The Indian Commerce Clause: The Natelson/Ablavsky Debate

Professor Greg Ablavsky, perhaps the leading historian of Federal Indian Law, has a short piece up on SSRN replying to a short piece by Professor Rob Natelson, whose work frequently appears on this blog. Since the Supreme Court has a case about some of their debates pending next term, I thought the entire exchange might be of interest to some readers.

In 2007, Natelson published The Original Understanding of the Indian Commerce Clause. The article was repeatedly cited by Justice Clarence Thomas in a subsequent case.

In 2019, Ablavsky filed an amicus brief in the Fifth Circuit Brackeen litigation (now on review at the Supreme Court). The brief argues that Natelson's work "is deeply flawed, marred by inaccurate versions of sources and unsupported assertions directly at odds with explicit Founding-era evidence."

In 2022, Natelson apparently discovered the brief and published a short response, claiming that Ablavsky's brief "has a shyster-like quality:"

(1) It misrepresents my conclusions and then attacks the misrepresented version rather than what I actually wrote.

(2) It wrenches quotations out of context to make them appear to say things they did not.

(3) It seeks to divert attention away from how the ratifiers understood the Constitution during the ratification process and toward how federal congressmen and officials may have understood it after ratification. Of course, self-interested federal officials' subsequent interpretation of their own powers is virtually worthless as evidence of the previous ratification bargain.

Ablavsky now has a response posted on SSRN. Here's the abstract:

Robert Natelson recently responded to a three-paragraph critique of his 2007 law review article that I offered in an amicus brief in the ongoing Brackeen litigation. Though Natelson concedes that critical examination is an integral part of the scholarly process, he claims that my brief was not only unscholarly but "shyster-like."

I disagree. In this reply, I rebut his critiques. I reiterate the key, uncontested point that his original article relied on an inaccurate version of a vital piece of evidence from ratification, Sydney's New York Journal essay. In the correct version, Sydney observed that ratification would "totally surrender into the hands of Congress the management and regulation of the Indian affairs." Natelson's response attempts to explain away this language as a mere slip of Sydney's pen. But in my view this effort to rewrite the historical source's explicit language to agree with Natelson's original hypothesis is unpersuasive.

I then challenge Natelson's claims that I distorted his arguments. As I show, nearly all the critiques that my brief offered drew from near identical arguments in my 2015 Yale Law Journal article that Natelson himself concedes was "generally respectful." Moreover, I argue that each of my characterizations of Natelson's article, while necessarily a summary, accurately reflected his arguments and underscores the substance of our scholarly disagreement.

It is unfortunate that Mr. Natelson took my brief so personally. This case is not about either Mr. Natelson or me. As all parties would agree, the outcome will significantly impact people's lives. I briefly discussed Mr. Natelson's scholarship in the amicus not to denigrate him but because I have spent my academic career researching the history at issue here, and because, in my scholarly assessment, Mr. Natelson's frequently invoked article was flawed and at odds with historical evidence. I am disheartened that this important academic discussion has devolved to ad hominem attacks.

The exchange was also linked last week on The Originalism Blog, where Mike Ramsey added "I'm carefully not taking sides on this one, which readers can judge for themselves."

I agree that the personal turn this debate has taken is unfortunate. In any event, the underlying question -- what are the scope of the Indian Commerce Clause and other congressional powers -- is an important one, and one that the Supreme Court will likely turn to next year. Natelson has suggested that he will have future work forthcoming on this question; I assume that Ablavsky will file a brief with the Court in due course.

My own tentative hypothesis is that Congress's Article I power to define and publish offenses against the law of nations may also be an important source of Article I power here. And in addition to Ablavsky's and Natelson's work, I also recommend Chris Green's Tribes, Nations, States: Our Three Commerce Powers, which tries to reconcile the evidence of a broad tribal and foreign commerce power with that for a narrower interstate commerce power.

I hope to write more about this as the issue ripens next term.

Comments

[EscherEnigma]

Oh hey, another ICWA case. This should be fun. I don't know if that "half of Oklahoma is Indian land" case bears directly on this, but I sure hope that perspective does. Should make things interesting.

[Rev. Arthur L. Kirkland]

" Professor Rob Natelson, whose work frequently appears on this blog. "

Maybe before Prof. Blackman joined the Conspiracy.. I hope your research is customarily better, Prof. Baude.

(If not, you are a natural to help with Today In Supreme Court History.)

[Noscitur a sociis]

Prof. Ablavsky notes that an anti-federalist said that adopting the constitution would "totally surrender into the hands of Congress the management and regulation of the Indian affairs" and writes that "Americans heard Yates’s argument that ratification would 'totally
surrender' all power over Indian affairs to Congress—and ratified the Constitution anyway."

As a factual matter, I'm not sure that's accurate: by the time this was published, eight states had already ratified and the ninth (New Hampshire) would do so only a week later, so I'm doubtful that the essay could have had any effect. More importantly, though, this type of argument—that is, relying on an opponent's dire predictions about what a measure would do to interpret its meaning—strikes me as pretty weak. Sure, maybe the enactors agreed with the interpretation and were okay with it. But why not suppose that they thought the opponent was wrong about the meaning, and supported the measure because they thought it did something else? I don't see any principled way to distinguish between the two in most cases (including this one).

[QuantumBoxCat]

I am typically confused when it comes to using political rhetoric as historical evidence in discerning the meaning of Constitutional provisions. In political rhetoric those who are opposed to law will often use hyperbole and exaggeration to argue that a multitude of "bad" consequences will come about if the law is passed. The "bad" consequences are "bad" because the writer knows that his target audience views them as "bad."

So, an Anti-Federalist, who desires a small central government, will argue that a Constitutional provision will give the new government immense power. This argument resonates with an Anti-Federalist audience that does not want a powerful central government. The argument, I believe, is meant to persuade Anti-Federalists to oppose the Constitution. A Federalist writer then responds by arguing for a narrower interpretation of the clause in question, appealing to their Federalist audience. But, once the Constitution passes, the two sides suddenly switch positions in furtherance of their broader preferences. The Anti-Federalist will now argue for a narrow interpretation of the clause (thus limiting federal power) while the Federalist argues for a broader interpretation (thus expanding federal power).

But, how does a modern researcher discern political rhetoric (such as hyperbole and exaggeration) from actual public understanding? Or, should all writings be considered part of the public understanding, regardless of their rhetorical and results-oriented purpose? Did Anti-Federalists actually understand the clause in question to grant Congress broad federal power, and if so, does this provide evidence of the original understanding. Likewise, did the Federalists actually understand the clause in question to be a limited grant of federal power, and if so, does this provide evidence of the original understanding?

I'm more apt to believe that in matters of politics there is no single "understanding," as the meaning of the language in question is the very thing that the political sides disagree on.