FReeper Book Club: The Debate over the Constitution, Brutus #12-2

Finishing his essay from a week earlier, Brutus, likely Judge Robert Yates of New York, tackles the implications of the Necessary and Proper Clause and the effects of the federal courts on state sovereignty.

¹ This same manner of explaining the Constitution will fix a meaning, and a very important one too, to the 18th clause of the same section which authorizes the Congress to make all laws which shall be proper and necessary for carrying into effect the foregoing powers, etc.

² A voluminous writer in favor of this system has taken great pains to convince the public that this clause means nothing, for that the same powers expressed in this are implied in other parts of the Constitution.

³ Perhaps it is so, but still this will undoubtedly be an excellent auxiliary to assist the courts to discover the spirit and reason of the Constitution, and when applied to any and every of the other clauses granting power, will operate powerfully in extracting the spirit from them.

⁴ I might instance a number of clauses in the Constitution which, if explained in an equitable manner, would extend the powers of the government to every case and reduce the state legislatures to nothing, but I should draw out my remarks to an undue length, and I presume enough has been said to show that the courts have sufficient ground in the exercise of this power to determine that the Legislature have no bounds set to them by this Constitution by any supposed right the legislatures of the respective states may have to regulate any of their local concerns.

⁵ I proceed, second, to inquire in what manner this power will increase the jurisdiction of the courts.

⁶ I would here observe that the judicial power extends expressly to all civil cases that may arise, save such as arise between citizens of the same state, with this exception: to those of that description that the Judicial of the United States have cognizance of cases between citizens of the same state, claiming lands under grants of different states.

⁷ Nothing more, therefore, is necessary to give the courts of law under this Constitution complete jurisdiction of all civil causes, but to comprehend cases between citizens of the same state not included in the foregoing exception.

⁹ Nothing more is necessary than to set forth in the process that the party who brings the suit is a citizen of a different state from the one against whom the suit is brought, and there can be little doubt but that the court will take cognizance of the matter, and if they do, who is to restrain them?

¹⁰ Indeed, I will freely confess that it is my decided opinion that the courts ought to take cognizance of such causes under the powers of the Constitution.

¹¹ For one of the great ends of the Constitution is “to establish justice.”

¹² This supposes that this cannot be done under the existing governments of the states, and there is certainly as good reason why individuals, living in the same state, should have justice as those who live in different states.

¹³ Moreover, the Constitution expressly declares that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.”

¹⁴ It will therefore be no fiction for a citizen of one state to set forth in a suit that he is a citizen of another, for he that is entitled to all the privileges and immunities of a country is a citizen of that country.

¹⁵ And in truth, the citizen of one state will, under this Constitution, be a citizen of every state.

¹⁶ But supposing that the party who alleges that he is a citizen of another state has recourse to fiction in bringing in his suit, it is well known that the courts have high authority to plead to justify them in suffering actions to be brought before them by such fictions.

¹⁷ In my last number I stated that the Court of Exchequer tried all causes in virtue of such a fiction.

¹⁸ The Court of King’s Bench in England extended their jurisdiction in the same way.

¹⁹ Originally, this court held pleas in civil cases only of trespasses and other injuries alleged to be committed vi et armis.

²⁰ They might likewise, says Blackstone, upon the division of the aula regia have originally held pleas of any other civil action whatsoever, except in real actions which are now very seldom in use, provided the defendant was an officer of the court, or in the custody of the marshal or prison keeper of this court, for breach of the peace, etc.

²¹ In process of time, by a fiction this court began to hold pleas of any personal action whatsoever, it being surmised that the defendant has been arrested for a supposed trespass that “he has never committed, and being thus in the custody of the marshal of the court, the plaintiff is at liberty to proceed against him, for any other personal injury: which surmise of being in the marshal's custody, the defendant is not at liberty to dispute.”

²² By a much less fiction may the pleas of the courts of the United States extend to cases between citizens of the same state.

²³ I shall add no more on this head, but proceed briefly to remark in what way this power will diminish and destroy both the legislative and judicial authority of the states.

