The Founders' Constitution Table of Contents

REQUIRED READING Charles Kesler’s Introduction to the Signet Classic edition of The Federalist Papers ...... 1 The Federalist Papers: # 10 ...... 13 The Federalist Papers: # 51 ...... 17 The Federalist Papers: # 84 ...... 20 Excerpt from Richard Brookhiser’s Founding Father: Rediscovering George Washington ...... 26 Excerpt from Richard Brookhiser’s James Madison ...... 30 Excerpt from Richard Brookhiser’s Alexander Hamilton, American ...... 35

RECOMMENDED READING de Tocqueville, Alexis. “On the Omnipotence of the Majority in the United States and its Effects.” ...... 38 Lawson, Gary. “The Rise and Rise of the Administrative State” ...... 46 Schwarz, Fred. “Our Subversive Founders”...... 59 Charles Kesler’s 25 page Introduction to the Signet Classic Session 2 Required Reading: edition of The Federalist Papers Charles Kesler's 25 page Introduction to the signet Classic edition of The Federalist Papers

The Federalist Papers #’s 10, 51, 84

Brookhiser, Richard. Founding Father: Rediscovering George Washington, pp. 185-191.

Brookhiser, Richard. James Madison, pp. 98-107.

Brookhiser, Richard. Alexander Hamilton, American, pp. 93-97.

1 2 3 4 5 6 7 8 9 10 11 12 XXX Introduction Introduction xxxi rights and freedom in the name of duties or virtues. it) or must take charge (take responsibility, as we say Publius does not endorse this, but neither does he allow today). The Constitution provides platforms for both rights to sink to their lowest common denominator, to kinds of responsibility in the offices of the national gov become expressions of mere self-interest or passion. In ·ernment, particularly the Senate (see Federalist No. 63) stead, he calls for the "reason of the public" to become and the presidency (No. 70). Responsibility is-the only responsible for the passions of the public: He defends a virtue or quasi-virtue that has entered our moral lan form of government that will encourage rights to be guage from the American Founding, and in l�rge mea claimed and exercised responsibly. The Federalist's con- sure it is The Federalist that has defined and still defines cern for veneration of the Constitutiop shows that a its contemporary meaning. Publius shows _us what it purely calculative or self-interested attachment to gov means, and what it takes, to live as responsible republi ernment is not sufficient to secure republicanism. The cans under a written Constitution. This is The Federal Constitution must attract the loyalty, admiration, pride, ist's lesson in self-government. and even reverence of American citizens if the rule of law is to be firmly grounded-if republicanism is to be -Charles R. Kesler responsible. March 1999 In the end, then, one needs an opinion of the Consti tution's goodness to attract, define, and hold Americans' passions and interests in a decent republican order. This means a politicS- of public opinion, not just of fractured interests a la Federalist No. 10. Majority faction, in other words, cannot finally be defeated except by· a healthy majority opinion, the formation of which is Publius's chief educational and political goal. This implies not so much a politics of virtue as of responsibility, which is ,, consistent with men's natural rights understood in light The Federalist Papers #’s 10, 51, 84 of "the honor of the human race" (No. 11, p. 85) rather than in light of man's dishonorable necessities.i The Fed eralist elucidates the kind of politics and constitution a1ism that are needed in order to rescue the cause of the American Revolution and to vindicate the Declara No. 10: THE SAME Susmcr CONTINUED (MAmsoN) tion of Independence, which after all proclaimed not only "that all men are created equal" and "are endowed AMONG the numerous advantages promised by a well by their Creator" with certain unalienable rights, but constructed Union, none deserves to be more accurately that in defense of those sacred rights, good men ought developed than its tendency to break and control the to pledge their "sacred honor." violence of faction. The friend of popular governments This pledge go�s beyond the requirements of responsi never finds himself so much alarmed for their charaoer bility, of course, but it suggests how responsibility points and fat� as when he contemplates their propensity to beyond itself to virtue or statesmanship. Responsibility this dangerous vice. He will not fail, therefore, to set a comes into its own, after all, when some sort of action due value on any plan which, without violating the prin must be taken: It strives to bring interest and duty to ciples to which he is attached, provides a proper cure gether in order to do the right thing, often in disagree for it. The instability, injustice, and confusion introduced able situations where someone must act with a view to into the public councils have, in truth, been the mortal a remote and long-term good (act responsibly, we call diseases under which popular governments have every� 13 14 15 16 No. 11: Hamilton 78 THE FEDERALIST PAPERS 79 majority? Here again the extent of the Union gives it to the national, the local and particular to the State the most palpable advantage. legislatures. The influence of factious leaders may kindle a flame The other point of difference is the greater number within their particular States but will be unable to spread of citizens and extent of territory which may, be brought a general 'conflagration through the other States. A reli within the compass of republican than of democratic gious sect may degenerate into a political faction in a government; and it is this circumstance principally which part of the Confederacy; but the variety of sects dis renders factious combinations less to be dreaded in the persed over the entire face of it must secure the national former than in the latter. The smaller the society, the councils against any danger from that source. A rage for fewer probably will be the distinct.parties and interests paper money, for an abolition of debts, for an equal composing it; the fewer the distinct parties and interests, division of prop�rty, or for any other improper or the more frequently will a majority be found of the same wicked project, will be less apt to pervade the whole party; and the smaller the number of individuals compos body of the Union than a particular member of it, in the ing a majority, and the smaller the compass within which sarrie proportion as such a malady -is more likely to taint they are placed, the more easily will they concert and a particular county or district than an entire State. execute their plans of oppression. Extend the sphere and In the extent and proper structure of the Union, there you take in a greater variety of parties and interests; you fore, we behold a republican remedy for the diseases make it less probable that a majority of the whole will most incident to republican government. And according have a common motive to invade the rights of other to the degree of pleasure and pride we feel in being citizens; or if such a common motive exists, it will be more republicans ought to be our zeal in cherishing the spirit difficult for all who feel it to discover their own strength and supporting the character of federalists. PuBLius and to act in unison with each other. Besides other impedi ments, it may be remarked tjlat, where there is a conscious ness of unjust or dishonorable purposel';, communication is always checked by distrust in proportion to the number whose concurrence is necessary. Hence, it clearly appears that the same advantage which a repvblic has over a democracy in controlling the effects of faction is enjoyed by a large over a small republic-is enjoyed by the Union over the States com posing it. Does this advantage consist in the substitution of representatives whose enlightened views and virtuous No. 51: THE STRUCTURE OF THE GovERNMENT sentiments render them superior to local prejudices and MUST FuRNISH THE PROPER CHECKS AND to schemes of injustice? It will not be denied that the BALANCES BETWEEN THE DIFFERENT DEPARTMENTS representation of the Union will be most likely to pos sess these requisite endowments. Does it consist in the (MADISON) greater security afforded by a greater variety 'Of parties, against the event of any one party being able to outnum To WHAT expedient, then, shall we finally resort, for ber. and oppress the rest? In an equal degree, does the maintaining in practice the necessary partition of power increased variety of parties comprised within the Union among the several departments as laid down in the Con increase this security? Does it, in fine, consist in the stitution? The only answer that can be given is that as greater obstacles opposed to the concert and accomplish all these exterior provisions are found to be inadequate ment of the secret wishes of an unjust and interested the defect must be supplied, by so contriving the interior 17 18 19 322 THE FEDERALIST p APERS individuals are prompted, by the uncertainty of their condition, to subll}it to a governmenf which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popu No. 84: CERTAIN GENERAL AND MISCELLANEOUS lar form of government within such narrow limits would OBJECTIONS TO THE .CONSTITUTION CONSIDERED be displayed by such reiterated oppressions of factious majorities that some power altogether independent of ,, AND ANSWERED (HAMILTON) the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of IN THE course of the foregoing review of the Constitu it. In 'the extended republic of the United States, and tion, I have taken notice of, and endeavored to answer among the great variety of interests, parties, and sects most of the objections which have appeared against it. which it embraces, a coalition of a majority of the whole There however remain a few which either did not fall society could seldom take place on any other principles naturally under any particular head or were forgotten in than those of justice and the general good; whilst there their proper places. These shall now be discussed; but being thus less danger to a minor from· the will of a as the subject has been drawn into great length, I shall major party, there must be less pretext, also, to provide so far consult brevity as to comprise all my observations for the security of the former, by introducing into the on these miscellaneous points in a single paper. government a will not dependent on the latter, or, in The most considerable of these remaining objections other words, a will independent of the society itself. It is ·that the plan of the convention contains no bill of is no less certain than it is important, notwithstanding rights. Among other answers given t0 this, it has been the contrary opinions which have been entertained, that upon different occasions remarked that the constitutions the larger the society, provided it lie within a prlfcticable of several of the States are in a similar predicament. I sphere, the more duly capable it will be of self add that New York is of this number. And yet the op government. And happily for .the republican cause, the posers of the new system, in this State, who profess an practicable sphere may be carried to a very great extent unlimited admiration for its constitution, are among the by a judicious modification and mixture of the federal most intemperate partisans of a bill of rights. To justify principle. PuBuus their zeal in this matter they allege two things: one is

20 21 22 23 24 25 520 THE FEDERALIST PA PERS of additional expense from the establishment of the pro posed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to 186 the purposes of the Union. PuBuus Founding Father

everyone carves for himself. But the likeness is there, because children grow up, and because great men and rulers are still men. Washington's chosen form of fatherhood complemented Brookhiser, Richard. Founding Father: Rediscovering his political theory and his manners. The rights of man and the George Washington, pp. 185-191. rules of civiliryurged him to the conclusion that he should be the father of a country whose people would rule their own lives. The most theatrical and theater-loving of presidents kept FATHER OF HIS COUNTRY quoting Addison, but he could have seen more of himself, and his choice of fatherhood, in Shakespeare. KingLear, even with its eighteenth-century happy ending, is a tragedy that is set in motion when a political father steps aside incompletely, with The kind of fatherWashington sought to be was the out realizing the implications of the act. " ... 'tis our fast in tent/ To shake all cares and business from our age,/ Conferring father who, when his children become adults, lets them go. them on younger strengths," Lear announces in the first scene, That was the differenceb etween him and a Patriot King, apa and proceeds to divide his kingdom among his daughters. But triarch, or a master. Such political fathers may rule badly or a few speeches later, he adds a condition: he will keep his royal title and one hundred knights. It doesn't work, because it wisely, but they rule for life. Washington stepped aside, not, as Paine believed, because all fathersdo , but because he chose to. couldn't. Goneril and Regan, the wicked daughters, did not have to throw him out into a storm, but even if they had been He was conscious of the momentousness of the choice. The Cordelias, he could not have continued to keep power over United States should not be leftt o prove, he wrote Lafayette in them after giving it up. 1788, that "Mankind [was] madefo r a Master."' After years of The Tempest, which Washington saw in Dryden's version and hesitation and denial, he gave up slavery,the last formof mas to which he alluded in letters, is the dream version of a father and a ruler stepping aside; perhaps because it is a dream, it goes tership in his life. better. Prospero, the duke/magician driven into exilebefore the A political father who steps aside does so because he sees the play begins, rules withhis charms his daughter, the rebellious likenessbetween himself and his countrymen. It is an incom subjects who have fallen into his hands, a spirit, and a slave; the plete likeness in many ways, for political as for acrual fathers. problems of politics, and family politics, are transmuted into Children knowless than their parents, average men are inferior symbols and managed by magic. But in the last act, Prospero releases everyone, with full consciousness of what he is doing. to great men, and citizens cannot have exactly the same duties His daughter will marry, Ariel will vanish, Caliban and his en and powers as rulers, unless there is no government at all, and emies, all chastened, will be pardoned. "My charms I'll break,

