Gotta have a theory
Jeffrey T. Renz
jeff at SELWAY.UMT.EDU
Tue Aug 15 15:45:47 PDT 2000
Volokh, Eugene wrote:
> A fascinating debate, but I wonder whether it might be helpful
> to provide some concrete examples that can help frame the discussion.
> Exactly in what contexts would the different theories reach different
Okay, I'll bite. In the forthcoming issue of the John Marshall Law
Review (Vol. 33), I argue in "What Spending Clause?" that the several
sources of "original intent" fail to provide a basis for interpretation
of (at least) the spending clause. For me, Butler v. U.S. serves as a
good example of how the Court may misinterpret those sources.
The sources are, as I describe them, "I was there" (the statements
of the members of the Philadelphia or state ratifying conventions as to
the meaning of a clause) and "course of dealing," which represents the
reliance on the actions or statements of Presidents and members of
Congress shortly after ratification as the basis for interpretation of a
given clause. (This is reflected somewhat by David Currie's series.)
When interpreting the original intent behind the spending clause, do we
rely on Hamilton (he had two interpretations) or on Madison? They were
both delegates to the Philadelphia convention and co-authors of The
Federalist Papers. I can argue that Hamilton's view ought to be
rejected, because he lost his battle on the convention floor. But one
of his interpretations prevailed in Butler.
Although there was little discussion about Art. I, sec. 8, cl. 1
post-Philadelphia, what little there was tended to be contradictory,
depending upon whether one favored the broad powers granted or not. But
when we get down to it, the various statements for or against were often
propagandizing. (And, yes, I include The Federalist Papers in this
category.) The Albany Gazette even wrote a quip about the debate called
"The Newsmongers' Song," in which they celebrated the volume of
pamphleteering business that was generated by the debates.
The danger of relying on "course of dealing" is illustrated by Pres.
James Monroe, who denied that Congress had power to spend for internal
improvements at the start of his administration and within five years
reversed his position.
If you are an "originalist" I think that you must be left with
original meaning. And with that, I do not mean that we should parse the
dictionaries (such as they were in the 18th C.) for the source of
words. In my view the better source is the history that pre-dated the
Philadelphia Convention. It often informs us of the evil or the good
that the clause was intended to address.
Butler's outcome was driven by Hughes' embrace of the Story/Hamilton
interpretation 20 years earlier. But I was intrigued that the briefing
around the question of whether Congress had the power to enact the
Agricultural Adjustment Act (with the exception of the reliance on
Story's Commentaries) rested almost entirely on "I was there" and
"course of dealing" claims. So, to answer Eugene's question (I think),
had we adopted Madison's statements as the prevailing interpretation,
Congress's spending power, as we know it today, would be severely
When I relied on an original meaning approach, informed by history
(that is, informed by identifying the evil or the good that the clause
was intended to address), I arrived at a similar outcome--that
Congress's spending power is less broad than we know it.
The details are in the article and I'm not ashamed of the
U of MT
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