²⁴ It is obvious that these courts will have authority to decide upon the validity of the laws of any of the states in all cases where they come in question before them.

²⁵ Where the Constitution gives the general government exclusive jurisdiction, they will adjudge all laws made by the states in such cases void ab initio.

²⁶ Where the Constitution gives them concurrent jurisdiction, the laws of the United States must prevail because they are the supreme law.

²⁷ In such cases, therefore, the laws of the state legislatures must be repealed, restricted, or so construed as to give full effect to the laws of the Union on the same subject.

²⁸ From these remarks it is easy to see that in proportion as the general government acquires power and jurisdiction by the liberal construction which the judges may give the Constitution, will those of the states lose its rights until they become so trifling and unimportant as not to be worth having.

²⁹ I am much mistaken if this system will not operate to effect this with as much celerity as those who have the administration of it will think prudent to suffer it.

³⁰ The remaining objections to the judicial power shall be considered in a future paper.

This is a short paper in which Brutus raises objections whose strength may make the reader smile, given that the dire predictions therein have not come to pass. Such a smile would be quite premature, however. In fact, Brutus’ objections turned out to be so well-founded that much of the attention on the formation of the government would be focused on just those issues, even before the ratification of the Constitution was yet unanimous.

Article III of the Constitution is, after all, a mere three hundred-odd words in length, and to a legal scholar such as Brutus it offered little more than a skeleton around which an abusive and dictatorial body could be easily constructed. His principle concerns are twofold: first, that there is in the proposed Constitution no practical limit to the jurisdiction of the Supreme Court; and second, that such an unlimited scope would inevitably result in the expansion of the federal court system to the point where the existing state systems would be entirely superseded.

His focus is necessarily on the Supreme Court because the construction of a federal court system was only mentioned as a matter that would require the future action of Congress (Article III, Section 1). Indeed, it figured large among the first items of business for the first Congress, whose result was the Judiciary Act of 1789. Within that act was an attempt to define the intricate matter of jurisdiction, which was the principle focus of Brutus’ essay, and would result in a formidable body of case law and legal doctrine which is still being refined some two centuries hence.

Brutus has, in the first half of this essay, developed the case that the federal Judicial branch will be capable of finding through the Necessary and Proper Clause that the Legislative branch has no bounds in its ability to override the legislatures of the various states (4), which logic he now applies to the potential aggrandizement of the federal judiciary itself through the thorny issue of jurisdiction. From Madison’s point of view, it was a strength of the Constitution that the principle of checks and balances had Congress defining the jurisdiction of the Supreme Court, which was capable in turn of invalidating laws passed by Congress through an essentially adversarial arrangement. Brutus points out, however, that should this arrangement be synergistic instead, the fact that each body might limit the other could, in practice, result in each declining to do so to their mutual benefit in terms of power.

Now, in the second half of the essay, he amuses himself and his readers by expounding on loopholes made inevitable by the terseness of Article III. One of these results from the difficulty inherent in trying a case involving the citizens of two different states. That, of course, is a matter for the federal judiciary under Article III, and properly so, according to Brutus.

¹⁰ Indeed, I will freely confess that it is my decided opinion that the courts ought to take cognizance of such causes under the powers of the Constitution.

The problem, however, is that a citizen determined on a legal fiction might make an end-run around any state court by claiming to be a citizen of another state.

¹³ ...the Constitution expressly declares that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.”

¹⁵ And in truth, the citizen of one state will, under this Constitution, be a citizen of every state.

The modern usage that one is a citizen of the United States as a whole, and a resident of one state or another as he or she chooses – and can change, albeit not entirely arbitrarily – is quite close to what Brutus has in mind here. But what that would do under the unconstrained plan within Article III as it appeared before Brutus is to enable an individual to force a case into a federal court instead of the state court that would normally decide it, through claiming citizenship in a state different from that of his opponent at law. This, to Brutus, implied an inevitable increase in both the power and case load of the federal system. At 16 through 23 he describes an analogous process through which the English Court of King’s Bench extended its jurisdiction.

