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In the Arizona Law Review, Professor Andrew Koppelman asks the provocative question Why Do (Some) Originalists Hate America?, 63 Ariz. L. Rev. 1033 (2021). Originalists who are denounced in the essay include Volokh Conspiracy contributors Randy Barnett (Georgetown), Sam Bray (Notre Dame), Stephen Sachs (Duke), Will Baude (Chicago), me (Denver), and frequent VC guest writer Rob Natelson (presently my colleague at the Independence Institute, formerly at Montana).
Koppelman presents two main arguments. First, some originalists, presumably including all of those he criticizes in the article, are radicals who "hate America."
Second, originalism as a methodology is inherently unstable because it makes the law dependent on the latest discoveries in obscure archives. The only example Koppelman cites for originalism having affected a case outcome is the Natelson-Kopel influence on Chief Justice Roberts' opinion in the Obamacare case, National Federation of Independent Business v. Sebelius. That example is weak, because the Natelson-Kopel argument simply elucidated Chief Justice Marshall's statement in McCulloch v. Maryland: the Necessary and Proper Clause is a grant of "incidental" powers, and not the grant of "a great substantive and independent power." 17 U.S. 316, 411 (1819).
This post first examines Koppelman's assertion that originalists "hate America." Next, it briefly addresses Koppelman's valid criticism of simplistic use of corpus linguistics. Koppelman points to what he considers to be the three prime examples of what he calls "Rules-Reductive Originalism": Randy Barnett on the Commerce Clause, Rob Natelson the Coinage Clause, and Natelson-Kopel on the Necessary and Proper Clause. The post examines each in turn.
Koppelman warns that originalism would create major changes in the law. That is true for the Commerce Clause. However, originalist approaches the Coinage Clause and the N&P Clause just validate the long-standing status quo. The originalist peril is not as dire as Koppelman worries.
Koppelman's claim that originalists "hate America"
Let's start with the "hate America" theory. According to Koppelman's concluding paragraph, here is what originalists like Barnett, Bray, Sachs, Baude, Kopel, and Natelson think:
The narrative is clear. The regime has been contaminated by monstrous innovations. These are vile and polluting. Something Has Gone Wrong. A wholesale reformation is necessary in order to get rid of them. It helps a lot—in fact, it may be indispensable—to feel that there is something fundamentally rotten about America as it exists today. You need to really hate it.
Koppelman does not cite anything written by the above authors that says anything remotely like the ideas he attributes to them. Rather, Koppelman's conclusion is based on his inference about what originalists must think because they criticize today's federal government for exercising powers that were not granted by the original Constitution or by amendments. He is particularly concerned about critiques of the expansion of federal power during the New Deal and thereafter.
This is an odd definition of hating America. I can tell you for sure that everybody at the think tank where I work, the Independence Institute, loves America. Pursuant to our articles of incorporation, we are "founded on the eternal truths of the Declaration of Independence." Pointing out perceived errors or defects of the national government is not the same as hating the nation. Americans who argued that the Articles of Confederation were not working well were patriots, as were those who wanted to keep the Articles. The same is true for patriots who made constitutional arguments against the international trade embargo before and during the War of 1812, the Texas annexation, the Mexican War, the Fugitive Slave Act of 1850, U.S. entry into World War I and the attendant domestic repression of civil liberty, or the judicial abdication of enforcement of the Fourteenth and Fifteenth Amendments that allowed Jim Crow to flourish. Many more examples could be added. Perhaps the constitutional critics were wrong on some of their legal or policy arguments, but there is no reason to impugn their patriotism.
Koppelman foresees dire consequences from applying the Constitution according to original meaning, whereas I'm not so worried. We debated the issue in four articles in the Yale Law Journal. See Andrew Koppelman, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 Yale L.J. Online 1 (2011); Gary Lawson & David B. Kopel, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale L.J. Online 267 (2011); Andrew Koppelman, Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism, 121 Yale L.J. Online 515 (2012); Gary Lawson & David B. Kopel, Bad News for John Marshall, 121 Yale L.J. Online 529 (2012).
