Marquette University Law School Marquette Law Scholarly Commons Faculty Publications Faculty Scholarship 1-1-2010 Charters, Compacts, and Tea Parties: The Decline and Resurrection of a Delegation View of the Constitution Edward A. Fallone Marquette University Law School, [email protected] Follow this and additional works at:http://scholarship.law.marquette.edu/facpub Part of theLaw Commons Publication Information Edward A. Fallone, Charters, Compacts, and Tea Parties: The Decline and Resurrection of a Delegation View of the Constitution, 45 Wake Forest L. Rev. 1067 (2010) © 2010 by the Wake Forest Law Review Association, Inc. Repository Citation Fallone, Edward A., "Charters, Compacts, and Tea Parties: The Decline and Resurrection of a Delegation View of the Constitution" (2010).Faculty Publications.Paper 125. http://scholarship.law.marquette.edu/facpub/125 This Article is brought to you for free and open access by the Faculty Scholarship at Marquette Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. W05_FALLONE 10/18/2010 11:45:59 AM CHARTERS, COMPACTS, AND TEA PARTIES: THE DECLINE AND RESURRECTION OF A DELEGATION VIEW OF THE CONSTITUTION Edward A. Fallone* INTRODUCTION Originalism is widely acknowledged to be the dominant method of constitutional interpretation today.1 However, recent scholarship advancing an originalist interpretation of the Constitution reflects disagreement over whether viewing the Constitution as a form of contract can provide insight into the original understanding of the text. For example, Professor Samuel Issacharoff has argued that one basic feature of originalism is “the underlying idea that a constitution is indeed a pact, a social contract designed to create legitimate governing institutions responsive to the political and social divides of a society.”2 Acceptance of a “contractarian notion of a constitution,”3 according to Professor Issacharoff, provides insight into the original intentions of the founding generation.4 Conversely, Professor Randy Barnett has firmly declared that “constitutions are not contracts.”5 Professor Barnett argues that originalists make a mistake when they seek to interpret our Constitution in a contractual fashion, by seeking to identify the * Associate Professor, Marquette University Law School. I would like to thank James Nafziger and Michael O’Hear for their helpful suggestions. Some portions of this Article were presented in an earlier form on September 28, 2007, as part of a conference entitled “America, Human Rights and the World,” sponsored by the Marquette Human Rights Initiative. I would like to dedicate this Article to the memory of my father, James E. Fallone. 1. See Brian A. Lichter & David P. Baltmanis, Foreword: Original Ideas on Originalism, 103 NW. U. L. REV. 491, 491 (2009). In recent years, it has been widely stated among legal academics that “we are all originalists now,” although academics continue to advance alternative forms of originalism. See, e.g., James E. Fleming, The Balkanization of Originalism, 67 MD. L. REV. 10, 11–12 (2007) (reviewing alternative forms of originalism). 2. Samuel Issacharoff, Pragmatic Originalism?, 4 N.Y.U. J. L. & LIBERTY 517, 520 (2009). 3. Id. at 525. 4. Id. at 526. 5. Randy E. Barnett, The Misconceived Assumption About Constitutional Assumptions, 103 NW. U. L. REV. 615, 616 (2009). 1067 W05_FALLONE 10/18/2010 11:45:59 AM 1068 WAKE FOREST LAW REVIEW [Vol. 45 underlying assumptions of the population that is covered by the text.6 He argues instead that the differences between contracts and constitutions negate the utility of contract law theory as a means of ascertaining the underlying assumptions of the parties to the social contract.7 However, Professors Issacharoff and Barnett do agree on one thing. Both professors note that constitutional scholars have thus far failed to engage in a systematic examination of whether our understanding of the Constitution is furthered either by embracing or rejecting the notion of the Constitution as contract.8 Central to any such examination must be the question of how the founding generation viewed the United States Constitution. This Article argues that the Constitution has been understood at different times to operate as one of two competing conceptions of contract. Originally, the founding generation understood the Constitution to operate as a charter of delegated power.9 However, over time both the Supreme Court and, more recently, the Bush administration have advanced the alternative view that the Constitution should be read as if it were a compact.10 At this moment in history, when critics of the Obama administration have rallied around the cause of limited government—and in particular have objected to the individual mandates contained in health care reform legislation11—it appears that the popular understanding of the Constitution may be poised to revert toward its original nature as a charter. Indeed, in many ways the ideological underpinnings of the Tea Party Movement can be traced to this earlier understanding of the Constitution. Part I of this Article discusses the two theories most commonly used to define the scope of the constitutional domain—theories that provide that the Constitution should be interpreted as either a charter of delegated power or as a compact—and explains the distinctive characteristics of each theory. Part II describes the Framers’ original understanding of the Constitution as a charter of delegated powers and the manner in which they understood charters to circumscribe the exercise of federal power. Part III traces the 6. Id. 7. See id. at 617–26. 