Reflections on Constitutional Interpretation

Raoul Berger' I. INTRODUCTION Interpretation of the federal Constitution must proceed from three axioms; two were forcefully stated by Chief Justice Marshall: "[A]11 must admit, that the powers of the government are limited, and that its limits are not to be transcended."1 If the contrary be true, he declared, "then written constitutions are absurd attempts . . . to limit a power, in its own nature illimitable."2 Hence, as Richard Henry Lee stated in the Virginia Ratification Convention, "[w]hen a question arises with respect to the legality of any power, exercised or assumed," the question will be, "[ils it enumerated in the Constitution? ... It is otherwise arbitrary and unconstitutional."3 These were not mere philosophical abstractions but instead were a response to inescapable realities, which found expression in the third axiom, sharply articulated on behalf of the Court by Justice Brandeis: [T]he Constitution . . . preserves the autonomy and independence of the States; [federal supervision of their actions] is in no case permissible except as to matters . . . specifically . . . delegated to the United States. Any interference. . . except as thus permitted, is an invasion of the authority of the State[s].4 II. THE FRAMERS' DESIGN The fact, often overlooked or downplayed, is that the states preceded the nation and in truth created it,5 grudgingly surrendering to the federal newcomer only so much power as national purposes required. Let me brush in some facts. Two days before the Declaration of Independence, on July 2, 1776, Richard Henry Lee proffered a Resolution in the Continental Congress, "[t]hat the[] United Colonies are . . . free and independent States[,] . . . [t]hat a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation."s On November 15, 1777, the Congress recommended the Articles of Confederation to the states.7 Reciting that the members acted as "Delegates of the States affixed to our Names," Article II provided that "[e]ach state retains its sovereignty, freedom and independence" except as expressly delegated to the United States. Article III provided that "[t]he said states hereby severally enter into a firm league of friendship with each other, for their common defence."8 This constituted a league, not a nation. The drafters signed the Articles of Confederation on behalf of the individual states.9 Similar expressions are exhibited in the Treaty of Peace of September, 1783, with Great Britain.lo The Constitution itself was signed on behalf of the individual states, and in The Federalist No. 39, Madison was at pains to underscore that ratification "is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.... It is to be the assent and ratification of the several States."11 The mood was tellingly captured at the Convention by Washington: "[I]ndependent sovereignty is so ardently contended for . . . [that] the local views of each State . . . will not yield to a more enlarged scale of politicks ....n12 That was a reflection of "localist bias,"3 attributable in no small part to the vast distances, the primeval forests, and the raging torrents that separated the inhabitants.When William Houston was sent from Georgia to the Continental Congress in 1785, he "thought of himself as leaving his `country to go to 'a strange land amongst Strangers."'4 Madison, who adventured from Virginia to Princeton, New Jersey, said: "Of the affairs of Georgia I know as little as of those of Kamskatska."15 In the Convention Pierce Butler declared: "Will a man throw afloat his property & confide it to a govt. a thousand miles distant?"ls In South Carolina, James Lincoln declaimed that adoption of the Constitution "meant a surrender of self-government to a set of men who live one thousand miles distant from you. …