In real life, Andrew Koppelman is a gentleman, a scholar, and a vigorous defender of free speech, including for people he strongly disagrees with. He invited me to a Northwestern symposium to discuss a draft of his book The Tough Luck Constitution and the Assault on Health Care Reform. There, he listened thoughtfully to critiques from diverse points of view and incorporated some of them into revisions of the manuscript.
Koppelman's devotion to maintaining and greatly increasing the present size of the federal government is sincere, but he is mistaken to believe that people who favor a smaller government, past or present, "hate America." History shows that critics of perceived unconstitutional federal action are sometimes right. I was called unpatriotic for opposing the civil liberties violations in the so-called PATRIOT Act of 2001. In my view, it is a mistake to conflate support for ever-increasing national government with love of the United States of America.
Political discourse these days is too toxic because too many people make ridiculous assumptions about "the other side." Professor Koppelman was wrong to denigrate the patriotism of people who disagree with him, and his article would have been stronger if he had just presented his critiques of originalism as a methodology.
Koppelman's critique of originalism
The Koppelman article begins:
Imagine a regime whose fundamental law is only to be found in ancient archives. Their mysterious contents take years to unearth, layer by layer. With new discoveries, bodies of established law are unexpectedly invalidated and discarded. Others, previously rejected, spring back to life as scholars revise earlier conclusions. The operations of government are in constant confusion. This state of affairs is likely to persist indefinitely.
Koppelman trains some of his fire on corpus linguistics, which "relies upon recently developed techniques of analyzing big databases of texts of the founding period. . . . [A]ll of this involves a microscopic examination of each word, taken out of context."
I don't do corpus linguistics and so I won't dispute Koppelman's criticisms of it. My only contribution to the field was to identify egregious misclassification of quotes by several scholars who filed an amicus brief in Second Amendment Supreme Court case. Kopel, Corpus Linguistics and the Second Amendment: Support for the right to bear arms for all purposes, Volokh Conspiracy, Oct. 29, 2021.
Nor am I an originalist in the sense that Koppelman uses the term. For at least some of the Constitution, I agree with Justice Harlan's famous dissent in Poe v. Ullman about the scope of the "liberty" protected by the "due process of law" clauses of the Fifth and Fourteenth Amendments:
The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.
367 U.S. 497, 542 (1961) (Harlan, J., dissenting) (emphasis added). So you might call me a "living constitutionalist." I distinguish Justice Harlan's history and tradition approach from the notion that judges can just make the Constitution say whatever they want, based on their current views of good policy. In my view, the freestyle approach makes a written constitution meaningless. Far from being "living constitutionalism," letting judges make it up as they go along is what I call "dead constitutionalism."
It is true that my colleagues and I have sometimes looked up terms in dictionaries or newspaper databases to see how people at a given time understood particular words. For example, my amicus brief in Espinoza v. Montana Dept. of Revenue, involving state constitution prohibitions on state aid to "sectarian" institutions, explained that in the 19th century, "sectarian" was not a synonym for "religious." Rather, it was an epithet for religions that were considered extreme, heretical, fanatical, or bad—especially Catholicism and Mormonism. Justice Alito cited the brief and a Natelson article in his concurring opinion. 140 S.Ct. 2246, 2268, 2270 (2020) (Alito, J., concurring); Robert G. Natelson, Why Nineteenth Century Bans on "Sectarian" Aid Are Facially Unconstitutional: New Evidence on Plain Meaning, 19 Federalist Soc. Rev. 98, 104 (2018).
If, as all present Justices of the Supreme Court agree, original meaning is at least part of how courts should interpret constitutional language, then presenting evidence about the meanings of words used in a constitution at the time a constitution was adopted is appropriate.
Randy Barnett and the Commerce Clause
Koppelman takes aim at what he calls "Rule-Reductive Originalism." According to him, this form of originalism "assumes that historical research will yield rules that leave the interpreter little or no discretion in application."