185 26 187 188

Father of His Country Founding Father

their senses I'll restore,/ And they shall be themselves." Wash cies of life, are now by the late satisfactory pacification, ac ington dealt with men in all their gnarled reality, not arche knowledged to be possessed of absolute freedom and Indepen types. Even so, he found the way to let go successfully. dency; They are, from this period, to be considered as the Living after Washington, and under the principles he up Actors [the favoritemetaphor] on a most conspicuous Theatre,· held, we think of !erring go as the easy choice, yet it could not which seems to be peculiarly designated by Providence for the have been. Retirement is a foretasteof mortality. ("Now he ter display of human greatness and felicity; Here, theyare not only rifies me," Rilke would write of Prospero: "The way he draws/ surrounded with every thing which can contribute to the com the wire into his head, and hangs himself/ beside the other pletion of private and domestic enjoyment, but Heaven has 2 puppers.... ") It is no accident that resignation means leaving crowned all its other blessings, by giving a fairer oppertunity office and accepting fate. How difficult resignation must have for political happiness, than any other Nation has ever been fa been for a man who loved uniforms, activity, and office as vored with." much as he loved his vine and fig tree-for though he always Washington has set a scene of thousands of miles and meta came back ro Mount Vernon, he always left it, when the call physical importance, for he has established North America as came. How much more difficultit must have been when, in or the stage and Providence as the producer. But he also, at the der to work out the moral proposition to which he had com end, introduces a human concept, "political happiness," which mitted himself, he proposed to let most of Mount Vernon go. is the business of the next sentence. But Washington was not the only one for whom letting go "Nothing can illustrate these observations more forcibly, c was difficult; it was difficult forhis contemporaries and for the than a reollection of the happy conjuncture of times and cir unborn millions.When a political fatherlets go, then his polit cumstances, under which our Republic assumed its rank ical children are on their own, with all the uncertainty that en among the Nations; The foundation of our empire was not laid tails. Washington foresaw their situation in the third paragraph in the gloomy age of Ignorance and Superstition, but at an of his first Farewell Address, the Circular to the States. In a life Epocha when the rights of mankind were better understood time of solid paragraphs, buttressed with precise, sometimes and more clearly defined, than at any former period; the re intricate, clauses, this is the most carefully wrought, as well as searches of the human mind, airersocial happiness, have been the most startling. It is worth quoting in full, because it is carried to a great extent; the Treasures of knowledge, acquired about us. through a long succession of years, by the labours of Philoso The paragraph consists of only three sentences, the first two phers, Sages and Legislatures, are laid open for our use, and of them enormously long. It opens with a panoramic establish their collected wisdom may be happily applied in the Estab ing shot. lishment of our forms of Government; the free cultivation of "The Citizens of America, placed in the most enviable con Letters, the unbounded extension of Commerce, the progres ditions, as the sole Lords and Proprietors ofa vast Tract of Con sive refinement of Manners, the growing liberality of senti tinet, comprehending all the various soils and climates of the ment, and above all, the pure and benign light of Revelation, World, and abounding with all the necessaries and convenien- have had a meliorating influence on mankind and increased the blessings of Society." 27 189 190

Father of His Country Founding Father

He is like a lawyer, enumerating bequests, or a team oflong "disgust[ing]." The Roman Republic had fullen. There were a shoremen, tirelessly loading a ship. He began by giving us a few republics in recent European history, none of them large. continent and invoking Providence; here he credits to our ac The United Netherlands collapsed in 1787; France would have count the rights of man, abstract and practical knowledge, the a revolution in 1789, Santo Domingo (or Haiti) in 1791- arts, trade, good behavior, and Christianity(so long as it is not hardly encouraging examples. Like Unitarians in theology, superstitious). Now for the climax: Washington as a political philosopher believed in at most one "At this auspicious period, the United States came into exis right form of government. tence as a Nation, and if their Citizens should not be com Washington was also saying that responsibility forthe exper pletely freeand happy, the fault will be intirely their own. "3 l iment's success was only partly his. He would do what he The shock of this sentence is party stylistic. After its long could. When he distributed the Circular to the States, he be compound predecessors, as relentless as breakers on a beach, it lieved that his task as a founder and fatherwas done. It turned seems terse, almost curt. The real shock is the thought. After out to be less than half done. But even when it was finished, it such a stem-winding warm-up, we expect an affirmation; a was only all that he could do. The rest was up to the "Citizens keynote speech to end all keynotes; Fourth of July rhetoric of America'; is up to us. When he passed through Trenton on seven years afrer the first Fourth of July, when it was still fresh. his way to his first inauguration, the hopeful banner over the Instead, we get a warning so blunt that it is almost a rebuke. bridge at Assunpink Creek said that the defender of the moth With so many blessings, how could we fail? Easily enough, he ers would be the protector of the daughters. He cannot protect tells us; see that you don't. the daughters of the daughters. It is one of the most sobering moments in any major Amer This may be the deepest source of our distance from him ic.an speech-even more sobering than the bleak mysticism of the resentment and puzzlement that come from being let go. Llncoln's Second Inaugural. Washington is saying that Amer He seems cryptic, like an oracle that has fallen silent. We feel ica's political success is problematic. In saying so, he fingers a bereaved. He fought for self-government; we govern ourselves; paradox in the doctrine of namral rights. If you believe in the what now? rights of man, you believe that they are grounded in nature- Henry Adams Qohn's great-grandson) captured this sense of that they are, as Jefferson put it, "inalienable." But that does abandonment in a recollection of his first visit to Mount Ver not necessarily mean-and Washington did not believe--that non, which he had made in 1850, when he was rwelve years establishing a government based on those rightsis easy, or even old. The mansion was a pilgrimage site, and a move to restore possible. This is why, in his First Inaugural Address, six years it had begun. So had the final struggle berween slave statesand later, he spoke of the "Republican model of government" in its free states. The road young Adams took from Washington, American form as an "experiment." It was as much of an ex D.C., to Mount Vernon was bad. "To the New England periment as Franklin's keyand his kite; more so, since Franklin mind ... [b]ad roads meant bad morals. The moral of this Vir was prettysure beforehand that the key would glow. Washing ginia road was clear. . . . Slavery was wicked, and slavery was ton was not sure that the United States would work What were the cause of this road's badness which amounted to social the precedents? The Greek example, as Hamilton said, was 28 191

Father of His Country crime-and yet, at the end of the road and product of the crimestood Mount Vernon and George Washington." Adams is having fun with the certainties and the perplexities of his preadolescent self But the perplexities were real, andlater he strikes a more anxious note. Washington was "like the Pole Star.... Mount Vernon alwaysremained where it was, with no practicableroad to reach it." Adams put his memory ofthe un reachable Washingtonin the context of the debate over slavery, where Washington's accomplishment was entirely private and the least useful publicly. But the feeling ofloss and withdrawal clings to the entire career of a political father like Washington. He committed few blunders, and no crimes. He performed every taskthat came to him, even retirement. His character, as Jefferson put it in his final, measured judgment, "was, in its 4 mass, perfect, in nothing bad, in few points indifferent." Is that all? What good does that do us when we are grown, and he is gone? It is easier to deal with the legacies of heroes whose careers have been cut short. Murder wasa great boost to the reputa tions of Martin Luther King, Jr., and Abraham Lincoln. Even the death of sixty-two-year-oldFranklin Roosevelt seemed un timely, because it occurred in office. Sudden death leaves room for fantasy. What ifLincoln had presided over Reconstruction? WouldRoosevelt have foughtthe ColdW{ir? Martyrs become our companions; they keep us in thrall.When a hero concludes his career and Nature concludes his life, we feel excluded. One way we try to keep in touch with the famous dead is through their words. If their words ring in our ears, we can talk with them in our imaginations. This is why the eloquent fareso well in American history: Lincoln foremost, with Jefferson a close second; Hamilton, Madison, and perhaps Franklin lead ing the pack. It will be interesting to see what survives of the fireside chats when the last Americans who heard them have 29 Brookhiser, Richard. James Madison, pp. 98-107. 99

TheFirst Political Party

Madison and Jefferson embarked on their undeclared mission in the late spring of 1791. They took a trip through New York and New Englandnorth from New York City ro Lake Champlain, then back via

Vermont, Massachusetts, Connecticut, and Long Island. They fished for trout and shot squirrels. Jefferson ordered trees from a nursery and Madison took the longest open-water voyage of his life-across Long Island Sound. They investigated the Hessian fly, a grain pest, at the behest of the American Philosophical Society Oefferson was one of its vice presidents). One of Hamilton's friends,Robett Troup, a New York lawyer, thought they were up to more than that. "There was every appearance of a passionate courtship between the Chancellor, Burr, Jefferson and Madison when the two latter were in town," Troupwrote Hamilton. The chancellor ofTroup's letter was Robert Livingston, who presided over New York's Court of Chancery. Livingston was a disappointed man. He had not gotten any post in the Washington administration. AB partial compensation, he had expected one of New York's Senate seats to be awarded to a member of his large, powerful family. But Hamilton had arranged with the state legislature, which made the selections, for one seat to go to Hamilton's father-in-law, Philip Schuyler, and the other to go to one of Hamilton's friends from the Constitutional Convention, a transplant from Massachusetts no less, Rufus King. Livingston had been an ally of Hamilton's in the fight to ratify the Constitution in New York state, but once he felt disrespected, that was that. Livingston began to get his own back in January 179 I, when Schuyler was up for a new term. (The first senators had drawn lots to pick short or long terms, so that their tenure would be staggered.) This time Livingston teamed with Governor George Clinton to throw Schuyler out of office. The man who benefited from this maneuver was Aaron Burr, a thirtyfive-year-old veteran and lawyer. He had attended Princeton with Madison, though they seem not to have known each other well there. Burr's father had been president of Princeton a decade before John Witherspoon,

30 IOO TheFirst Political Party IOI

JAMES MADISON andhis maternalgrandfather was the great theologian Jonathan Edwards. he knew people's handwriting. "From hints dropped," he learned when Burr's own talents ran to wit, reading, litigation, and politics, and in Hamilton had been writing pseudonymous essays for rhe newspapers; recognition of the last, Livingston and Clinton tapped him to replace another time he "happened to see" a manuscript in rhe handwriting of Schuyler in the Senate. one of Hamilton's clerks---anorher clue. Gentlemen would not read orher Biographers of Madison and Jeffersondeny that the northern vacation people's manuscripts, but rhey would read analyses of rhem by people was about anything except relaxing in the beauties of nature. But some times contemporaries see what is under their noses. If the two Virginians who had. wantedto exert a new forcein national politics, they could not do it alone. Beckley knew people's business, and shared what he knew. "The fol They needed allies-peers in other states who shared their views, or their lowing list of paper men is communicated to me by Mr. Beckley," wrote enemies. Jefferson, Madison, Livingston, and Burr had all clashed with Jefferson, on a document in his own hoard of intelligence (paper men Hamilton or his father-in-law. "Delenda est Carthago,"Troup told Hamil were congressmen who were invested in U.S. securities, and thus be ton, was "the maxim adopted with respect to you." Every educated person holden to Hamilton's wiles). It was Beckley who gave Madison rhe fateful then knew at least some Latin; you didn't have to know much to under stand the old slogan, Carthagemust be destroyed. copy of Rightsof Man, and he gave both his exalted colleagues advice (all A party is made of more than just leaders. Another way that Madison rhe more welcome because it confirmedwhat rhey already believed). "It and Jeffersonbuilt their partywas to find instruments-like-minded men, would be wise to be watchful ... of this extraordinary man," he wrote not peers, who could do the work, much of it tedious, some of it dirty. Madison of Hamilton. "[He has] a comprehensive eye, a subtle and con John Beckley had come to Virginia in 1769, the same year that Madi tinuingmind and a soul devoted to his object." Madison and Jefferson, son went to Princeton, as an indentured servant, sent from England be inrum, introduced Beckleyto allies of theirs: a letter of introduction to cause his parents were too poor to support him at home. He rose in the world thanksto his clear hand and clear reading voice. He clerkedfor Ed Burr described Beckley as "possess[ing] rhe confidence of our two illus mund Randolph and the Vuginialegislature, and wanted to clerk forthe rriouspatriots, Mr. Jefferson and Mr. Madison." e Constitutional Convention, though Madison told Randolph that the job No politiciancan do everyrhing himsl£ He needs intermediaries, and would go to someone "more conspicuous." Beckley tried to make himself eyes and ears. Beckley filledall rhree functions. more conspicuous by getting elected to the Virginia ratifying convention, Another man rhe illustrious patriots turned to was a sometime peer, as the owner of some land in a remote western county, but he failed. He for he had known Madison at Princeton, though he had since come down did serve as the convention's secretary, and in April 1789 (this time with Madison's help) he won thejob of his life, clerk of the House of Repre in life: he was a journalist. sentatives. "Beckley Clerk," Madison noted in a letter to Randolph. Philip Freneau, a descendant of Huguenot merchants, went to Prince Once he was at the center of things, Beckley made himself useful to ton to studyfor the ministry. There he met, in addition to Madison, rhe his Virginia patrons. He dealt with House documents and printers, and muse.

