Rule of Law

Prof. Lash on “Resolution VI” and Federal Power: High on Drama, Low on Substance

Kurt Lash’s new article, “Resolution VI”: The Virginia Plan and Authority to Resolve “Collective Action Problems” Under Article I, Section 8, starts out with a rather astonishing assertion: that a number of very distinguished constitutional scholars such as Jack Balkin and Akhil Amar have been trying to supplant constitutional text (the enumeration of congressional powers in Article I, section 8 ) and long-standing precedent (McCulloch v. Maryland and Gibbons v. Ogden), based on nothing more than “an historical mistake.”  After suggesting that Balkin, Amar, and others have been hoodwinked by history, Lash proceeds to dramatically reveal the purported error in giving any thought whatsoever to the resolution adopted by the delegates to the Constitutional Convention that Congress shall have authority “to legislate in all Cases for the general Interests of the Union, and also in those to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual legislation.”

The problem is that Lash’s article is all smoke and mirrors and trumped up controversy.  The conclusion of the article is that the delegates to the Constitutional Convention “abandoned” Resolution VI in favor of enumerated powers.  But this unsupported conclusion makes no sense.  The Convention adopted Resolution VI to guide the Committee of Detail, which was instructed to reduce the broad instruction into a list of enumerated powers.  The Convention delegates then adopted Article I.  Resolution VI served its intended purpose of guiding the construction of Article I.  Resolution VI is not in the Constitution—it was never intended to be.  And none of the “Resolution VI advocates” Lash targets in his piece have ever claimed otherwise.  However, that doesn’t mean the resolution isn’t valuable in understanding the resulting constitutional text that enumerates Congress’s powers in our federalist system.

By starting out with a flawed premise, Lash’s article sets up drama where there isn’t any.  He asserts that, “[g]iven the long-standing principle of enumerated power and the traditional status of cases like McCulloch and Gibbons and the fact that Resolution VI is not part of the Constitution, advocates of Resolution VI carry a heavy burden if they wish to shift the foundations of American constitutional law.”  This sentence is a little baffling.  Is Lash suggesting that invoking Resolution VI somehow means you don’t believe in enumerated powers anymore?  It seems so: he claims, “[a]s described by its advocates, Resolution VI rejects textual or federalism-based limitations on federal power and instead authorizes Congress to regulate all collective action problems of national importance.”  Huh?  As a threshold matter, the delegates to the Constitutional Convention could not have “reject[ed]” textual limitations on federal power by adopting Resolution VI when the very reason they adopted it was to provide guidance to the Committee of Detail in drafting the textual grants and limitations of congressional power in Article I.  Moreover, I have never read Balkin or Amar to make such a bizarre suggestion; from my read, they have included discussion of Resolution VI to add depth to our understanding of the Constitution’s federal design, not as support for some absurd argument that the Supreme Court should ignore the text of Article I and rely solely on ideas of “Harmony” or other words found in Resolution VI.

I’m also pretty sure that Lash’s cited constitutional scholars and advocates—and here I can speak for myself, since I have been counsel of record on all the briefs Lash cites as advocating for “us[ing] Resolution VI as a guide to interpreting the scope of federal power”—are not interested in jettisoning McCulloch or Gibbons.  In fact, the briefs cited by Lash relied quite heavily upon these cases, finding the decisions in complete agreement with the principles expressed by Resolution VI.  Have any of the “Resolution VI advocates” criticized by Lash ever quibbled with Chief Justice Marshall’s common-sense observation that “the enumeration [of congressional powers] presupposes something not enumerated”?  Of course not.  But Resolution VI can shed light on the purpose behind the list of congressional powers enumerated in the Constitution.

Even with the flawed premise that begins Lash’s historical whodunit, the dramatic “historical mistake” he purports to reveal is much ado about nothing.  Lash argues that when James Wilson, a convention delegate and member of the Committee of Detail, explained to the Pennsylvania ratifying convention that when the Constitution’s drafters enumerated certain federal powers “in which the application of the principle ought to take place,” “the principle” Wilson to which referred to was not Resolution VI, as Balkin has suggested, but rather an amendment proposed by delegate Roger Sherman.  Sherman’s amendment would have given Congress power “in cases which may concern the common interests of the Union” but not “in any matters of internal police which respect the government of such States only.”  Did Lash find some new historical source where Wilson trash talks Resolution VI and pledges to, henceforth, only refer to Sherman’s proposed amendment whenever he utters the words “the principle”?  No.  He places the language of Resolution VI, Sherman’s amendment, and Wilson’s speech side by side and concludes that Wilson’s words are more like Sherman’s than Resolution VI.  It’s not an unreasonable conclusion, but it certainly is a debatable one and hardly the dramatic “historical error” promised by Lash’s article.

Lash also points out that there are two versions conveyed to us through history of Wilson’s speech, only the second one of which contains the exact phrase that “room must be allowed for great discretionary latitude of construction of the principle” embodied in the enumerated powers of Article I.   As Lash himself explains, this second version of the speech was printed and published after Wilson’s supporters claimed the first version was “very inaccurate,” and the printer promised a version of the speech “without mutilation or misrepresentation.”   History thus appears to suggest that what Wilson actually said to the ratifying convention was more appropriately captured in the second version of his speech.  Lash argues that this matters in determining whether the second version of the speech can count in the analysis of Article I, section 8’s original public meaning: the first version was more widely circulated than the second.  This might matter if the two versions were directly at odds with one another, which they most certainly are not.  But Lash insists that the Resolutionaries need this second version of Wilson’s speech to be the prevailing one if they want to disprove the claim, made by Randy Barnett, that the Constitutional Convention “rejected” Resolution VI.

You don’t need Wilson’s speech to disprove that claim.  The delegates to the Constitutional Convention adopted the resolution and passed it on to the Committee of Detail as guidance in drafting Article I, section 8.   The committee had no power to “reject” the resolution.   To be sure, the exact words of Resolution VI do not appear in the text of the Constitution.  But that wasn’t the purpose of Resolution VI—rather, it was to establish the guiding principle behind the more specific enumeration of congressional power in the Constitution’s final text.   All this historical drama and trumped up controversy to show otherwise?  Professor Lash doth protest too much, methinks.