Koppelman offers three examples. Randy Barnett "argues, citing voluminous new research, that the word 'commerce' was commonly used to refer only to trade and transportation, not manufacturing or agriculture." Randy E. Barnett, Jack Balkin's Interaction Theory of "Commerce," 2012 U. Illinois L. Rev. 623. Yale's Balkin has argued for a much more expansive interpretation of "commerce." As Balkin points out, the word "commerce" in the Founding Era sometimes included not only mercantile trade, but also social relationships. Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1 (2010). Robert Natelson and I replied that in the Interstate Commerce Clause, "commerce" meant mercantile exchange, and did not include the contemporaneous social, religious, and sexual metaphorical meanings. Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Michigan Law Review First Impressions 55 (2010). Here, Barnett, Natelson, and I were adhering to Koppelman's rule that constitutional words must be considered in constitutional context, and not simply by adding up every known usage (as Koppelman accuses corpus linguists of doing).
Koppelman accurately states, "If Barnett's discoveries mean what he thinks they mean, then much of present federal law is unconstitutional." Agreed, especially for the extension of federal criminal law into entirely intrastate activity. For example, the grant of power to Congress to "regulate Commerce . . . among the several States" did not grant Congress the power to prohibit a particular abortion technique. David B. Kopel & Glenn H. Reynolds, Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban, 30 Connecticut L. Rev. 59 (1997). The challengers to the congressional ban lost 5-4 on whether prohibiting a particular method was an "undue burden." But they might have won the case 6-3 if they had been willing to include Article I in their case. In a concurring opinion joined by Justice Scalia, Justice Thomas wrote:
I also note that whether the Partial–Birth Abortion Ban Act of 2003 Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
Gonzalez v. Carhart, 550 U.S. 124, 170 (2007).
Adherence to the original meaning of the powers that the people have granted to the U.S. government has never prevented the people from choosing to grant additional powers. Eight times the people have enacted new amendments granting Congress power "to enforce this amendment by appropriate legislation."
Robert Natelson and the Coinage Clause
Koppelman's second example of "Rules-Reductive Originalism" is fiat paper money. The Constitution forbids every State to "coin money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts." Art. I, sect. 10. The Constitution imposes no such restrictions on Congress. The Constitution grants Congress the power to "coin Money, regulate the Value thereof, and of foreign Coin." (Some foreign coins were legal tender in the United States, at congressionally-prescribed rates, until the Coinage Act of 1853.)
Does the Coinage Clause grant Congress only the power to mint physical coins? What about paper money that is exchangeable for a tangible thing of value, such as gold or silver? This kind of paper money is called specie. Can Congress make fiat paper—paper that is not backed by anything—into legal tender for private debts? Based on original meaning, Congress has complete choice. As Robert Natelson points out, limiting the Coinage Clause to only physical coins would lead to the absurd result that Congress could regulate foreign coins but not foreign paper.
Due to the exigencies of the Civil War, the federal government issued fiat "greenbacks" as legal tender. Even more controversially, the greenbacks were retroactive. Contracts based on a gold-backed dollar were automatically changed to allow payment based on nothing-backed paper greenbacks.
In a series of eight cases from 1869 to 1884, divided Supreme Court opinions upheld the greenbacks, then held them unconstitutional, and then held them constitutional. If the Court had stuck with originalism, it could have unanimously upheld Congress every time. So says what Koppelman calls "Robert Natelson's clever article." As Natelson explains, both sides of the ratification debates agreed that the proposed constitution would authorize Congress to create fiat paper money. Robert G. Natelson, Paper Money and the Original Understanding of the Coinage Clause, 31 Harv. J.L. & Public Policy 1017 (2008).
Koppelman rails against originalists who believe "wholesale reformation is necessary." So why does he denounce Natelson, who says that Coinage Clause originalism conforms to long-standing precedent?