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c diversity: Political Political moved he their

try

enter

artisans him

books "mansions

"the

who sentiments" the (Bridewell merchants; less

points, a written had

might cities

that that industries than Madison

were were

"the and and northern

in p and Urban a

little Party

fall, rise had f

market

the e

to there,

the contrast mere

for and

and

merchants."

in peoples

his

"The "The employed consumption

be be

Philadelphia of and presented presented task" three

when

a n of of early future nd life

was allies factory manufacturers manufacturers manufacturing cultivators, calculated of

vulnerable vulnerable

wretchedness" wretchedness" forces. forces.

ation depended and vacation. of

more spirit

was made

of of

those weeks

... spring

in a

either

1 7 he as reference:

studying

insecure a he London 9 of of workers workers making making

the of

than

began I, I, "who them

after with with that told and of the the the He He on ro3 to a I 32 JAMES MADISON TheFirst Political Party

Madison admitted that human fertility caused overpopulation, freedom by keeping in touch with one another, and with their own which tended to flow into cities. His safety valve was principles (via the National Gazette and like-minded emigration-from Europe to America, and from the eastern states newspapers). They should also keep watch over possible to new states and territories farther west. This tracked his years-long backsliders and seducers (Adams and Hamilton). Madison called for "a general intercourse of sentiments ... interest in opening the Mississippi River valley. Population control favorable to liberty." "Let it be the patriotic study of all ... to erect provided a rationale for the second plank of Madison's platform: over the whole [ country] one paramount empire of reason, westernexpansion. benevolence and brotherly affection." Then "every good citizen will He also made a bold prediction: the American and French be ... a sentinel over the rights of the people." "Every citizen shall

Revolutions might put an end to war. Kings fought wars to gratify be an Argus to espy" threats to his rights. (Argus was a their ambitions. Republics would not have that temptation, and, as hundred-eyed giant of Greek mythology.) their peoples became more rational, they would no longer fight to Public opinion was so important that Madison felt entitled to gratify popular animosities. The "progress of reason" was "the only correct Montesquieu, everyone's favorite political philosopher. hope of UNIVERSAL AND PERPETUAL PEACE" (caps in the Montesquieu had proposed a classification of all governments into original). three kinds, each infused with a different spirit. Despotisms ran on fear, monarchies depended on honor, republics relied on virtue. This was another hit at Hamilton, for surely Madison Madison respectfully proposed his own tripartite system. Despotisms remembered that only four years earlier, his then-friend had were ruled by force. Sham republics were ruled by corruption, with written Federalist #6, a survey, as grim as it was brisk, of ancient bounties and bribes upholding "the real domination of the few'' and modern wars. Hamilton found republics as bellicose as (Hamilton and his paper men). Finally, true republics were ruled by monarchies. "Are not the former administered by men as well as the an interplay berween government and society: the "will" of society latter? ... Is it not time to awake from the deceitful dream of a gave government its "energy," while government's "reason" instructed golden age'' and admit "that we ... are yet remote from the happy society's "understanding." Public opinion was a loop, sustaining empire of perfect wisdom and perfect virtue?" Remote indeed. In leaders even as they shaped it. "Such are the republican April 1792, France, Austria, and Prussia went to war, inaugurating governments which it is the glory of America to have invented, and two decades of universal bloodshed. her unrivalled hap-" pmess to possess. The most interesting thoughts in Madison's National Gazette Madison denied that his party was partisan at all. He blamed partisanship on his rivals, chiefly Adams (without naming him, essays concerned public opinion (one of his essays was tided though the reference was clear). The vice president's fascination with simply "Public Opinion"). Americans already had a titles and hereditary succession had introduced "new vices" into rough-and-ready appreciation of public opinion: Why else did American political discourse. Madison admitted in passing that it they write so much forthe newspapers? Madison wanted to define might be necessary ro create "one party [i.e., his own]" to be "a its political and constitutional role. check on the other." But the blame would rest with Adams and his He had touched on the importance of public opinion in The ilk, who had started the escalation in the first place. Federalist, when he remarked that better transportation would strengthen the "cords of affection'' that bound Americans together. But the main guarantee of liberty he had put forward as Publius had been the very complexity of the government, and of the country itself. Now, four years later, he relied instead on public opinion. Americans could maintain their

33 106 TheFirst Political Party 107 JAMES MADISON

Most of the planks of Madison's platform were old ideas put to new uses. Poets had sung the virtues of rural life since ancient now believed in more than popular choice. He wanted the people to be Greece and Rome (since the emergence of cities, in fact). consulted between elections, continually. They would be his partners in Americans had been champing to push westward since they were colonists clinging to the easte rn seaboard. American history had government. It was an insight appropriate to a family man, to the ideal been punctuated by conflict, and with the right leaders partner of so many other founders. Madison put his faith in Argus. Americans could fight well. But Madison knew from his revolutionary experience that they tired of long wars. His He flattered his audience, playing to their pride. (When Argus was thoughts on public opinion, however, were something new in killed by Hermes, Hera put his hundred eyes in the peacock's tail.) But political theory: an expression, and a defense of populism. Madison knew from long experience that pride is a factor every good Madison scholars spend relatively little time on his National Gazette essays, and those who study them do not ask why they are politician takes into account. so ignored. One reason surely is their quality. Th ey are short, but This is why Madison would win the battles of the next nine years, not sweet. The writing is crude, and so are many of the thoughts. Madison relies on clanging verbal chimes (see however often he lost. This is why Hamilton's arguments, however per Bridewells and Bedlams, above). One almost feels he is writing suasive, never won the larger contest for popular favor. Hamilton focused down, as if for readers who move their lips as they read. Madison wrote better than Adams, but that was a low bar. For on opinions-his own, and those of his enemies----and whether they years his foil, politically and journalistically, would be Hamilton. were right or wrong. Madison understood public opinion. Hamilton was not a great writer (the four great writers of the founding were Jeffer son, Franklin, Paine, and Gouverneur Morris). But he was energetic, prolific, and versatile. Sometimes he wrote too much, and too vividly, for his own good. But he never sank to the childish level of the National Gazettepieces. Yet Madison was not writing for the ages. He was not really writing to win specific argument s. He was getting his thoughts in order-laying out issues for the years and decades to come, identifying his enemies and ways to attack them. He did what every party platform does---he pointed with pride, and he viewed with alarm. Most important, he was bringing his readers into the process. All Americans believed in government based on popular choice. Even Hamil ton, arguing at the Constitut ional Convention for an executive elected for life, pointed out chat he would be elected. Even Adams, toying with hereditary succession, expected an elected bicameral legislature. Madison 34 Brookhiser, Richard. Alexander Hamilton, American, pp. 93-97.

ernment fled the Philaddphia summer. .,\ll but Hamilton, who sta ye d in. artisans and farmers--led to greater concentration and skill. town to .,.,:;tk on his third great report. which he p r¢sented to Co n gi:¢ss Machines were "an artificial force brought in aid of the nacural at the end of the year, Formall y , he was . res po ndin g to a re q uest made by rorce of man" ("unencumbered;' he noted, "by the expense of the House in Janu ary 1790 that he prepare .a plan tomaknhe United maintaining the laborer"). Manufacturing encouraged the StateS "inde pe ndent ofother nations , ..• fur military s up p lies."i 7 What immigration of skilled workmen and businessmen-an he ga ve them, in his "Report on Manufactt1tes," delivered in December important point in a still-barren country. l 79 l, was another window on his vision for Amerlca. Two ofHamili:on's proofs strike a modern earas unsayably Hamilton's research into the subject went bru:k to his da ys as. a , blunt. Manufa=ring increased "the surplus produceof the soil. ..• colond, jotting down facts from. Malach y Postlethwayt in his old pa y The bowels as well as the surfue of the earth are ransan. He .also relied on the arguments of the man who had re p laced pried the idle out of the home. "Women and children are rendered William Duer as assistant treasuty secre tary , the Philadd p hia merchant . more useful, and the latter more early useful, by manufacturing establishments, than th would orherwise be. Of the number of Tench Coxe. Coxe had been a Tory durin g the earl y years of:the war: ey after Hamilton had . warned Con g ress to .flee Philadelphia in I 777, prnonsemployed" in British cotton mills, he went onenthusiastically, Coxe had reentered his hom<:town with the British arm But he had "it is computed that fuur sevenths, neatly, ate women and children, y. ofwhom the greatest proportion are children, and many of them of a converted to p atriorism, and even smu g gled a model of Arkwright's tender age:' Later, he called the 1ibot of women and children "a vety s p innin g je nny out of Britain aim the,war. Cotton was rhe keystone of pregnant andinstructive fu:t."29 British manufacturin g. and securing a model of British machinery was Opinions on both nacure and the fact system were about an impqrtant act.of industrial es iona , In 1787, Coo: wrote An En ory p gi: to gechan , or.,,.re already thanging. in ways that would make these �ry into rl:e Prin,1pl,s on Wbidi a Commertial Symtnfor 1/,, Unir,J Stat,, oJ Amw- · sencl,. ments seem widced, or bizarre. Only seven years after im Sboi,/J Be &m,l,,I, in which he .argued that manufactures might be "the Hamiltonwrote, William Wordsworth would findature inn means of our POLITICAL SALVATION.'' 211 The dx,,ar, of "!1 J1"fffl thought,, the _,,, TheguiJe, At his ina ugur ation. George Washington had worn a suit � Con the iang,,ard of nry 1-t, ,ma necticut broadcloth in symbolic support for American manufa.:ruring, ,mJ qf all !I?)' moral "mt but there was as yet little ro support. The great majority of An:ierka.ns But Hamilton thought "ransack(ing]" it fur items of "utility" was were farmers. In the cities, where there was a.class of people engaged in a good thing. Simila:dy, the cha:,ge that nineteenth-century socialists business, merchants and their employees oumumbmd manufacturers and reactionaties alike would huri against the fu:tory system like a 3Ild artisans. Hamilton and Coxe. were a,guing a minority case. battering ram--that it employed women and children-awakened The "Ri:port on Manufactures" was in two parts-visionary and no pm:nonitory echo in him. So impervious was he to it that he programmatic, The more important visionary part was offered as an used � in adiscussion of womanand child labor with no sense answer to rhe question whether manufacturing added to "the produce of rhetorical disso nance. Hamilton was writing from his awn and revenue" of society or whether it merdy,diverted useful·effort . experience: he grew up in· one o9f4 the garden spots of the earth, but from agriculture, Hamilton listed seven proofs fot the productivity of its beauty had meant nothing for most of the people who lived manufacturing. The division of labor-,-among artisans, and between . there, because of the l""'ertJI and 93 35 lower

run, ner.) (Hamilton

ingly pe turers cially investors. pected ginall have future ri essential Hugh American sp his . . . . E distinctive degradation and only liw effort." vigor when "Minds and in ery,

dividual

titions irit

a ry

, and

character.

