloch in a manner that makes the opinion say whatever we think is the original or "true" meaning of the Necessary and Proper Clause." But if that is the right approach, then we would not care about what Marshall was trying to say, or how the public originally understood the opinion, or even how the opinion has been traditionally understood. And if that is the case, then how is this really a theory of precedent and the application of stare decisis? Put another way, if courts are not bound by the original meaning of the precedent (however defined), then in what way are court's bound to precedent at all?

Posted by: Kurt Lash | Aug 26, 2013 10:00:12 PM

Hi Kurt, This is an interesting question. It seems you're asking whether we're thoughtfully following precedent given the existing understanding of the Constitution and its layers of application, or whether we're simply path dependent. Isn't it some of both? And, doesn't it depend on the thinker's choice between the commitments you've presented? If you believe the Necessary and Proper Clause is an embodiment of the penumbras and emanations of Art. I sec. 8 (to borrow from Griswold), then Marshall's announcement that cl. 18 can attach generally to the Great Powers expressed in sec. 8 may be worthy of 'super precedent' status. If you believe sec. 8 could not possibly have penumbras and emanations, then Marshall was wrong and McCulloch should not be followed, or at least should be read narrowly. Perhaps this is too consequentialist. But, from a textualist perspective, the clause reads broadly, it is not limiting unto itself. That, too, would seem to support the McCulloch read but also require a set of choices that may not provide an answer. In any case, thanks for posting on Bond, the facts make for great teaching (much more interesting than most 10th Amendment cases), and it will be interesting to see what the Court does with this round.

Posted by: Nicole Huberfeld | Aug 26, 2013 2:56:58 PM

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