The Documentary History of the Ratification of the Constitution
One problem, according to Koppelman, is that Natelson used "previously neglected evidence." This is an example of what Koppelman calls "a regime whose fundamental law is only to be found in ancient archives. Their mysterious contents take years to unearth, layer by layer."
The accusation is partly true. My office is next door to Natelson's, so I know. The "archives" do progress year by year. The archives are public, not mysterious.
Starting in 1976, the University of Wisconsin has published volumes of The Documentary History of the Ratification of the Constitution. They are "the definitive collection of primary source material related to the ratification debates. Editors draw on a body of more than 70,000 documents, including official materials, such as records of town and county meetings, executive records, legislative proceedings, convention journals and debates, petitions, recommended amendments, forms of ratification, and financial records; personal papers, such as letters, memoirs, diaries, and poetry; diplomatic correspondence; and printed primary documents from newspapers, broadsides, and pamphlets. These documents have been transcribed, annotated, and published in thirty-four volumes to date." Eight more volumes are planned.
DHRC volumes are available at no cost through the University of Wisconsin Libraries' Digital Collections.
So far, so good. Coinage Clause originalism allows today's status quo; the original documents are available to everyone for free.
Although Coinage Clause originalism is innocuous, Koppelman points out the danger that present understanding of original meaning might later be disproven by deeper research. Then, "if courts declared American paper currency to be worthless," there would likely be "a catastrophic worldwide depression." "It remains to be seen whether Natelson's analysis withstands critical scrutiny. Meanwhile the world continues to use American bills, blithely unaware of the fearful danger it faces."
Fear not. Even if future research overturned current understanding of the Coinage Clause, and the Supreme Court followed suit, the Court would, for the reason Koppelman states, likely stay its mandate, and give Congress sufficient time to make appropriate adjustments, or for the people to make an amendment, if they so chose.
Originalism is a more solid basis for interpretation of the Coinage Clause than other theories. If the Coinage Clause were subject to judicial re-interpretation based on judges' policy judgements, there would be uncertainty about fiat paper, as when the Court flip-flopped twice on greenbacks. Coinage Clause originalism might not provide a clear answer to every money issue, but it does settle a very important one: fiat paper is legal tender.
The Necessary and Proper Clause
Koppelman's third, most extensive example of "Rules-Reductive Originalism" involves my work with other scholars on the Necessary and Proper Clause in the Obamacare cases, specifically the amicus brief in Department of Health and Human Services v. State of Florida. The amicus brief was filed by me as "Brief of Authors of The Origins of the Necessary and Proper Clause (Gary Lawson, Robert G. Natelson & Guy Seidman) and the Independence Institute." (Lawson teaches at Boston University and Seidman at Radzyner School of Law in Tel Aviv.)
This Necessary and Proper Clause is Koppelman's only example of how "Rules-Reductive Originalism" affected the outcome of a case. "It appears to have influenced the opinion of Chief Justice Roberts. See Andrew Koppelman, 'Necessary,' 'Proper,' and Health Care Reform, in The Health Care Case: The Supreme Court's Decision and Its Implications 105 (Nathaniel Persily, Gillian Metzger, and Trevor Morrison eds., 2013)." Here is Koppelman's description of our brief:
. . . Congress's power to require people to purchase health insurance appeared, to most lawyers familiar with settled doctrine, to follow easily from the Necessary and Proper Clause. The Clause was expansively interpreted, as assigning to Congress a broad choice of means for carrying out its enumerated powers, since the 1819 decision in McCulloch v. Maryland. That interpretation had recently been reaffirmed in United States v. Comstock. [2010, upholding 8-1 a congressional statute for detention of federal prisoners convicted of sex crimes even after they have served their full sentences.] Congress had been legislating in reliance on that understanding for almost 200 years.