The

merchants,than The

but

exen

nation was

been

very

because

that

of them

lligo,'-these all

when Knox had

with Hamiltons.

the

less

his

argued

can

enterprise

the labor

balance

acknowled

two poor

Government new

buried itself.

children,

oe modern some

as DNA or as DNA

necessary

prop

ually

the

permanen

the

bounties, remarkable,

nature:'

find

different of

forei

remainin

scene A

without cultivators

strongest

their eno

that overcomin

osed erior is

been

luck in

his

important, diverse

the

are

...

ge St.

and

the

Bury,

com

which

condition.

governments

tly to

d skill

and

roper kinds

different or

addition

all

Croix. g

must

the

effect,

p would a

that

their

use

he,

p ital

over

nation and

subsidies.

rou.s�

econo p

etition

g and

Hamiltonian

roofs

rotectionists work:

ort

folds

and

Trearnry-

have

element,

with of protective

such

time. mothers,

most

Hamilton

hel

merchants;

exm, energy, iffart,en p sketched

the

indus

men,

Hamilton, my

come less

maturi

diverse

ened

confined

also

gone

among

all his

regulations

obstacles

cultivators,

active

Bounties

the Nicholas

in a

awarded by

he Su1etary

try

new

and

to the

reflect

from

Hamilton

tariffs

encouraging

ear.

argued.

how

obtain econo

disown

narion

wanted

" touchstones,

domestic

intelli

can

p energy

work

less the

owers

though

domestic

But

busy

Hamilton's

unco

which

this

were, bounties

call

forei

Cruger

same?

raised

ge in

artificers,

him

the

develops

nce

to tnpris

might

...

himself

into nge

mere

gn manufacturers

devel

not

improve

communi nation

nine:

"generall ture arise

the

sparingl

domestic

prices

became as a as nial full

and

banks

producers--espe

and

field

activi �

cultivators,

be general

stron

experience,

and

from

below

pursuits.

had

why

false might talents,

sociery.

the raded

man to done.

their

in markings the ty

g,,st y

and

individuals.

--oo

merchants

cultivators

been

the

manufac

the

Reverend

the

, shouldn't

p forerun

odds

medioc

stock

attiw,

each

for

forei eakin to

own.

would

whole

short

co "Th

touse spa

[But]

mar

slav

than

him

and

for

in at•

g, r. 30

Jerse

River River

ton ton

nicked nicked

house: house:

to to ( (

planned planned

sey's sey's

ments. ments.

the the

ton ton

Philadel

along along

hars hars

Hall, Hall,

property property

sen sen

Philadelphia, Philadelphia,

Hamilton's Hamilton's as as

more more

established established

on on

ject ject

of of the the

oftentimes oftentimes

whether whether

eration eration

immediate immediate

drawn drawn

ort: ort:

m. m.

the the

when when

treasury treasury

the the

to to

falls, the falls,

A A

and and

had had

other other

The The

like like

y y

to to

invested invested

the the

was, was,

in in

and and

overnor overnor

the the

plan plan

private private

preside preside

coastal coastal

there there

In In

up up

awa

seen seen

Coxe, Coxe,

iron wire. wire. iron

to to

ractical ractical

Paterson Paterson

northeastern northeastern

American American

bounties bounties

hia hia

taxes, taxes,

report report

the the

Society Society

hand, hand, Potomac, Potomac,

gratitude, gratitude,

who who

Leave Leave

at at

problems problems

by by

develo

necessar

must must

secretary, secretary,

the the

). ).

the the

socie

mone

roj

to to

spat spat

venture venture

the the

over over

( (

in in

was was

The The

Hamilton) Hamilton)

the the

and and

lain, lain,

was was

ects. ects.

"in "in

side. side.

river river

the the

nation's nation's

and and

the the

almost almost

it it

( ( ty ty

p p

Constitutional Constitutional

should should

for for

y y

in in

the the

alread

the the

capitalists capitalists same same

The The

q pe

new new

seven· seven·

was was

already already

swamps swamps

to to

the the

propased propased

men. men.

location location

fif

Altxander·Hamilton, Altxander·Hamilton,

There There

uestion uestion

that that

Jul

the the

Hamilton Hamilton

drops drops

in in

New New

rpe

31 31

Establishing Establishing

he he

board board

industrial industrial

ty ty

me. me.

y y

hired hired

society society

Walliam Walliam

ca y y

latge

undertakings, undertakings,

The The

charter charter

alwa

society society

tual tual

end. end.

feet feet

the the

had had

Pierre Pierre

hundred hundred

I I 778,

under under

Jerse

ital ital

seven

were were

at work work at

Some Some

of of

ve ve

of of

would would

of of

were were

society society

freedom freedom

to to

in in

scale scale

implied implied

Continuin

s s

bargained bargained to to

Maryland. Maryland.

directors, directors,

flit flit the the

named named

its its

be be

asked, asked,

cities cities

L'Enfunt, L'Enfunt,

after after

one one

gran

lay lay

Convention). Convention).

. . ty ty

together together

some some

Paterson Paterson

Hamilton Hamilton

96 96

read

roduce roduce

modern modern

from from

future future

acres acres

..• ..•

Useful Useful

manufacturing, manufacturing,

y y

society society

feet feet

not not

out out

on on

encountered.

before before

steep steep

ted ted

the the

of of

resolution, resolution,

without without

from from

its its

problems problems

, ,

from from

Paterson. Paterson.

g g

Philadelphia Philadelphia plans plans

beside beside

uestionable;' uestionable;'

New New

in in

ey ey

American

et et

a a

it it

by by

economic economic

battle battle

a a

site site were were

them them

who who

--historians --historians

collection collection

swoo Manufactures. Manufactures.

a a

the the

a a

are are

ran

away away

Hamilton Hamilton

taxes taxes

and and

·fair ·fair

the the

ten-

e e

the the

Paterson, Paterson,

for for

William William

can can

ge ge

I I 790s,

had had

answerin

as as

had had remodeled

the the

"on "on

of of

Washington Washington

. .

State State g

trial, trial,

with with

from from

of of

as as

justifiable justifiable

As As

the the

on on

land land

ear ear

Using Using

Monmourh Monmourh

falls falls

mag

most most

center.

propased propased

manufactures manufactures

lanned lanned

items, items,

it it

of of

to to

a a irs irs

he he

exe

new new

s s

have have

to to

delivered delivered

because because

them, them,

soldier, soldier,

were were

often often

of of

New New

g Duer Duer

ine ine

New New

Princeton, Princeton,

after after

of of

of of capital capital

admitted. admitted.

, ,

sustain sustain

the the

ambitious ambitious

The The

the the

New New

the the

federal federal

from from

he he that

the the

as as

still still

tion tion

y y

York York

uestioned

New New

power power

was was

York, York,

the the

had had

Hamil

they they

of of

interior

Hamilc

Federal

Passaic

Court

society

his his

invest

eciall

estion

a a

Jersey

a a

straw straw

New New

from from

more more

cho

long long

with with

pic

pro

and and

gen

Jer and and

was was

On On

are are

of of

to to of of ty ty

0 0

y y

Treasur y Surttar y

Hamilton's passionate anal ys is of economic divecsity refutes charge that he was a tool of the rich-as well as the nobler estimate, that he was a p ragmatist, using the economy to cement the union. "[Y]ou wanted to organize the countr y ;• wrote William Caclos Williams, author of Patmon, the modernist epic poem about the ci ty Hamilton created, "so that we should all/stick to g ether and make a little mone y ." 32 Hamilton certainly was pra gm atic. "Ideas of conttatie ty of inter ests" between the North and the South, he wrote hopefully in his re po rt. ate "as unfounded as th ey ate mischievous, The diversi ty of circumstances" between the regions in fact leads to a "contrar y conclu sion:' because "mutual wants constitute one of the strongest links of political connection." 33 If the South wanted to be a re gi on of farms, let the North supply her hats and wire. But he was also, and primarily, an idealist. Havin g risen from island pov er ty , he never fu rgo t that economies ate about the p e op le who wotk in them. Like revolutions, they m1.1St compensa te fur whatever evils the y produced by "bring[ing] to light talents and virtues which mi g ht ot het wise have lan gui shed in obscuri ty :' The "Re po rt on Manufactutes" was Hamilton's p rogram for universalizin g the rrajectory he had outlined in his eul og y of Nathanael Greene in St. Paul's Cha pe l two and a half yeats eaclier.

Hamilton was busy with one other activi ty in the second half of 1791, - which also rellected his e xp erience and his chatacrer. He began an affair with a married woman. Sometime in Jul y , when Betsey had left the hot, unhealthy ci ty to stay with her family in upstate New York. a Mrs. Maria Reynolds called at the Hamilton residence. She was twen ty -thtee y eats old--eleven ye ats youn g er than Hamilton--and came from a res p ectable New York family (het brother-in°law was a minor Livin g ston). Two extended de scri p tions of Mrs. Reynolds sutvive, both written y eats-!ater-one by Hamilton himself; one by Richatd Folwell, a Philadel p hia p ublisher who was briefl y her landlord. Hamilton mentions her "simplicity and 97 37 Session 2 Recommended Reading de Tocqueville, Alexis. “On the Omnipotence of the Majority in the United States and its Effects.” Democracy in America Volume One, Part Two, Chapter 7.

38 39 40 41 The Omnipotence of the Majority 254 Democracy in America 255 n n n n n n passiven age ts a d is glad to leaven them then troublen ofn carryi g out i depe de ce of mind and true freedom of discussion than in Amer its pla s. It therefore does not e ter by a ticipatio i to the details ica. n of their duties and hardly takes the trouble to definen their rights. There is no religiousn orn political theory which o e cannot preach It treats them as a master might treat his serva ts if, always freelyn in the co stitutio al states of Europe or which does not seeingn themn act under his eyes, he could direct or c9rrect them at pe etrate into the others, for there js no country in Europe so n n n a y mome t. n subject to a single power that he who wishes to speak the truth In general, the law leaves America officials much freer than ours cannot find supportn e ough to protect himn against the co seque ces n within the sphere marked out for them. Sometimes the majority mayn of his independe ce. If he is unlucky e ough to live under an I n n evenn allown them to go beyond that. Assured of the viewsn a d absolute government, he ofte has the people with him· if he n n stre gthe ned by the supportn of, the greatest number, they the dare lives in a free country, he may at eed find shelter behi d the royal to do thi gs which asto ish a European, accustomed though he be auth��ty. I democratic cou tries the aristocracy may support him, andn m other lands the democracy. But in a democracyn organizedn to the nspectacle of arbitrary power. Thus habits form in freedom that may o e day Qecome fatal to that freedom. o the model nof then United States there is only o e authority, o e source of stre gth a d of success,n and nothing outsiden it. J.I!.,.America-th ma 'ori e closed thou ht withi a formidable The Power Exercised by the Majority in America over Thought fence. A writern is free inside thatn area, but woe nto auto-da-fe man e, w o n n n In the United States, when th'e majority has irrevocably decided g"oes7beyo d it. Not that he sta ds in fear of a but about any question, it is no longer discussed. Why? Moral au he xpust face all kinds of u leasa t ess and e n · non. thority exercised by the majority over thought. Democratic re- A career in po tics 1s c osed to n· , for he has offen ded then o nly publics have turned despotism into something immaterial. power that holds the keys. He is de ied everything, i cluding re ow . Before he goes into print, he believesn he has supporters; but he n n n feels that he has them no more o ce he stands revealed to all, for those who co demn him express their views loudly, while those It is when o e comes nto look i to the use made of thought in who think as,he does,n but without his courage, retreat into silence the United States that no e most clearly sees how far the power of as if ashamed of havi g told the truth. n the majority goes beyo d all powersn knownn to us in Europe. Formerlyn tyranny used the clumsy weapons of chains and ha g Thought is an invisible power a d o e almost impossible to lay me ; nowadays even despotism,n though it seemedn to have nothing hands on, which makes sport of all tyrannies. In ourn day the most l gns more to learn,.has bee perfected by civilizatio . absolute soverei in Europe cannot prevent certai thouglits nhostile to their power from silei;itly circulating in their states and eve in Princes made violence a physical thing, but our contemporary democratic republics have turned it into something as intellectual he!r own courts.n It is not like thatn in America; �jarn n ity ! ::::...; as the humann will it is intended to constrain. Under the absolute 1S 1n do�ub�t o!!i ..1,alks · bunt whe it�hasn wirre:y;vog&.WJ:)f-pllllM;O U!.!;�c�ed, � : � � � �f!; � � � � � � �� !!j governme t of a single JI}an, despotism, ton reach the soul, clumsily everyone is silent:, and frie s an e emies aliken seem to make for struck at the body, and the soul, escapi g from such blows,n rose its bandwagon.n The reason is simple: no.n mo archn isn so ·absolute gloriously above it; but in democratic republicsn thatn is ot at all that he ca hold all the forces of society i his ha ds a d overcome how tyranny behaves; it leavesn nthe body alo e a d goes straight all resistance,n as a majority ninvested with the righ� to make the for the soul. The master o lo gern says: "Think like me or youn laws a d to executen them, ca do. n n die." He does say: "Yo).! are free ot to think as I do; you ca n]Joreover,n n a ki g's power is physicaLonly, co trolli g actions but keepn your life and property nand all; but from this day you are na ot ue ci g desires, wnereas lb.!! majority is inyestedn :wi.th_!>oth' � stra ger among us. You ca keep your privileges in the tow physical and moral authority, whigi..AGts-as-much µpo the will nas ship, nbut they will be useless to you, for if you solicit your fellow u ehavior and at the same t prevents �e act a d � � citize s' votes, they will not give them to you, and if you only Jlie...desil:e to do...it. n ask for their esteem, they will zpa.ke excuses for refusing that. You , I know no country i which, speaking generally, there is less