Worse, the abuse of this method will lead not merely to the federal judiciary’s power to judge the validity of any state’s laws, but to their being forced to do so by any citizen who might find any state’s laws inconvenient. Where the federal judiciary has exclusive jurisdiction, this is understandable (25), although the limits of such exclusive jurisdiction were not yet defined. But it is also true in cases of concurrent jurisdiction (26). What, then, will be left for the states?

All this was very much yet to be determined, and that makes Brutus profoundly uncomfortable. The Judiciary Act of 1789 was intended to address these issues, but very shortly, in Marbury v Madison (1803), one of its own provisions was invalidated by the very judiciary whose limits it attempted to describe. Here the judiciary acted against the powers of the Legislative branch.

The issue of jurisdiction between citizen and state was also to constitute a challenge to the federal judiciary. The state of Georgia found itself being sued by Alexander Chisholm of South Carolina in Chisholm v Georgia (1793). Under the clear provisions of Article III the Supreme Court took original jurisdiction, just as Brutus had predicted and to the decided discomfort of the state in question. The discomfort was reflected in the other states as well, and its result was the 11th Amendment to the Constitution which sought to constrain the automatic jurisdiction and was ratified two years later. Here the Legislative branch acted against the powers of the Judicial branch. Madison was justified in his pride at the action of checks and balances, but Brutus was more than justified at his dismay that this area of enormous importance was left to be worked out at all.

What took place over the next two centuries was the slow building of determinative legal doctrine in these matters, whose original ad hoc nature has, over time, accrued the force of precedent and the gravity conferred by long usage. The doctrine of Diversity Jurisdiction, for example, codifies the limits of federal jurisdiction in cases where the parties at law are of different states or countries. The doctrine of Removal Jurisdiction refers to the ability of a citizen to move a lawsuit from state to federal court and codifies the conditions under which this is permissible. These doctrines are comprised of enormous bodies of case law, far more than might be expected to reside in the slender body of the Constitution, but Brutus’ credentials as a legal analyst are bolstered considerably by his accuracy in identifying them within the body of this essay.

The Necessary and Proper Clause has been the mainstay of those favoring the exercise of implied powers, rather than enumerated powers, by the federal government. Even the Articles of Confederation recognized implied powers. But Brutus correctly points out that the federal court system will stretch what is necessary and proper just as much as Congress or the President. What possible solutions exist to move the balance in favor of federalism, and how could they be implemented peacefully?

Brutus’ Critique

This is a short paper in which Brutus raises objections whose strength may make the reader smile, given that the dire predictions therein have not come to pass.

Haven’t they?

4 I might instance a number of clauses in the Constitution which, if explained in an equitable manner, would extend the powers of the government to every case and reduce the state legislatures to nothing,

The states are only allowed to do what the Feds haven’t taken over and must do what the Feds tell them to do. Right? If not "nothing" then they’ve become the next best thing.

14 It will therefore be no fiction for a citizen of one state to set forth in a suit that he is a citizen of another, for he that is entitled to all the privileges and immunities of a country is a citizen of that country.

15 And in truth, the citizen of one state will, under this Constitution, be a citizen of every state.

Doesn’t the debate over gay marriage prove this true? If one state allows a gay marriage, all must honor it and prepare for gay divorces.

28 From these remarks it is easy to see that in proportion as the general government acquires power and jurisdiction by the liberal construction which the judges may give the Constitution, will those of the states lose its rights until they become so trifling and unimportant as not to be worth having

Truth? It seems so to me. States can barely keep the Feds from declaring "gun-free zones" around schools and only because the USSC said so.

Madison was justified in his pride at the action of checks and balances, but Brutus was more than justified at his dismay that this area of enormous importance was left to be worked out at all.

I think the dichotomy here is that Madison wanted to create a national government supreme to the state governments. Madison knew that over time it would assert its authority even over the constitutional amendments that tried to prevent it. He argued as such in the Constitutional Convention, I believe. Brutus sees the obvious fact that a USSC appointed by a nationally elected president would defer to the power of the national government. Before the 17^th Amendment, the state governments could only stop justices being appointed through the Senate. The states would not appoint judges hence the judges would be, first, acceptable to the national government.