8. Barnett notes that “[c]onstitutional scholars have yet to examine systematically the lessons that can be learned from a close comparison of the important similarities and equally important differences between written constitutions and contracts.” Id. at 616. Issacharoff states that the application of contractual principles to guide the interpretation of the Constitution “is a relatively underexamined claim in constitutional scholarship.” Issacharoff, supra note 2, at 520 n.16. 9. See infra notes 66–72 and accompanying text. 10. See infra Parts III.C–D. 11. See, e.g., Orrin G. Hatch et al., Op-Ed., Why the Health-Care Bills Are Unconstitutional, WALL ST. J., Jan. 2, 2010, at A11. W05_FALLONE 10/18/2010 11:45:59 AM 2010] CHARTERS, COMPACTS, AND TEA PARTIES 1069 history of how the compact view of the Constitution came to predominate over the delegation view in more recent expressions of the scope of the federal government’s power. Finally, the Article concludes by identifying the reasons for the recent resurgence of the idea that the Constitution should be read as a charter. I. COMPETING THEORIES OF CONSTITUTIONALISM The task of determining the authority of the federal government to exercise its power over individual human beings under our constitutional system has been described as “[d]efining the domain of constitutionalism.”12 The exact contours of the power granted to the federal government in certain parts of the text, and the powers denied to the federal government elsewhere, are ultimately functions of the locus of sovereignty in the constitutional system.13 The degree of sovereign power delegated to the federal government by “the people” at the moment of our nation’s inception, and the consequent scope of personal liberty that “the people” retained for themselves, are the fundamental inquiries at the heart of constitutionalism. The Framers of the Constitution debated this question,14 and the Tenth Amendment was adopted in an attempt to provide an express resolution of the problem.15 Our nation’s constitutional history reflects two competing views of the nature of the sovereignty possessed by the federal government. The first view is that the Constitution is a concrete compact between the federal government and the state governments, with the people of the United States as beneficiaries.16 This view conceptualizes the Constitution in standard contractual terms and places primacy on notions of consent. This approach will be referred to throughout this Article as the “compact view.” The second view of sovereignty expressed in our constitutional history is the view that the Constitution grants no absolute sovereign powers to the federal government; those powers continue to be retained by “the people.” Therefore, the only legitimate 12. GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION 3 (1996). 13. See T. ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY 3 (2002) (emphasizing the connection between sovereignty, membership, and governmental power). 14. See JAMES H. READ, POWER VERSUS LIBERTY 1–10 (2000). 15. See THOMAS B. MCAFFEE, JAY S. BYBEE & A. CHRISTOPHER BRYANT, POWERS RESERVED FOR THE PEOPLE AND THE STATES 39–44 (2006) (reviewing the drafting and the history of the Tenth Amendment). 16. See, e.g., GARRY WILLS, A NECESSARY EVIL 145–47 (1999) (describing how James Madison came to embrace a compact theory of the Constitution). Michael Lind refers to this strand of American political philosophy as “democratic localism.” See Michael Lind, Introduction, in HAMILTON’S REPUBLIC, at xi, xiii (Michael Lind ed., 1997) (“Democratic localists often (though not always) have claimed that the Constitution established merely a revocable compact among the states.”); see also generally SAMUEL H. BEER, TO MAKE A NATION 20–25 (1993) (discussing federalism and political theory). W05_FALLONE 10/18/2010 11:45:59 AM 1070 WAKE FOREST LAW REVIEW [Vol. 45 authority that the federal government possesses is the authority to exercise the powers expressly delegated to it in the Constitution’s text.17 This view is in accord with the “limited government” and “structural” approaches that were advanced by some critics of the Bush administration’s tactics in the “war on terror.”18 In order to emphasize the fact that this approach has its roots in the basic conceptualization of the idea of sovereignty under our Constitution, this Article will refer to this approach as the “delegation view.” While the delegation view was ascendant during the years immediately following our nation’s founding, the compact view made inroads into the Supreme Court’s constitutional analysis in cases involving slavery and immigrants. In particular, immigration cases have provided the context for the persistent expansion of the compact view within our borders.19 The theory of the “unitary executive,” advanced by proponents of a broad presidential power, is only the most recent expression of the compact view as the prevailing method of defining the scope of federal power.20 However, there are signs that popular opinion is shifting in favor of a return to the delegation view. A. The