42 43 44 45 Session 2 Recommended Reading

The Rise and Rise of the Administrative State Author(s): Gary Lawson Source: Harvard Law Review, Vol. 107, No. 6 (Apr., 1994), pp. 1231-1254 Published by: The Harvard Law Review Association Stable URL: http://www.jstor.org/stable/1341842 . Accessed: 28/08/2014 13:33

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46 This content downloaded from 128.122.149.145 on Thu, 28 Aug 2014 13:33:11 PM All use subject to JSTOR Terms and Conditions This content downloaded from 128.122.149.145 on Thu, 28 Aug 2014 13:33:11 PM All use subject to JSTOR Terms and Conditions 47

This content downloaded from 128.122.149.145 on Thu, 28 Aug 2014 13:33:11 PM All use subject to JSTOR Terms and Conditions 48 1236 HARVARD LAW REVIEW [Vol. 107:1231 gives Congress power to enforce that Amendment's numerous sub stantive constraints on states;31 and the Sixteenth Amendment permits Congress to impose direct taxes without an apportionment require ment. 32 These are important powers, to be sure, but they do not fundamentally alter the limited scope of Congress's power over private conduct. Of course, in this day and age, discussing the doctrine of enum erated powers is like discussing the redemption of Imperial Chinese bonds. There is now virtually no significant aspect of life that is not in some way regulated by the federal government. This situation is not about to change. Only twice since 1937 has the Supreme Court held that a congressional statute exceeded the national government's enumerated powers, 33 and one of those holdings was overruled nine years later. 34 Furthermore, both cases involved the direct regulation of state governments in their sovereign capacities. To the best of my knowledge, the post-New Deal Supreme Court has never invalidated a congressional intrusion into private affairs on ultra vires grounds; instead the Court has effectively acquiesced in Congress's assumption of general legislative powers. 35 The courts, of course, are not the only, or even the principal, interpreters of the Constitution. Under the Constitution, it is em phatically the province and duty of the President to say what the law

