Clause 1 of the powers.

[Jeffrey T. Renz]

Mssrs. Gray's and Clanton's comments fail to distinguish between the
various kinds of history we might look to for guidance.  There are three
(or four):  (1) the pre-Convention history, which covers centuries and
which supports the rule of interpretation which asks what evil the
legislation is intended to address; (2 & 3) the statements in the
Philadelphia Convention, the pamphleteering after the Convention and
before approval by the states, and the statements in the various state
conventions; and (4) the way in which the Executive and Congress applied
the language.

    The statements of the framers in the Convention give us some idea of
the origin(s) of various terms and phrases (for example, the discussion
tell us that "Migration or Importation of Persons" speaks primarily to
slavery.)  But the in the Philadelphia Convention reflect the drafters
understanding, not the understanding of those who approved the
document.  The pamphleteering, as Sandy Levinson notes, was either good
advocacy or good propaganda and the authors seized upon whatever
arguments or claims were available to defeat or adopt the new document.
The statements in the conventions are similar, although perhaps less
inflammatory.

    The post-adoption actions of the Executives and the Congresses
suffer from similar flaws.  What was expedient or necessary was first
proposed, then justified.  Early Congresses turned down several
proposals to spend for the general welfare on grounds that the
Constitution did not authorize spending other than in exercise of an
enumerated power.  Chief among these was the defeat of the proposal to
aid Savannah after its fire.  (This hits close to home out here in
Montana.)  The evolution of the power to spend reflected less any
philosophy and more the evolution of the nation.  Commerce and
prosperity demanded roads and canals and so the government helped build
them.  The world didn't end, the Republic survived, so it was okay and
the next spending bill was easier to swallow.

    Pre-Convention history, however, lacks any prejudice.  John
Dickinson did not write his Letters from a Farmer with the expectation
that they would be referred to in a ratification process 20 years
later.  Parliament did not require that imports and exports pass through
home island ports so that we could interpret the meaning of the ports
clause of the Constitution.

    These phrases didn't come from thin air.  The Framers weren't so
brilliant that they put this together from whole cloth during a hot
summer.  Each restriction in the Constitution, including the general
welfare clause, can be traced back to an abuse by Parliament or the
Crown, just as many powers can be traced to the flaws in the
Confederation.

    Jeff

Clanton, Brad wrote:

> Tom Gray wrote:
>
> "As a non-believer, I still think I can state textualist doctrine.
> Legislative history is relevant as evidence of linguistic meaning, but
> has
> no special status. And textualism saves effort over subjective
> intentionalism because under the latter doctrine, legislative history
> is
> relevant in every case, whereas under the former, historical delving
> is
> relevant only in the much rarer cases where there is a plausible claim
> of
> actual meaning shift between the time of enactment and the present."
>
> Very well said.  There's also one other point that should be made
> regarding
> Justice Scalia's view of legislative history and statutory
> interpretation.
> If you look at his opinions, you'll see that the main problem with
> committee
> reports (and, having written them, I know), floor statements, and so
> forth,
> is that as evidence of the meaning of the law they are unreliable.
> Once
> legislators figured out that courts were looking at these things, they
> began
> to pepper the record with all sorts of contradictory assertions.  The
> same
> is not true with respect to most of the historical evidence regarding
> the
> meaning of the text of the Constitution.
>
> Brad Clanton
> Counsel
> House Judiciary Committee
> Constitution Subcommittee
> 362 Ford House Office Building
> Washington, D.C. 20515
> 202.226.7685 (phone)
> 202.225.3746 (fax)
>
> -----Original Message-----
> From: Tom Grey [mailto:tgrey at LAW.STANFORD.EDU]
> Sent: Wednesday, September 13, 2000 2:39 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Clause 1 of the powers.
>