Gary Lawson and David Kopel, however, argued, offering a new interpretation of the historical evidence, that the Clause incorporates norms from eighteenth-century agency law, administrative law, and corporate law, and that the health insurance mandate (and perhaps much else in the U.S. Code, though they were coy about this) violates those norms. [Citing the Yale "Bad News" articles.] The Necessary and Proper Clause, as Lawson and Kopel understand it, tightly limits the scope of implied powers to those that are less important—less "worthy" or "dignified" (they attribute these terms of art to the Framers)—than the principal powers to which they are subsidiary. The scope of this limit is mysterious, and its effects on the structure of the present federal government are similarly mysterious but potentially dramatic.
What is remarkable here is the novelty of the argument—something that's valued in the academy but mischievous as a basis for governance. Nobody in Congress knew or could have known of Lawson and Kopel's argument at the time Obamacare was enacted. It was not even an element of Randy Barnett's constitutional attack on the law, the eventual basis of the lawsuit, which was unveiled as the law was about to pass in the Senate. It appeared for the first time more than a year after the President signed the bill into law.
The fundamental purpose of the Constitution is to constitute federal power. If Lawson and Kopel are correct, however, Congress, at a time when it was laboriously constructing major legislation, did not know and could not have known what the limits of its powers were.
He adds in a footnote:
It is perhaps illustrative of this [Koppelman Arizona] Article's claims that I was astounded by their initial article, which was based on constitutional objections that were previously unknown, not only to me, but also to the other scholars who were attacking the statute and to the judges who first declared it constitutionally invalid.
People who were "astounded" by the supposed "novelty" of our argument had overlooked its much earlier appearance in the law review literature, in the scholarship of the eminent liberal law professor Gerald Gunther, in Supreme Court opinions, and, most importantly, in McCulloch v. Maryland.
It's true that the book named in the amicus brief title, The Origins of the Necessary and Proper Clause, was published by Cambridge University Press on July 5, 2010, which was 15 weeks (not "more than a year") after President Obama signed the Affordable Care Act on March 23, 2010. But the basic arguments had been set forth in Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L.J. 267 (1993); Robert G. Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case Western Reserve L. Rev. 243 (2004), and Gary Lawson, The "Principal" Reason Why the PCAOB Is Unconstitutional, 62 Vanderbilt Law Review En Banc 73 (2009). So in fact, Congress "could . . . have known what the limits of its powers were," although the idea that the congressional majority cared about constitutional limits when enacting Obamacare is fanciful.
Our observations about the Necessary and Proper Clause were not separate from the argument of Randy Barnett and others that the Interstate Commerce Clause grants Congress the power to regulate commerce and does not grant the power to compel commerce. We only showed that the Necessary and Proper Clause does not rescue by individual mandate by somehow expanding the powers granted by the Interstate Commerce Clause.
Koppelman is correct that we didn't file amicus briefs the earliest stages of the Obamacare cases. Our first brief came in May 2011, in Florida v. United States Department of Health and Human Services, 648 F.3d 1235 (11th Cir. 2011). It was one of several Obamacare cases for which the Supreme Court later granted certiorari. We filed a similar brief later that year in Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011). The consolidated cases were decided under the lead name of National Federation of Independent Businesses v. Sebelius.
According to the originalist briefs and the preceding scholarship, "necessary" and "proper" were well-understood terms from agency and corporation law. When a principal grants a particular power to an agent, the grant is presumed (unless the grant says otherwise) to include "incidental" powers related to the principal power. For example, if I grant you the power to sell my crop of wheat, I implicitly grant you the power to arrange for credit, delivery, and transportation terms with the buyers. The grant of these "incidental" powers for wheat sales does not imply the grant of "a great, substantive and independent power." The agent can't make a deal for sale of the wheat crop that also includes the sale of my farm. The farm is "of higher dignity" than the crop. Similarly, the grant of power to regulate interstate commerce does not grant the power to compel commerce.
The decision in McCulloch v. Maryland was based on the difference between mere "incidental" powers versus powers that were "of higher dignity" or "great substantive and independent." If that is surprising to you, perhaps you have only read an expurgated version of McCulloch in a law school textbook.