31 See id. amend. XIV, § s. 32 See id. amend. XVI. Other amendments also grant power to Congress. See id. amend. XIX, cl. 2 (giving Congress the power to enforce a prohibition on gender-based discriminatory voting practices); id. amend. XXIII, § 2 (giving Congress the power to enforce the District of Columbia's participation in the electoral college); id. amend. XXIV, § 2 (giving Congress the power to enforce a prohibition against poll taxes); id. amend. XXVI, § 2 (giving Congress the power to enforce a prohibition against denying eighteen-year-old people the vote on account of age). 33 See New York v. United States, rr2 S. Ct. 2408, 2428-29 (1992); National League of Cities v. Usery, 426 U.S. 833, 852 (1976). 34 See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 1 531 (1985) (overruling Usery). 35 See, e.g., Perez v. United States, 402 U.S. 146, 156-57 (1971) (holding the Consumer Credit Protection Act to be within Congress's power to regulate interstate commerce); Wickard v. Filburn, 317 U.S. 111, 128-29 (1942) (holding regulation of the production of wheat grown for personal consumption to be within Congress's power to regulate interstate commerce). The lower federal courts have basically followed suit, though there has been a modest counterrevo lution in the past two years. See Hoffman Homes, Inc. v. Administrator, United States EPA, 961 F.2d 13101 1311 (7th Cir.) (stating that the EPA could not regulate, as "wetlands" subject to the Clean Water Act, a small depression that occasionally filled with rainwater), vacated, 975 F.2d 1554 (7th Cir. 1992); United States v. Cortner, 834 F. Supp. 242, 244 (M.D. Tenn. 1993) (holding that Congress could not make carjacking a federal criminal offense, because the activity "lacks any rational nexus to interstate commerce"); cf. United States v. Lopez, 2 F.3d 1342, 1366-68 (5th Cir. 1993) (holding that Congress could not, in the absence of explicit legislative findings of an effect on interstate commerce, prohibit knowing possession of a firearm within 49 one thousand feet of a school). 123!! HARVARD LAW REVIEW l VOi. 107:1231 1994] RISE OF THE ADMINISTRATIVE STATE 1239 the three Vesting Clauses in assigning responsibility for governmental functions that are not specifically allocated by the constitutional text. clearly some differentiation among the three governmental functions, Although the Constitution does not contain an express provision which at least generates some easy cases. Consider, for example, a declaring that the Vesting Clauses' allocations of power are exclu statute creating the Goodness and Niceness Commission and giving it sive,42 it is a mistake in principle to look for such an express decla power "to promulgate rules for the promotion of goodness and niceness ration. 43 The institutions of the national government are creatures of in all areas within the power of Congress under the Constitution." If the Constitution and must find constitutional authorization for any the "executive power" means simply the power to carry out legislative action. Congress is constitutionally authorized to exercise "[a]ll legis commands regardless of their substance, then the Goodness and Nice lative Powers herein granted," the President is authorized to exercise ness Commission's rulemaking authority is executive rather than leg "[t]he executive Power," and the federal courts are authorized to ex islative power and is therefore valid. But if that is true, then there ercise "[t]he judicial Power of the United States." Congress thus can never was and never could be such a thing as a constitutional principle not exercise the federal executive or judicial powers for the simple of nondelegation - a proposition that is belied by all available evi reason that the Constitution does not vest such power in Congress. dence about the meaning of the Constitution. Accordingly, the non Similarly, the President and the federal courts can exercise only those delegation principle, which is textually embodied in the command that powers vested in them by the Constitution: the general executive and all executory laws be "necessary and proper," constrains the substance judicial powers, respectively, plus a small number of specific powers of congressional enactments. Certain powers simply cannot be given to executive (or judicial) officials, because those powers are legislative outside those descriptions. Thus, any law that attempts to vest leg in character. islative power in the President or in the courts is not "necessary and A governmental function is not legislative, however, merely be proper for carrying into Execution" constitutionally vested federal 44 cause it involves some element of policymaking discretion: it has long powers and is therefore unconstitutional. been understood that some such exercises of discretion can fall within Although the Constitution does not tell us how to distinguish the the definition of the executive power. 46 The task is therefore to de legislative, executive, and judicial powers from each other,45 there is termine when a statute that vests discretionary authority in an exec utive (or judicial) officer has crossed the line from a necessary and 42 A number of state constitutions of the founding era did contain such express separation proper implementing statute to an unnecessary and/or improper del of powers provisions. The most famous example is the Massachusetts Constitution of 1780: egation of distinctively legislative power. While I cannot complete In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise that task here, the core of the Constitution's nondelegation principle the legislative and judicial powers, or either of them; The judicial shall never exercise can be expressed as follows: Congress must make whatever policy the legislative and executive powers, or either of them: To the end it may be a government decisions are sufficiently important to the statutory scheme at issue so of laws and not of men. that Congress must make them. Although this circular formulation MAss. CONST. of q8o, pt. I, art. 30; see also VA. CONST. of 1776 ,i 2 ("The legislative, 47 executive, and judiciary departments shall be separate and distinct, so that neither exercise the may seem farcical, it recognizes that a statute's required degree of powers properly belonging to the other.'). specificity depends on context, takes seriously the well-recognized dis 43 I am profoundly indebted to Marty Redish for this important insight. tinction between legislating and gap-filling, and corresponds reason 44 U. S. CONST. art I, § 8, cl. 18 (emphasis added). The word "proper" in the Sweeping ably well to judicial application of the nondelegation principle in the Clause provides the textual vehicle for enforcement of the Constitution's nondelegation principle. first 150 years of the nation's history. 48 If it does not precisely capture See Lawson & Granger, supra note 22, at 333-34. 45 See Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225, 256 ("[TJhe Constitution makes no effort to define the 'legislative/ 'executive,' and 'judicial' powers."). The framers harbored no illusions that these powers were self-defining. other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry . . ."). See generally William B. Gwyn, The Indeterminacy of the Separation of Madison, for example, observed in The Federalist: Powers and the Federal Courts, 57 GEO. WASH. L. REV. 474, 503 (1989). Experience has instructed us that no skill in the science of government has yet been able 46 to discriminate and define, with sufficient certainty, its three great provinces - the See Paul M. Bator, The Constitution as Architecture: Legislative and Administrative _ Courts Under Article Ill, leg�slative, executive, and judiciary .... Questions daily occur in the course of practice 65 IND. L.J. 233, 264 (1990). which prove the obscurity which reigns in these subjects, and which puzzle the greatest 47 Circularity of this kind is neither fatal nor unprecedented. For example, under relevant adepts in political science. (and correct) case law, a federal employee is an officer subject to the Appointments Clause, THE FEDERALIST No. 37, at 228 (James Madison) (Clinton Rossiter ed., 1961). The problem U.S. CONST. art. II, § 2, cl. 2, if he or she is sufficiently important to be subject to the of distinguishing the three functions of government has long been, and continues to be, one of Appointments Clause. See Lawson, supra note 41, at 865 n.63. the most intractable puzzles in constitutional law. See Wayman v. Southard, 23 U.S. (10 48 For a description and analysis of the case law on nondelegation, see Cynthia R. Farina, 50 Wheat.) 1, 46 (1825) ("[T]he maker of the law may commit something to the discretion of the Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REv. 11.i:2. A'18-88 (roRo) 1240 HARVARD LAW REVIEW 1994] RISE OF THE ADMINISTRATIVE STATE 1241 the true constitutional rule of nondelegation, it is a plausible first approximation. 49 The rationale for this virtually complete abandonment of the non In any event, it is a much better approximation of the true con delegation principle is simple: the Court believes - possibly correctly stitutional rule than is the post-New Deal positive law. The Supreme - that the modern administrative state could not function if Congress Court has not invalidated a congressional statute on nondelegation were actually required to make a significant percentage of the fun grounds since 1935.50 This has not been for lack of opportunity. The damental policy decisions. Judicial opinions candidly acknowledge this rationale for permitting delegations. For example, the majority United States Code is filled with statutes that create little Goodness in Mistretta v. United States56 declared that "our jurisprudence has and Niceness Commissions - each confined to a limited subject area 2 been driven by a practical understanding that in our increasingly such as securities 51 broadcast licenses,5 or (my personal favorite) complex society, replete with ever changing and more technical prob imported tea. 53 These statutes are easy kills under any plausible lems Congress simply cannot do its job absent an ability to delegate interpretation of the Constitution's nondelegation principle. The Su pow;r under broad general directives. "57 When faced with a choice preme Court, however, has rejected so many delegation challenges to between the Constitution and the structure of modern governance, the so many utterly vacuous statutes that modern nondelegation decisions 4 Court has had no difficulty making the choice. now simply recite these past holdings and wearily move on. 5 Any Contrary to conventional wisdom, neither did the Reagan and thing short of the Goodness and Niceness Commission, it seems, is Bush administrations. Neither President Reagan nor President Bush permissible. 55 ever vetoed or opposed legislation on the express ground that it vio lated the nondelegation doctrine. Nor, to my knowledge, did the 49 Marty Redish has independently formulated a very similar principle for distinguishing the Reagan-Bush Justice Departments ever formally make such an objec legislative and executive powers, which he calls the "political commitment principle." See tion to proposed or actual legislation. 58 MARTIN H. REDISH, THE CONSTITUTION As PoLITICAL STRUCTURE (forthcoming 1994) (manu Thus, the demise of the nondelegation doctrine, which allows the script ch. 5 1 at 2-4, on file with author). This principle requires of valid legislation "some national government's now-general legislative powers to be exercised meaningful level of normative political commitment by the enacting legislators, thus enabling by administrative agencies, has encountered no serious real-world legal the electorate to judge its representatives." Id. ch. 5, at 4; see also David Schoenbrod, The or political challenges, and none are on the horizon. Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REv. 1223, 1252-58 (1985) (distinguishing between statutes that prescribe rules of conduct and invalid statutes that merely state legislative goals). C. The Death of the Unitary Executive so See Schechter Poultry Corp. v. United States, 295 U.S. 495, 541-42 (1935); Panama Article II states that "[t]he executive Power shall be vested in a Refining Co. v. Ryan, 293 U.S. 388,430 (1935). The Court does occasionally invoke delegation 59 concerns in the course of statutory interpretation. See, e.g., Industrial Union Dep't, AFL-CIO President of the United States of America." Although the precise v. American Petroleum Inst. (Benzene), 448 U.S. 607, 646 (1980) (plurality opinion) (holding contours of this "executive Power" are not entirely clear, 60 at a mini that an OSHA statute, if interpreted broadly, would be a sweeping and unconstitutional dele mum it includes the power to execute the laws of the United States. gation of power). SI See 15 U.S.C. § 78j(b) (1988) (proscribing the use or employment, "in connection with the purchase or sale of any security . . . , [ of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [Securities and Exchange] Commission a range of subjects. See Industrial Union Dep't, AFL-CIO v. American Petroleum �nst. (Ben may prescribe as necessary or appropriate in the public interest or for the protection of inves zene), 448 U.S. 607, 646 (1980) (plurality opinion) (narrowly construing the Occupational Safety tors"). and Health Act because a broad construction would give the Secretary of Labor "unprecedented 52 See 47 U.S.C. § 307(a) (1988) (prescribing that the Federal Communications Commission power over American industry" and would thus constitute "such a 'sweeping delegation of shall grant broadcast licenses to applicants "if public convenience, interest, or necessity will be legislative power' that it might be unconstitutional") (quoting Schechter Poultry Corp. v. United served thereby"). States, 295 U.S. 495, 539 (1935)). SJ See 21 U.S.C. § 41 (1988) (forbidding the importation of "any merchandise as tea which "488 U.S. 361 (1989). 57 Id. is inferior in purity, quality, and fitness for consumption to the standards" set by the Secretary at 372. ss David Schoenbrod has documented that President Reagan never vetoed a bill on nonde of Health and Human Services). legation grounds nor did his Justice Department ever oppose such legislation. See David S4 See, e.g., Touby v. United States, III S. Ct. 1752, 1756 (1991); Skinner v. Mid-America Schoenbrod, How the Reagan Administration Trivialized Separation of Powers (and Shot Itself Pipeline Co., 490 U.S. 212, 218-24 (1989); Mistretta v. United States, 488 U.S. 361, 378-79 in the Foot), 57 GEO. WASH. L. REV. 459, 464-65 (1989). I have confirmed that this same (1989). fact is true of the Bush administration through my own recollections and those of several Bush ss The problem with the Goodness and Niceness Commission under current law {if indeed administration officials and by consulting published opinions of the Office of Legal Counsel. there is a problem) would be that it had been delegated too much of Congress's power in one 59 U.S. CONST. art. II, § 1, cl. r. fell swoop. Modem law, in other words, will permit Congress to create a set of miniature 60 See Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Ex 51 Goodness and Niceness Commissions, no one of which has authority over all aspects of life, but ecutive, Plural Judiciary, 105 HARV. L. REv. II53, II77 n.II9 (1992). would likely balk at a single agency exercisin� unconstrained legislative authoritv over too broad 1242 HARVARD LAW REVIEW [Vol. 107:1231 1994] RISE OF THE ADMINISTRATIVE STATE 1243 Other clauses of the Constitution, such as the requirement that the vests "the executive Power" directly and solely in the person of the President "take Care that the Laws be faithfully executed, "61 assume President. Accordingly, scholars sometimes deny that the Article II and constrain this power to execute the laws, 62 but the Article II Vesting Clause is a grant of power to the President to execute the Vesting Clause is the constitutional source of this power - just as laws, 68 but none has yet adequately rebutted the compelling textual the Article III Vesting Clause is the constitutional source of the federal and structural arguments for reading the Vesting Clause as a grant of 63 9 judiciary's power to decide cases. power6 - a grant of power specifically and exclusively to "a President Significantly, that power to execute the laws is vested, not in the of the United States." executive department of the national government, but in "a President Thus, the important question is what form the President's power 4 of the United States of America. "6 The Constitution thus creates a of control over subordinates must take in order to ensure a constitu unitary executive. Any plausible theory of the federal executive power tionally unitary executive. There are two evident possibilities. First, must acknowledge and account for this vesting of the executive power the President might be thought to have the power personally to make in the person of the President. all discretionary decisions involving the execution of the laws. On Of course, the President cannot be expected personally to execute this understanding, the President can step into the shoes of any sub all laws. Congress, pursuant to its power to make all laws "necessary ordinate and directly exercise that subordinate's statutory powers. 70 and proper for carrying into Execution" the national government's Second, one might think that, although the President cannot directly powers, can create administrative machinery to assist the President in exercise power vested by statute in another official, any action by that carrying out legislatively prescribed tasks. But if a statute vests dis subordinate contrary to presidential instructions is void. 71 Either al cretionary authority directly in an agency official (as do most regula ternative is plausible, though the latter is perhaps more consistent tory statutes) rather than in the President, the Article II Vesting Clause with Congress's power under the Sweeping Clause to structure the 7 seems to require that such discretionary authority be subject to the executive department. 2 President's control. 65 This model of presidential power is not without its critics. Indeed, most contemporary scholars believe that Congress may vest discre 68 See Lessig & Sunstein, supra note 66, at 46-52; McGarity, supra note 66, at 466; Rosen tionary authority in subordinate officers free from direct presidential berg, supra note 67, at 1209. 69 Steve Calabresi has recently formulated and marshalled these arguments. See Calabresi, 66 control, and early American history and practice reflect this view to supra note 63, at 4-22; Steven G. Calabresi, The Trinity of Powers and the Lessig/Sunstein 7 a considerable extent. 6 Nonetheless, the Vesting Clause inescapably Heresy passim {March 6, 1994) (unpublished manuscript, on file with the Harvard Law School Library). I can here summarize only a few of Professor Calabresi's arguments. First, the Sweeping Clause gives Congress power to carry into execution "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." 61 U.S. CONST. art. II, § 3, cl. 3. U.S. CONST. art. I, § 8, cl. 18 (emphasis added). In view of this language, it is very hard to 62 See Calabresi & Rhodes, supra note 60, at n98 n.221. argue that the Article II Vesting Clause does not vest powers. Second, a close textual and 63 See Steven G. Calabresi, The Vesting Clauses As Power Grants, 88 Nw. U. L. REv. structural comparison of Articles II and III demonstrates that the Vesting Clauses in each Article (forthcoming 1994) (manuscript at 2, on file with the Harvard Law School Library). serve the same function. Inasmuch as the Article III Vesting Clause must be read as a grant 64 U.S. CONST. art. I, § 1, cl. r. of power to courts to decide cases rather than as merely a designation of office, the Article II 65 The qualifier "discretionary" is important. If a statute requires a ministerial act, such Vesting Clause must also be a grant of power. Third, the Article II Vesting Clause is the only that a writ of mandamus would properly lie to compel its performance, it does not matter in plausible source of a constitutional power to execute the laws. The only other conceivable whom the statute vests power. See Kendall v. United States, 37 U.S. (12 Pet.) 524, 610-13 source of such a power - the Take Care Clause, U.S. CONST. art II, § 2, cl. 3 (declaring that (1838). the President "shall take Care that the Laws be faithfully executed") - is worded as a duty of 66 See, e.g., Thomas 0. McGarity, Presidential Control of Regulatory Agency Decisionmak faithful execution rather than as a grant of power. ing, 36 AM. U. L. REV. 443, 465-72 (1987) (arguing that Congress "may provide that the 1o See Calabresi & Rhodes, supra note 60, at 1166. President may not substitute his judgment .. . for that of the official to whom Congress has 11 See id.; Lee S. Liberman, Morrison v. Olson: A Formalist Perspective on Why the Court delegated decisionmaking power"); cf. Lawrence Lessig & Cass R. Sunstein, The President and Was Wrong, 38 AM. U. L. REv. 3r3, 353-54 (r989). the Administration, 94 CoLUM. L. REV. 1, 55 {1994) (claiming that, under an originalist 12 The executive power, unlike the legislative and judicial powers, has always been under interpretation of the Constitution, "Congress has wide discretion to vest . . [administrative stood to be delegable by the President. See Mistretta v. United States, 488 U.S. 361, 424-25 powers] in officers operating under or beyond the plenary power of the President"). (1989) (Scalia, J., dissenting); 2 ANNALS OF CoNG. 712 (1792) ("[I]t is of the nature of Executive 67 Several legal scholars have compiled impressive lists of historical materials suggesting that power to be transferrable to subordinate officers; but Legislative authority is incommunicable, many early legal actors and writers did not contemplate any wide-ranging presidential power of and cannot be transferred.') (statement of Representative Findley). Accordingly, if the President supervision. See Lessig & Sunstein, supra note 66, at 15-17; Morton Rosenberg, Presidential can directly exercise all powers vested by statute in executive officials, the President can Control of Agency Rulemaking: An Analysis of Constitutional Jssues That May Be Raised by presumably designate any subordinate official to exercise that power. Thus, if a statute vests 52 Executive Order 12,291, 23 ARiz. L. REV. 1199, 1205-10 (1981). authority to promulgate standards for workplace safety in the Secretary of Labor, the President 1244 HARVARD LAW REVIEW [Vol. 107:1231 1994] RISE OF THE ADMINISTRATIVE STATE 1245 Congress and the President have fought hard in recent years over control of the federal administrative machinery, and the courts have have accordingly been spending a great deal of energy arguing about adjudicated such disputes in some high-profile cases. 73 Significantly, something of relatively little constitutional significance. The death of the unitary executive cannot be traced to the New however, neither of the two possible constitutional mechanisms of Deal revolution. The First Congress, in the so-called Decision of 1789, presidential control has played a role in those battles. No modern engaged in one of the most spirited and sophisticated debates on judicial decision specifically addresses the President's power either executive power in the nation's history, but did not once focus on a directly to make all discretionary decisions within the executive de presidential power to make discretionary decisions or to veto actions partment or to nullify the actions of insubordinate subordinates. In by subordinates. 75 Moreover, many Attorneys General in the nine stead, debate has focused almost exclusively on whether and when teenth century affirmatively denied that the President must always the President must have unlimited power to remove subordinate ex have the power to review decisions by subordinates. 76 The absence ecutive officials. That is an interesting and important question, but of a functioning unitary executive principle, however, may well have it does not address the central issue concerning the executive power. made the Revolution of 1937 possible. Judging from the political Even if the President has a constitutionally unlimited power to remove conflict that is often generated by disputes between Congress and the certain executive officials, that power alone does not satisfy the Article President, it is at least arguable that Congress would never have II Vesting Clause. If an official exercises power contrary to the Pres granted agencies their current, almost-limitless powers if Congress ident's directives and is then removed, one must still determine recognized that such power had to be directly under the control of whether the official's exercise of power is legally valid. If the answer the President. 77 is "no," then the President necessarily has the power to nullify discre Although the Reagan and Bush administrations often fought hard tionary actions of subordinates, and removal is therefore not the Pres to defend their views of the proper role of the President, they did not ident's sole power of control. If the answer is "yes," then the insu directly assert their power to invalidate discretionary actions of sub bordinate ex-official will have effectively exercised executive power ordinates or to make discretionary executive decisions when statutes contrary to the President's wishes, which contravenes the vesting of confer power directly on subordinates. Opinions of the Office of Legal that power in the President. A presidential removal power, even an Counsel from the Reagan-Bush era have sometimes insisted that unlimited removal power, is thus either constitutionally superfluousor congressional attempts to place executive authority beyond presidential constitutionally inadequate. 74 Congress, the President, and the courts superv1s1on are unconstitutional, 78 but neither President Reagan nor President Bush ever made either of the two plausible conceptions of could, on this understanding, personally assume that power and then delegate it to the Secretary of Defense. Perhaps this is the correct view of the President's power, but it seems more plausible to suppose that Congress can at least determine which subordinate officials, ifany, are permitted power does not ensure compliance with the Article II Vesting Clause, any such inference of a to exercise delegated executive powers. See Geoffrey P. Miller, The Unitary Executive in a constitutionally based presidential removal power seems hard to justify. Unified Theory of Constitutional Law: The Problem of Interpretation, 15 CARDOZO L. REV. 201, 75 See I ANNALS OF CONG. 384-4121 473-6081 614-31, 635-39 (1789). Should this fact give 205 (1993). On this supposition, if a statute vests power to promulgate workplace standards in pause to advocates of the unitary executive? Probably, although the framers' silence is not the Secretary of Labor, the President cannot personally promulgate safety standards nor desig decisive in the face of compelling textual and structural arguments for presidential control of nate anyone other than the Secretary of Labor to perform that task, although the President can execution. In order to establish that something is the original meaning of a constitutional issue instructions - including instructions so detailed that they take the form of regulations - provision, one needs to show that the general public would have acknowledged that meaning with which the Secretary of Labor must comply if he or she is to act at all. as correct if all relevant arguments and information had been brought to its attention. Actual

