A government of adequate powers.

• Author: Paulsen, Michael Stokes

I am about to commit an act of unmitigated blasphemy for a Federalist Society member: I am about to attack most Federalist Society members' views of federalism.

So, first let me establish my credentials: I am most liberals' nightmare constitutional conservative. I am an original public meaning textualist. I believe that the single correct method of constitutional interpretation is to attempt faithfully to apply the meaning that the words would have had, in context, to a reasonably well-informed speaker or reader of the English language at or about the time the text was adopted. I believe further that this interpretive methodology is prescribed by the Constitution, which implicitly directs textualism as the way of interpreting the Constitution when it specifies that it is "this Constitution" that is adopted. (1) This is all set out in an elaborate article that I published with Vasan Kesavan in the Georgetown Law Journal, called "The Interpretive Force of the Constitution's Secret Drafting History." (2)

There is only one correct way to interpret the Constitution, and that is original public meaning textualism. Now, here comes the blasphemy: I believe that applying that interpretive methodology faithfully, one must conclude that the powers conferred on the national government are huge, sweeping, overlapping, and, when taken together, very nearly comprehensive. Alexander Hamilton was right. And nearly every member of the Federalist Society is wrong.

The Constitution's enumeration of powers, if pushed to its logical limits, in fact provides the national government with truly sweeping powers. The fact that, for many years, those limits were never reached or even pressed does not mean that the Constitution did not, in fact, confer broad powers on the national government. The fact that, politically, the full exercise of such powers might be unpopular or constitute bad public policy does not mean that the Constitution did not, in fact, confer such broad powers. The fact that the political virtues of federalism might be eroded or altered by the full exercise of the Constitution's enumerated national legislative powers does not mean that the Constitution did not, in fact, confer such broad powers.

Federalism, properly understood, is a descriptive term attached to the Constitution's allocation of powers. It is not a freestanding constitutional rule. There is no "Federalism Clause" in the Constitution. The Constitution's allocation of powers can result in many different practical arrangements, leaning more or less in favor of national predominance or state predominance in policymaking, depending on how the national government chooses to exercise its constitutional powers.

My proposition is simply this: the enumerated powers of the national government are huge powers. Although it is undoubtedly true that "[t]he enumeration presupposes something not enumerated," (3) it is also true that the enumeration considered as a package fairly admits of a construction that permits the national government to act very nearly as if it were a government of general legislative power. The powers to tax, to spend, to regulate commerce, to wage war, to enforce prohibitions on state government actions abridging individual liberties, especially when combined with the sweeping power to enact laws that are necessary and proper for carrying those enumerated powers and any other powers of the national government into execution, create a national government of truly enormous constitutional powers.

There is very little that the federal government lacks constitutional power to do, if it employs its grants of powers carefully, properly, ingeniously, and to full effect. Aside from the exceptions the Constitution creates in favor of individual rights, the primary limitation on the exercise of federal legislative power is the logical and political plausibility of the asserted relationship between the enacted policy and the constitutional powers on which it is asserted to rest.

Now, I know how deeply heretical this position is to my Federalist Society friends, and it probably means that I have forfeited (for the sixty-seventh time or so) my prospects of being appointed to the Supreme Court. Nonetheless, I am persuaded that this is the right answer. I emphasize that I do not necessarily like all of the political consequences to which this constitutional position might lead. But surely if the Federalist Society stands for anything, it stands for the proposition that one must never let one's political impulses drive one's constitutional interpretation. Along that route lies Dred Scott, (4) Lochner, (5) Roe, (6) Casey, (7) Lawrence, (8) and McConnell v. FEC, (9) among hundreds of other atrocities.

I offer here, as gently as I can, the admonition that the federalism-policy-driven, narrow reading of the Constitution's grant of specific and more general enumerated powers to the national government may be a milder version of the same disease that so grotesquely afflicts our liberal, anti-constitutionalist adversaries. That disease is the tendency to read the Constitution in accordance with our political preferences, rather than being guided by the objective original meaning of the words. It is a mistake to extract from the Constitution's grant of specific enumerated power a general abstract constitutional principle of federalism, and then to read that principle back into the specific enumerations as a rule of constitutional law that alters what otherwise would be the objective textual understanding of the grants of powers that the document actually gives. It is a mistake of the same type (but perhaps not of the same severity) committed by liberal activists, who extract from specific constitutional provisions a general right of privacy or liberty, and then read that principle back into the Constitution, as if that is what it said.

In the rest of this Essay, I will present an outline of six points. The first point is an interpretive principle that frames everything else: Where a constitutional provision has a legitimate range of meaning--where there is ambiguity or open-endedness--and the legislature has acted pursuant to a view fairly within that range, a court may not properly invalidate what the legislature has done. I think this principle flows absolutely clearly from the very justification for judicial review set forth in Federalist No. 78 (10) and in Marbury v. Madison. (11) That justification, in a nutshell, is this: The Constitution is law, and it is supreme law. Thus, where the Constitution supplies a rule of law and a legislative act is contrary to, or inconsistent with, that rule of law, the duty of the court is to apply the rules supplied by the Constitution, not the rules supplied by the unconstitutional statute. (12)

Conversely, where the Constitution does not supply a rule of law, there is no justification for a court striking down an act of the legislature as being contrary to the Constitution. It is essential, then--it is part of the core justification of judicial review--that the court conclude that the legislative act violates a rule of law that is set forth by the text of the Constitution before it strikes down the act.

Now, I believe in what friends of mine call "naive right-answerism." I believe that original meaning textualism yields single, correct answers to legal questions--at least sometimes. Sometimes that single right answer is a determinate point. Sometimes the right answer to a constitutional question is that a text legitimately bears a range of meaning, a number of possible applications, and it is hard to privilege one over another. In other words, sometimes you run this interpretive program and you get answer A. Sometimes you run this program and you say, "You know what? The correct reading of the text is that it could embrace A, B, C, or D." My proposition is that where the text...