Constitution as a Compact The instrumentalist justification for adopting a contractual view of the Constitution is that it provides a basis for definitively determining the order of competing claims and interests among the people, the state governments, and the federal government.21 The Constitution itself provides the textual evidence of the original bargain by which the parties to the agreement sought to further their interests. The primary benefits to be gained by reading the Constitution as a compact flow from the procedural method by which conflicting claims are resolved via reference to the textual evidence of the original bargain.22 These benefits are stability and objectivity in connection with the interpretation of the content of the Constitution. The difficulty with the compact view of the Constitution, on a 17. This strand of American political philosophy is sometimes called “democratic nationalism” or “Hamiltonianism.” See Lind, supra note 16, at xii– xiii. 18. President Bush used the phrase “war on terror” when he addressed a joint session of Congress on September 20, 2001. See RON SUSKIND, THE ONE PERCENT DOCTRINE 19 (2006). The Obama administration has consciously avoided using the phrase “war on terror,” instead emphasizing that the United States was (and remains) at war with al-Qaeda. See Peter Baker, Obama’s War over Terror, N.Y. TIMES, Jan. 17, 2010 (Magazine), at 30, 33. 19. See infra notes 163–80 and accompanying text. 20. See infra Part III.D. 21. See Christopher L. Eisgruber, The Fourteenth Amendment’s Constitution, 69 S. CAL. L. REV. 47, 50–51 (1995). 22. See id. W05_FALLONE 10/18/2010 11:45:59 AM 2010] CHARTERS, COMPACTS, AND TEA PARTIES 1071 conceptual basis, is in identifying the parties to the contract. Possible alternatives are to regard the Constitution as a contract among the states, as a contract among the persons alive during ratification, or as a social contract that binds the current members of our society.23 The view that the Constitution should be interpreted as a compact among the several states was influential early in our nation’s history,24 and that view still has its adherents, but the idea is rarely advanced among academics today. Instead, contemporary constitutional theory approaches the idea of a constitutional compact through the lens of the social contract.25 The concept of membership is an obvious starting point for defining the boundaries of the social contract. Who are “the people” who can assert the protection of that document’s provisions? A process that identifies a particular community as comprising “the people” for constitutional purposes will simultaneously define all residual human beings left out of that community as “outsiders.”26 Logically, the terms of the “constitutional bargain” can only apply to those who are part of the deal. In his 1996 book, Strangers to the Constitution, Professor Gerald Neuman offered four separate approaches toward conceptualizing the Constitution in order to define its reach: universalism, membership, mutuality of obligation, and global due process.27 The first approach, “universalism,” treats all people in all places as persons protected by the text of the Constitution.28 The second approach, which Neuman calls “membership,” uses concepts of social contract to define a subset of individuals both within and without our borders who receive constitutional protection.29 Neuman’s third approach is “mutuality of obligation,” which equates the reach of the Constitution to the sphere within which nonresidents are obligated to obey United States municipal law.30 This model denies constitutional rights to persons outside of our 23. Id. at 57–62. 24. See R. KENT NEWMYER, JOHN MARSHALL AND THE HEROIC AGE OF THE SUPREME COURT 105 (2001). 25. See, e.g., Paul Lermack, The Constitution Is the Social Contract So It Must Be a Contract . . . Right? A Critique of Originalism as Interpretive Method, 33 WM. MITCHELL L. REV. 1403, 1429–33 (2007). But see SANFORD LEVINSON, CONSTITUTIONAL FAITH 111–14 (1988) (arguing that the Constitution should be read as a covenant rather than in purely contractual terms). 26. See Peter H. Schuck, Citizenship in Federal Systems, 48 AM. J. COMP. L. 195, 207 (2000) (“The political dimension of citizenship . . . [is] tempered by an exclusionary principle that certain types of political activity . . . [are] limited to those who meet the standards of full membership in the polity . . . .” (citations omitted)). 27. See NEUMAN, supra note 12, at 4–8. 28. Id. at 5–6. 29. Id. at 6–7. 30. Id. at 7–8. W05_FALLONE 10/18/2010 11:45:59 AM 1072 WAKE FOREST LAW REVIEW [Vol. 45 borders who are not bound to respect our laws.31 Finally, Neuman identifies a fourth approach that he calls “global due process.”32 Under this model, judges perform a case-by-case inquiry in order to determine the reach of the Constitution. In so doing, judges balance the potential application of constitutional protections to noncitizens outside of our borders against government interests that counsel against recognizing such protections.33 While applauding the usefulness of Neuman’s analysis and his historical insights, critics have pointed out that, ultimately, the universalism, mutuality of obligation, and global due process approaches are difficult to distinguish from each other.34 Indeed, it appears that all four of