13 See, e.g., Morrison v. Olson, 487 U.S. 6541 696-97 (1988) (upholding the constitutionality instances of usage (or non-usage) are therefore probative but not dispositive. of the independent counsel provisions of the Ethics in Government Act); Bowsher v. Synar, 478 76 See, e.g., 18 Op. Att'y Gen. 31, 32 (1884); 11 Op. Att'y Gen. 14, 15-19 (1864); 1 Op. U.S. 714, 721-27 (1986) (striking down a provision of the Gramm-Rudman-Hollings Act that Att'y Gen. 624, 625-29 (1823). But see 6 Op. Att'y Gen. 326, 339-46 (1854) (disavowing the gave the Comptroller General a role in the appropriations process). reasoning and conclusions of these opinions). 74 It is therefore constitutionally nonexistent as well. The only mode of removal specifically 77 See Merrill, supra note 45, at 253-54. Nor is it obvious that courts would have validated mentioned in the Constitution is impeachment. See U.S. CONST. art. II, § 4. Accordingly, one limitless delegations directly to the President rather than to "expert, non-political" agencies. could reasonably believe: that impeachment is the only permissible form of removal, that 78 See 15 Op. Off. Legal Counsel 81 16-17 (1991) (construing a statute to permit the Secretary Congress's power to create offices carries with it the power to prescribe the form of removal, of Education to review decisions of administrative law judges on the ground, inter alia, that or that the power of removal follows the power of appointment, so that if the Senate must foreclosure of review would be unconstitutional); 13 Op. Off. Legal Counsel 299, 306-07 (1989) consent to an officer's appointment, it must also consent to that officer's removal. See L·awson, (objecting generally to concurrent reporting requirements that allow agencies to transmit budget requests or legislative proposals to Congress without presidential review); 12 Op. Off. Legal supra note 411 at 883 n.172. One can infer a presidential removal power only by assuming that such a power is necessary in order to ensure a unitary executive. See Myers v. United States, Counsel 58, 60-71 (1988) (asserting the unconstitutionality of a congressional resolution requiring 53 272 U.S. 52, 132-35 (1926) (making such an inference). Inasmuch as even the strongest removal the Centers for Disease Control to mail AIDS information free from executive supervision). 54 1248 HARVARD LAW REVIEW 1994] RISE OF THE ADMINISTRATIVE STATE 1249 agency's side of the scale. I do not make this claim with full confi possesses a very strong presumption of correctness on matters both of dence (and thus do not emphasize the Reagan and Bush administra fact and of law. tions' failure to advance it), but it seems to me that Article Ill requires This is probably the most jarring way in which the administrative de novo review, of both fact and law, of all agency adjudication that state departs from the Constitution, and it typically does not even is properly classified as "judicial" activity. Much of the modern ad raise eyebrows. The post-New Deal Supreme Court has never seri ously questioned the constitutionality of this combination of functions ministrative state passes this test, but much of it fails as well. 9 in agencies. 7 Nor, to the best of my knowledge, did Presidents E. The Death of Separation of Powers Reagan or Bush ever veto or object to legislation on this ground. The constitutional separation of powers is a means to safeguard the liberty of the people. 92 In Madison's famous words, "[t]he accu II. WHAT ls TO BE DONE? mulation of all powers, legislative, executive, and judiciary, in the The actual structure and operation of the national government same hands, whether of one, a few, or many, and whether hereditary, today has virtually nothing to do with the Constitution. There is no self-appointed, or elective, may justly be pronounced the very defi 93 reasonable prospect that this circumstance will significantly improve nition of tyranny. » The destruction of this principle of separation in the foreseeable future. If one is not prepared (as I am) to hold fast of powers is perhaps the crowning jewel of the modern administrative to the Constitution though the heavens may fall, what is one supposed revolution. Administrative agencies routinely combine all three gov to do with that knowledge? ernmental functions in the same body, and even in the same people 94 One option, of course, is to argue directly that the Constitution, within that body. properly interpreted in accordance with its original public meaning, Consider the typical enforcement activities of a typical federal is actually flexible enough to accommodate the modern administrative agency - for example, of the Federal Trade Commission. 9S The state. But although some of the claims I make in Part I with respect Commission promulgates substantive rules of conduct. The Commis to Articles II and III may ultimately prove to be wrong in some sion then considers whether to authorize investigations into whether If important respects, the most fundamental constitutional problems with the Commission's rules have been violated. the Commission au modern administrative governance - unlimited federal power, ram thorizes an investigation, the investigation is conducted by the Com If pant delegations of legislative authority, and the combination of func mission, which reports its findings to the Commission. the Com tions in administrators - are not even remotely close cases. The mission thinks that the Commission's findings warrant an enforcement Commerce Clause does not give Congress jurisdiction over all human action, the Commission issues a complaint. The Commission's com activity, 98 and the Sweeping Clause does not give Congress carte plaint that a Commission rule has been violated is then prosecuted by blanche to structure the government any way it chooses. 99 the Commission and adjudicated by the Commission. This Commis sion adjudication can either take place before the full Commission or before a semi-autonomous Commission administrative law judge. If 9? See Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513, the Commission chooses to adjudicate before an administrative law 1556 (1991). judge rather than before the Commission and the decision is adverse 98 See supra p. 1234. to the Commission, the Commission can appeal to the Commission. 99 Although, as Lawrence Lessig and Cass Sunstein point out, the Sweeping Clause gives Congress substantial power to control the manner in which the executive department executes If the Commission ultimately finds a violation, then, and only then, the laws, see Lessig & Sunstein, supra note 66, at 66-69, that power is limited by the Sweeping the affected private party can appeal to an Article III court.96 But Clause's terms. Congress is permitted to create a particular governmental structure if, but only the agency decision, even before the bona fide Article III tribunal, if, other constitutional provisions or background understandings establish that such a structure conforms to a "proper" conception of separation of powers. See Lawson & Granger, supra note 2 2, at 333-34; see also Lessig & Sunstein, supra note 66, at 67 n. 2 78, 69 (noting that there are 92 See Calabresi & Rhodes, supra note 60, at u55-56. constitutional limits on Congress's power under the Sweeping Clause). Thus, the scope of 93 THE FEDERALIST No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961). Congress's power to structure the national government depends largely on the extent to which 94 See Sunstein, supra note 2, at 446-47. the Vesting Clauses of Articles II and III do or do not grant power to the President and the 9S See OFFICE OF THE FED. REGJSTER, NATIONAL ARCHIVES & RECORD ADMJN., UNITED federal courts, respectively - and thus do not or do leave governmental powers unallocated by STATES GOVERNMENT MANUAL 1993II994, at 612-17 (1993). the constitutional text. Accordingly, Professors Lessig and Sunstein's conclusion that "the framers "See FTC v. Standard Oil Co., 449 U.S. 232, 245 (1980) (refusing to permit judicial review wanted to constitutionalize just some of the array of power a constitution-maker must allocate, 55 of the filing of an administrative complaint on the ground that such agency action is nonfinal). and as for the rest, the framers intended Congress (and posterity) to control as it saw fit," id. 1250 HARVARD LAW REVIEW [Vol. 107:1231 1994] RISE OF THE ADMINISTRATIVE STATE 1251