Discussion Topic

What possible solutions exist to move the balance in favor of federalism, and how could they be implemented peacefully?

Peacefully? You’re such a stickler.

Well in the end, Madison gets his way. He was right. Either the state governments would be supreme, as in the Articles of Confederation, or the national government would, as in the Constitution. An amendment here or there doesn’t change this fact.

The only check I can see is to let the states appoint Supreme Court Justices. Only then would the filter be set such that "their people" would decide the issue. Of course, that makes no sense. A national government with justices appointed by the states? That would be dysfunctional.

What possible solutions exist to move the balance in favor of federalism, and how could they be implemented peacefully?

As I see it there are three things that can be done that would peacefully move us in that direction. They are starting with the simplest first:

1. Pass the currently pending FairTax bill (HR-25) into law.

2. Repeal the 17th amendment to the Constitution.

3. Somehow develop an informed and active electorate.

The first would make us a truly FREE people once again economically.

The second would restore actual representation of the individual states to the structure of the federal government as was intended by the founders.

And the third, if it could be accomplished, would ensure much closer supervision of our elected representatives than is currently the case.

A national government with justices appointed by the states? That would be dysfunctional.

Actually, under the original design of the Constitution, the States had great input in the selection process of judges. The President nominated, the State-Appointed Senators confirmed.

Doesn’t the debate over gay marriage prove this true?

From what I understand, the federal government got involved in marriage after it became a national tax issue. It's a curse of the IRS.

What is interesting is that "JUSTICE" is the squirmy work that is hard to catch and hold. It was the first question in Plato's Republic, and remains elusive today.

Even the Articles of Confederation recognized implied powers. But Brutus correctly points out that the federal court system will stretch what is necessary and proper just as much as Congress or the President. What possible solutions exist to move the balance in favor of federalism, and how could they be implemented peacefully?

Our Founders knew the answer, which we continually ignore:

From the Virginia Declaration of Rights:
XV That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.

In my recent readings, I ran into this jewel:

Hence the concentration of power and the subjection of individuals will increase among democratic nations, not only in the same proportion as their equality, but in the same proportion as their ignorance. It is true that in ages of imperfect civilization the government is frequently as wanting in the knowledge required to impose a despotism upon the people as the people are wanting in the knowledge required to shake it off; but the effect is not the same on both sides. However rude a democratic people may be, the central power that rules them is never completely devoid of cultivation, because it readily draws to its own uses what little cultivation is to be found in the country, and, if necessary, may seek assistance elsewhere. Hence among a nation which is ignorant as well as democratic an amazing difference cannot fail speedily to arise between the intellectual capacity of the ruler and that of each of his subjects. This completes the easy concentration of all power in his hands: the administrative function of the state is perpetually extended because the state alone is competent to administer the affairs of the country.
Alexis Tocqueville - - Democracy in America, Chap. IV

Either the state governments would be supreme, as in the Articles of Confederation, or the national government would, as in the Constitution.

That's it in a hutshell. As Madison explained in a letter to Washington:

"Conceiving that an individual independence of the States is utterly irreconcileable with their aggregate sovereignty; and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable, I have sought for some middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful."

Subordinately useful? Man, that's harsh.

What possible solutions exist to move the balance in favor of federalism, and how could they be implemented peacefully?

The Articles of Confederation possessed expressly delegated powers only. The first draft of the 10th amendment contained that language--expressly delegated. It failed. Had it passed, it would have changed the nature of the Constitution, and would have been an amendment with teeth, as opposed to the toothless mockery that is the 10th amendment.

Pass an amendment limiting the powers of the national government to expressly delegated powers only. That'd change things a bit.

Then you've got to do something about Article 3. Most gubmint expansion can be seen as a combination of implied powers and Article 3 powers. The SCOTUS decisions must have some form of appeal==to the states.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.