Some important insights are so clear and free of qualification that after their discovery they seem too obvious to have been disputed. Think of “the earth is round” or “objects in motion tend to stay in motion unless a force acts upon them.” One such insight commonly learned in law school is that a written text cannot be interpreted by simply appealing to some broad purpose or effect. On this point, Chief Judge Easterbrook wrote that “Finding the meaning of a statute is more like calculating a vector (with direction and length) than it is like identifying which way the underlying ‘values’ or ‘purposes’ point (which has direction alone).”
The same is true with the text of the Constitution. Yet, over at the ACSBlog, Prof. Adam Winkler makes this type of argument in favor of a broad reading of the commerce clause power. He writes:
Take, for instance, the argument that the Constitution favors small government. It is undoubtedly true that the framers wanted to circumscribe the power of government; that’s why we have the separation of powers, federalism, and a Bill of Rights. Yet often ignored is that the Framers crafted the Constitution to expand the powers of government so that Congress could effectively solve national problems. The document the Constitution replaced – the Articles of Confederation – hobbled government too much and the men who met in Philadelphia sought to rectify that error.
Does citing the experience under the Articles of Confederation serve as evidence for interpreting the Constitution’s text? Of course not. Although, for what its worth, this argument was also raised to criticize the supporters of the Obamacare challenge.
The factual claim is undeniable, one of the numerous defects in the Articles of Confederation was that it granted no power to the federal government to regulate commerce. Therefore, this argument ably defeats the claim that the U.S. Constitution, like the Articles of Confederation, does not grant Congress any power to regulate commerce.
But this is all it tells us. The Founders who fiercely debated ratification of the U.S. Constitution did not face the false choice between denying Congress any power to regulate commerce and giving Congress plenary power to regulate all activity which, when aggregated, could conceivably have an effect on commerce. The Founders were equally concerned with making the government sufficiently powerful to work, while not so powerful to suppress liberty. To interpret the meaning of our Constitution’s text, we have to consider both of these concerns. Perhaps James Madison made this point best in Federalist 51:
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
For more on this issue, check out Justice Thomas’s talk with Akhil Amar on Constitution day.