A second option is to insist that the administrative state can be ratifications of the original Constitution and the Reconstruction reconciled with the Constitution if only we reject the methodology of Amendments were knowingly "illegal" under then-governing formal original public meaning. I cannot enter here into a discussion of norms for the ratification of fundamental law.103 The New Deal, he interpretative theory, but for those of us who believe that "a dash of 100 contends, reflected a similarly self-conscious rejection of the formal salt" refers to some identifiable, real-world quantity of salt, origi mechanisms for constitutional change. According to Professor Ack nalist interpretivism is not simply one method of interpretation among erman, if the formally deficient "ratifications" of the Constitution and many - it is the only method that is suited to discovering the actual 101 the Reconstruction Amendments are legally valid, it is difficult to see meaning of the relevant text. why the same cannot be true of the formally deficient "ratification" of A third option, pursued at length by Bruce Ackerman, is to argue the New Deal structure of governance via the 1936 election and the that the Constitution has been validly amended, through means other concomitant Revolution of I 93 7. than the formal process of Article V, in a fashion that constitution 102 I cannot here do justice to Professor Ackerman's elegant and still alizes the administrative state . Professor Ackerman claims that the growing edifice, so I will content myself with some preliminary thoughts. For purposes of constitutional interpretation, the creation at 41, ultimately rests, as a textual matter, on their argument that the Article II and Article III of the Constitution is the legal equivalent of the Big Bang; the Con Vesting Clauses are not grants of power, see id. at 46-52 - an argument that is very difficult stitution, whatever its normative significance may be, is an irreducible to sustain either textually or structurally. See supra note 69. fact from which constitutional interpretation proceeds. Accordingly, (Patty Granger and I are grateful to Professors Lessig and Sunstein for their generous use of our article on the Sweeping Clause in their recent work on the presidency. See Lessig & from an interpretative, as opposed to a justificatory, standpoint, ir Sunstein, supra note 66, at 41 n. 178, 6i n.278. At the risk of appearing to quibble in the name regularities in the Constitution's ratification validate further irregular of clarification, however: Professors Lessig and Sunstein cite our article, under a "see also" ities only if the original irregularity reflects a background principle signal, in support of the conclusion that the framers left the allocation of some important that was then incorporated into the Constitution and the subsequent governmental powers to "Congress (and posterity) to control as it saw fit." See id. at 41 n.178. irregularity conforms to that principle. Professor Ackerman's pro Our article neither directly supports nor directly rebuts such a claim of congressional power. It demonstrates that Congress can structure the government only through laws that are objectively posed method of constitutional amendment does not follow the form necessary and proper, see Lawson & Granger, supra note 22, at 276, but whether a particular of the background principle employed by the original ratifiers/usur governmental structure is "proper" depends on constitutional norms external to the Sweeping pers.104 Furthermore, if Professor Ackerman is correct that the Re Clause. Thus, as noted above, the soundness of Professors Lessig and Sunstein's conclusion construction Amendments were invalid under formal constitutional concerning congressional power depends largely on the soundness of their interpretation of the rules of ratification, the obvious conclusion seems to be that both the Article II and Article III Vesting Clauses. The phrase "necessary and proper" in the Sweeping and Clause is a neutral player in that dispute - although the Sweeping Clause's use of the phrase Reconstruction Amendments the modern administrative state are "powers vested" supports a power-granting construction of the Vesting Clauses. See supra note unconstitutional. 69. By way of further clarification: Professors Lessig and Sunstein cite - and endorse - our Professor Ackerman's response is that the formally deficient rati conclusion that the word "proper" in the Sweeping Clause constrains Congress's power, but with fications of the Reconstruction Amendments, which occurred under the proviso that they "do not agree that the clause is a limitation on Congress's power (rather the regime of the Constitution of 1789, "provide us with 'historic than a grant of power)." Lessig & Sunstein, supra note 66, at 67 n.278. In fact, on this point (as on many others), there is no disagreement among us. Ms. Granger and I emphatically maintain that the Sweeping Clause is a grant of power to Congress, see, e.g., Lawson & Granger, supra note 22, at 270, 276, 328, but insist that it is a grant of limited rather than stitutional Law, 99 YALE L.J. 453, 510-15 (1989) [hereinafter Ackerman, Constitutional Poli unlimited power.) tics}; Bruce Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 100 See supra note 1. 1051-57 (1984). 101 I suspect that this claim is controversial only because of a failure to distinguish between 103 The Constitution was ratified in a manner inconsistent both with the amendment process theories of interpretation and theories of adjudication. Imagine, for example, that a second specified in the Articles of Confederation and with the ratification procedures of a number of American revolution openly discards the Constitution, so that there is no chance that any state constitutions. The ratification of the Reconstruction Amendments involved something very conclusions about the Constitution's meaning could have any significant effects on the real close to vote fraud. See Ackerman, Constitutional Politics, supra note 102, at 500-07. world. In the absence of any plausible concern about the practical consequences of constitutional 104 Akhil Amar has argued that the ratification of the original Constitution was valid because interpretation (and putting aside for the moment the interpretative significance of precedent), it it was consistent with an accepted background norm for the ratification of fundamental law: seems inconceivable that one would even think to apply anything other than originalist inter ratification by direct majority vote of "We the People." That norm, he argues, is carried forward pretivism when interpreting the Constitution - just as no one would today think of interpreting in the existing Constitution as an unenumerated right of the people, so an amendment ratified the Articles of Confederation by any other method. In other words, I suspect that originalist by direct majority vote would be constitutionally valid. See Akhil Reed Amar, Philadelphia interpretivism is controversial only because its descriptive interpretative conclusions are widely Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. I043, ro44 (1988). thought to have prescriptive adjudicative consequences. This analysis, however, cannot save the administrative state, because no such amendment has 56 102 See ACKERMAN, supra note 3, at 34-57; Bruce Ackerman, Constitutional Politics/Con- ever been so ratified. HARVARD LAW REVIEW [Vol. 107:1231 1994] RISE OF THE ADMINISTRATIVE STATE 1253 precedents[]' [for such ratifications] which we are no more justified in and legislative vetoes is closer to the correct constitutional "baseline" ignoring than Marbury v. Madison.''105 But if precedent is a validat than is a world with only delegations.113 ing concept under the Constitution, why not invoke precedent more If there is any proper role for precedent in constitutional theory, straightforwardly? This suggests a fourth option for dealing with the Mccutchen is probably right: if an incorrect precedent creates a con modern administrative state: conclude, with Henry Monaghan, that stitutional disequilibrium, it is foolish to proceed as though one were because "[p]recedent is, of course, part of our understanding of what still in an equilibrium state. As discussed above, however, I do not law is,"106 the administrative state's firm entrenchment through prec believe that there is any proper role for horizontal precedent in con edent constitutes legal validation. I have elsewhere argued, however, stitutional theory.114 that the use of horizontal precedent in federal constitutional interpre There remains a sixth option: acknowledge openly and honestly, tation is itself forbidden by the Constitution.107 as did some of the architects of the New Deal, that one cannot have Those who believe in some form of precedent have the fifth option, allegiance both to the administrative state and to the Constitution. ingeniously advanced in a recent manuscript by Peter McCutchen, 108 If, however, one then further follows the New Deal architects in of seeking "a form of constitutional damage control. "109 According to choosing the administrative state over the Constitution, one must also McCutchen, the administrative state is here to stay, and even a very acknowledge that all constitutional discourse is thereby rendered prob weak theory of precedent ratifies this result. 110 But our goal, his lematic. The Constitution was a carefully integrated document, which theory continues, should be to approximate the "first-best" world as contains no severability clause. It makes no sense to agonize over the nearly as we can from within a state of constitutional disequilibrium. correct application of, for example, the Appointments Clause, the As Mccutchen puts it: Exceptions Clause, or even the First Amendment when principles as Where unconstitutional institutions are allowed to stand based on a basic to the Constitution as enumerated powers and nondelegation are theory of precedent, the Court should allow (or even require) the no longer considered part of the interpretative order. What is left of creation of compensating institutions that seek to move back toward the Constitution after excision of its structural provisions, however the constitutional equilibrium. The Court should allow such institu interesting it may be as a matter of normative political theory, simply tions even where the compensating institutions themselves would have is not the Constitution. One can certainly take bits and pieces of the been unconstitutional if considered standing alone.111 Constitution and incorporate them into a new, hypothetical document, but nothing is fostered other than intellectual confusion by calling that For example, the legislative veto, standing alone, is plainly unconsti new document the Constitution.115 112 tutional because it violates the Article I presentment requirement. Modern champions of the administrative state, however, seem But the legislative veto helps compensate for widespread, unconsti loathe to abandon the sheltering language of constitutionalism. But tutional delegations to agencies. A first-best world would have neither tactical considerations aside, it is not at all clear why this is so. delegations nor legislative vetoes, but a world with both delegations Perhaps instead of assuming that the label "unconstitutional" should carry normative weight, the constitutional problems of the adminis trative state can lead us to ask it should carry any weight - 10s whether Ackerman, Constitutional Politics, supra note 102, at 508 (paraphrasing Coleman v. with judges or anyone else. After all, the moral relevance of the Miller, 307 U.S. 433, 449 (1939)). 106 Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REv. Constitution is hardly self-evident.116 723, 748 (1988) (emphasis added). l07 See Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PuB. POL'Y 23, 25-33 (1994). It is perhaps a bit arrogant to toss off a proposition of this magnitude 113 See McCutchen, supra note 108, at 62-65. so casually, but the prima fade case against precedent is undeceptively simple: if interpreters 114 See supra note 107. have the power and duty to prefer the Constitution to statutes or executive acts because the 115 See Suzanna Sherry, An Originalist Understanding of Minimalism, 88 Nw. U. L. REv. Constitution is supreme law, they a fortiori have the same power and duty to prefer the 175, 182 (1993). Of course, there may be tactical reasons for casting normative political Constitution to prior judicial decisions. arguments in the (often unaccommodating) language of constitutionalism. If official actors or l08 Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: the public believe, or act as though they believe, that the Constitution matters, effective Toward a Constitutional Theory of the Second Best (October 20, 1993) (unpublished manuscript, rhetorical strategy requires that one couch arguments in constitutional language - and perhaps on file with the Harvard Law School Library). even that one lie about one's goa1s and methods. But truth-seekers have no interest in such to9 /d. at 3· rhetorical games. 110 See id. at 26-32. 116 See Gary S. Lawson, An lnterpretivist Agenda, 15 HARV. J.L. & PlTB. PoL'Y 157, 160- 111 Id. at 3, 4. 61 (1992); Larry Simon, The Authority of the Constitution and Its Meaning: A Preface to a 57 112 U.S. CONST. art. I, § 7, els. 2-3. Theory of Constitutional Interpretation, 58 S. CAL. L. REV. 603, 606-071 613-19 (1985). 58 Session 2 Recommended Reading

NATIONAL REVIEW ONLINE WWW.NATIONALREVIEW.COM PRINT MARCH 12, 2010 12:00 PM Our Subversive Founders A warning label on the Federalist Papers? It's not such a crazy idea.

By Fred Schwarz

Recently my colleague Jay Nordlinger wrote about a new edition of the Federalist Papers that comes equipped with a disclaimer for unwary readers:

This book is a product of its time and does not reflect the same values as it would if it were written today. Parents might wish to discuss with their children how views on race, gender, sexuality, ethnicity, and interpersonal relations have changed since this book was written before allowing them to read this classic work.

As the reader who tipped Jay off writes, “I will be rereading this work very carefully — it seems that the first few times through I’ve completely missed the sex!” To be sure, the Federalist Papers were written in the 1780s and embody the customs and beliefs of the times. “Man” is used generically to mean “person,” and the existence of slavery, while not endorsed, is accepted as a given (among other things, slavery was still legal in New York, whose citizens the papers were addressed to). If that bothers you, and your kids are sensitive and easily influenced, it might be a good idea to explain these points beforehand — subtly stressing the “sexuality” part if you want them to pay close attention.

Yet the warning is not as overblown as it seems, because the Federalist Papers do, in fact, contain messages that, if taken seriously by impressionable youths, could upset the very basis on which our society is founded. Consider, for example, this passage from the 23rd Federalist about the role of the federal government:

The principal purposes to be answered by union are these — the common defence of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.

Nothing in there about redistribution of wealth, insulating houses, selling insurance, running car companies, or making kids eat their vegetables. Imagine the mischief this antiquated line of thought could inspire! 59 Then there are these extracts, from the 32nd . . .

As the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

. . . and the 33rd:

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. . . .

It is said that the laws of the Union are to be the supreme law of the land. . . . But it will not follow from this doctrine that acts of the larger society [i.e. the Union] which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [i.e. the states], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.

A federal government with specified, limited powers — and a populace that treats a violation of these limits as usurpation! I need hardly explain the chaos that would result if Americans took this outdated notion to heart.

Yet another troublesome anachronism is found in the 41st:

It has been urged and echoed that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labour for objections, than their stooping to such a misconstruction.

The 18th century was a simpler time. Nowadays we live in a complicated world with many problems, and who better than the federal government to solve them all? That’s why enlightened modern judges interpret the General Welfare Clause to give Congress virtually unlimited power to do whatever it likes. Students should be cautioned in advance against swallowing Hamilton’s vigorously stated but naïve argument.

The 57th Federalist yields still more material that is distressing to modern sensibilities: 60 The House of Representatives . . . can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. . . . If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it.

If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.

The Founders didn’t understand that Congress does very important work — work that must not be hamstrung with rules that govern hiring practices, working conditions, affirmative action, freedom of information, and various other matters. Private citizens and businesses, on the other hand, being less vital to the nation’s well-being, can be freely regulated with little or no cost. Anyone who studies American government must be made to grasp this crucial distinction.

Strangest of all to modern ears is this passage, from the 81st, which summarizes and then refutes one objection to the proposed Constitution:

“The authority [opponents say] of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. . . . the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.” This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. . . . there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution . . .

Okay, now they’re getting ridiculous. Judges should be restricted to following a bunch of dumb old words written hundreds of years ago, instead of simply ordering what they know is best for the country? The publisher of this edition had it right — children need to be carefully warned against such dangerous thoughts.

– Fred Schwarz is a deputy managing editor of NATIONAL REVIEW. 61