To forestall any doubt that agents did have appropriate incidental powers, agency agreements often used the terms "necessary" and "proper." These did not enlarge the agent's power, but they did make it clear that the agent had incidental powers.
The Necessary and Proper Clause was put in the Constitution for the exact same reason. As Chief Justice Marshall explained, the words "did not enlarge powers previously given, but were inserted only through abundant caution." He said so in a newspaper essay defending the McCulloch decision. It is reprinted in Gerald Gunther's 1969 book John Marshall's Defense of McCulloch v. Maryland, published by the Stanford University Press. Stanford Professor Gunther is among the most-cited American constitutional law scholars of the latter twentieth century. Nothing he wrote is "obscure." A similar point was made in McCulloch: the Necessary and Proper Clause neither enlarged nor diminished how Congress might carry out its enumerated powers. "If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution if that instrument be not a splendid bauble." 17 U. S. at 421-22.
In a simple agency contract, the parties could list each and every incidental power, if they wished to. But that would be impossible in a Constitution. "[W]e must never forget that it is a Constitution we are expounding." 17 U.S. at 407.
Thus, as Chief Justice Roberts explained, the enumerated congressional power to "regulate" interstate commerce included incidental powers, such enacting criminal laws against robbers who interfered with interstate commerce. The power to force people to engage in interstate commerce (to buy Obamacare insurance) is not a mere incident of regulating existing commerce. A power to compel commerce would be a "principal" power—"a great substantive and independent power." No such power was granted.
The Obamacare decision was the first time that the Supreme Court quoted from Marshall's essays, and so in that regard, our brief did influence the Court. But our brief was not necessary to Chief Justice Roberts' distinction between "incidental" and "principal" powers. Although law students may never have been taught about McCulloch's distinction, Supreme Court cases have often adhered to McCulloch's reasoning, and have upheld various government actions when the Court has determined that they are "incidental" to a granted power. E.g., Dames & Moore v Regan, 453 U.S. 654, 688 (1982) ("But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute") (Iranian hostage case).
Koppelman's Why Do (Some) Originalists Hate America? opens with an epigraph from Chief Justice Marshall's opinion in McCulloch:
To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.
Indeed! The Constitution does not limit Congress only to a specific list of incidental powers. Our briefs and scholarship embrace Marshall's point. We simply call attention to the Chief Justice's explanation of why the Court held that Congress had an incidental power to charter a corporation (the Second Bank of the United States), even though the Constitution does not enumerate such a power:
The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war or levying taxes or of regulating commerce, a great substantive and independent power which cannot be implied as incidental to other powers or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity; no seminary of learning is instituted in order to be incorporated, but the corporate character is conferred to subserve the purposes of education. No city was ever built with the sole object of being incorporated, but is incorporated as affording the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is therefore perceived why it may not pass as incidental to those powers which are expressly given if it be a direct mode of executing them.
17 U.S. at 411. The Chief Justice elaborated why the power to charter a corporation was merely a "usual" means to carrying out enumerated powers. It was not a power "of higher dignity," which would have required enumeration:
That a corporation must be considered as a means not less usual, not of higher dignity, not more requiring a particular specification than other means has been sufficiently proved. If we look to the origin of corporations, to the manner in which they have been framed in that Government from which we have derived most of our legal principles and ideas [the U.K.], or to the uses to which they have been applied, we find no reason to suppose that a Constitution, omitting, and wisely omitting, to enumerate all the means for carrying into execution the great powers vested in Government, ought to have specified this. Had it been intended to grant this power as one which should be distinct and independent, to be exercised in any case whatever, it would have found a place among the enumerated powers of the Government. But being considered merely as a means, to be employed only for the purpose of carrying into execution the given powers, there could be no motive for particularly mentioning it.
17 U. S.at 421-22.
Per Mr. Chief Justice Marshall, the enumerated powers gave Congress an incidental power to charter corporations, when doing so was in furtherance of an enumerated power. Congress does not have a free-standing power to grant corporate charters for other purposes.
In sum, Koppelman is incorrect that our elucidation of the Necessary and Proper Clause came from "ancient archives." In fact, it came from McCulloch v. Maryland. We merely described for a twenty-first century Court the common law background that was so familiar to John Marshall and other lawyers of his generation that it did not need to be recapitulated at length in McCulloch. Whatever may be said about our brief, it was neither astounding nor novel.
The few and simple originalist rules for the Necessary and Proper Clause allow "discretion in application."
Koppelman points to our work as his prime example "Rule-Reductive Originalism" that "assumes that historical research will yield rules that leave the interpreter little or no discretion in application." To the contrary, we merely described three general rules of the Necessary and Proper Clause. The most important one, which mattered in the Obamacare cases, is that the clause affirms the constitutional grants of incidental powers and does not grant any "great substantive and independent power."
As the brief explains, an alleged incidental power by its nature must "be so connected to its principal by custom or need as to justify inferring that the parties intended the inferior power to accompany the express power." This was easy for the Second Bank of the United States; creating a national bank to facilitate tax collection and government borrowing, especially during wartime, was not an American novelty.
The other rule is that the "proper" exercise of an implied power must conform to basic fiduciary standards. As McCulloch noted, governments are a type of corporation. The government, as trustee of a "public trust," must act with impartiality, just as a corporation must treat shareholders equally.
The issue was not raised in McCulloch, and it was not necessary to the Court's opinion in Obamacare. Having found that Congress had no power to compel commerce, the Court did not have to consider whether the compulsion was "proper."
However, the government's "proper" fiduciary duty of impartiality did become important thirteen years after McCulloch was decided. In 1832, Democratic President Andrew Jackson vetoed a bill to recharter the Second Bank of the United States. His famous veto message agreed with McCulloch that the Necessary and Proper Clause confirmed congressional power to create "a bank." But, explained Jackson, the particular structure of the monopoly Second Bank of the United States showed it to be a special interest operation for the benefit of the shareholders and to the detriment of the public.
Invoking the longstanding principles of public trust and fiduciary duty, Jackson encapsulated them with a new term in American political vocabulary: "equal protection."
In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to protection by law; but when the laws undertake to add to these natural and just advantages artificial distinctions, to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society—the farmers, mechanics, and laborers—who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustice of their Government. There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.
Many of our rich men have not been content with equal protection and equal benefits, but have besought us to make them richer by act of Congress. By attempting to gratify their desires we have in the results of our legislation arrayed section against section, interest against interest, and man against man, in a fearful commotion which threatens to shake the foundations of our Union. It is time to pause in our career to review our principles, and if possible revive that devoted patriotism and spirit of compromise which distinguished the sages of the Revolution and the fathers of our Union. If we can not at once, in justice to interests vested under improvident legislation, make our Government what it ought to be, we can at least take a stand against all new grants of monopolies and exclusive privileges, against any prostitution of our Government to the advancement of the few at the expense of the many, and in favor of compromise and gradual reform in our code of laws and system of political economy.
The nascent Whig Party (the anti-Jackson opposition, which would become a formal party in 1834) disagreed with Jackson's harsh characterization of the Second Bank of the United States. Whigs thought the Bank not only facilitated the collection of taxes and the issuance of debt, it fostered economic prosperity for all. The Whigs did not disagree with Jackson's general statements about equal protection and what is "proper" under the Necessary and Proper Clause. They just disagreed with how he applied those principles to the Second Bank of the United States.
As the contrasting Whig and Democrat views of the bank bill illustrate, the originalist rules of the Necessary and Proper Clause do not leave an "interpreter" without "discretion in application."
Our originalist argument did not call for "wholesale reformation," but merely for continued adherence to the McCulloch v. Maryland precedent. Koppelman's assertion that such an argument could only come from people who "hate America" is implausible. It is patriotic for originalists to urge that federal officials honor the Constitution that gives them their powers and to which the officials have sworn their oaths of office.