Neuman’s separately identified approaches ultimately rely on a “social contract” model of the Constitution.35 That is, each of his approaches is fundamentally premised on the idea that the Constitution embodies a contractual set of reciprocal obligations between identifiable individual and governmental actors. Therefore, defining membership—separating those individuals who are protected by the Constitution’s terms from those who are not—becomes the core focus under any compact-based reading of the Constitution. Difficulty arises, however, because the original text of the Constitution does not include any definition of membership. The ratification of the Fourteenth Amendment helps to clarify the situation somewhat, insofar as it clearly identifies a category of individuals who cannot be denied membership (natural persons born within the territorial United States).36 However, the Fourteenth Amendment does not address the question of whether membership in the social contract can be extended to include natural persons born outside of the United States. Similarly, the Fourteenth Amendment does not speak to whether corporations and other juridical “persons” might be included as members of the social compact along with natural persons.37 Finally, the Fourteenth 31. Id. at 7. 32. Id. at 8. 33. Id. 34. See, e.g., Hiroshi Motomura, Whose Immigration Law? Citizens, Aliens, and the Constitution, 97 COLUM. L. REV. 1567, 1577–79 (1997) (reviewing NEUMAN, supra note 12). 35. See NEUMAN, supra note 12, at 9–13 (describing the “social contract” tradition that illuminates his four interpretive models); see also Akash R. Desai, Note, How We Should Think About the Constitutional Status of the Suspected Terrorist Detainees at Guantanamo Bay: Examining Theories that Interpret the Constitution’s Scope, 36 VAND. J. TRANSNAT’L L. 1579, 1604–09 (2003) (discussing Neuman’s “membership” and “mutuality of obligation” approaches as variants of social contract theory). 36. U.S. CONST. amend. XIV, § 1. 37. Cf. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 929–30 (2010) (Stevens, J., concurring in part and dissenting in part) (disputing the idea that the original understanding of free speech protected by the First Amendment extends to corporations). W05_FALLONE 10/18/2010 11:45:59 AM 2010] CHARTERS, COMPACTS, AND TEA PARTIES 1073 Amendment does not specify which branch of the federal government—the President, Congress, or the Supreme Court— possesses the ultimate authority to make determinations of membership status under the Constitution. B. The Constitution as a Charter of Delegated Powers A more promising alternative to the compact view is the argument that the Constitution should be conceptualized as a document that creates a government of limited delegated powers. Sometimes called a “limited government” approach,38 sometimes identified as a “structural” approach,39 and alluded to by Neuman as a type of “organic” utilitarianism,40 this approach to interpreting the Constitution posits that the United States government simply does not possess the power to act in certain situations.41 Therefore, a delegation approach conceptualizes the reach of the text in a way that is not dependent on any definition of the social contract. The delegation view provides a structural approach to interpreting the reach of the Constitution. This approach focuses on the scope of power delegated to the federal government in order to define limitations on the exercise of federal authority that apply even against nonmembers.42 The result is an understanding of the scope of federal government power that differs from the result obtained under contractually derived definitions of “membership.” The “delegation view” starts with the proposition that the federal government is the creation of the Constitution and that its sovereign power is limited. As an artificially created entity, the federal government is incapable of possessing any power or authority that is not granted to it by our nation’s foundational document.43 Under this view of the nature of federal power, the government’s ability to perform an act does not depend on the identity of the individual who is the subject of government action. Neither a citizen nor a noncitizen can be subjected to any exercise of government power that is an ultra vires act.44 Therefore, it is 38. See Robert Knowles & Marc D. Falkoff, Toward a Limited-Government Theory of Extraterritorial Detention, 62 N.Y.U. ANN. SURV. AM. L. 637, 641 (2007); Kermit Roosevelt III, Guantanamo and the Conflict of Laws: Rasul and Beyond, 153 U. PA. L. REV. 2017, 2035 n.89 (2005). 39. See J. Harvie Wilkinson III, Our Structural Constitution, 104 COLUM. L. REV. 1687, 1697–1703 (2004); Christopher L. Eisgruber, Political Unity and the Powers of Government, 41 UCLA L. REV. 1297 (1994). 40. See NEUMAN, supra note 12, at 6. 41. Id. 42. See infra notes 43–44 and accompanying text. 43. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404 (1819) (“This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it . . . is now universally admitted.”). 44. See Downes v. Bidwell, 182 U.S. 244, 277 (1901) (noting the existence of constitutional prohibitions that “go to the very root of the power of Congress to W05_FALLONE 10/18/2010 11:45:59 AM 1074 WAKE FOREST LAW REVIEW [Vol. 45 unnecessary to classify an individual as a member or a nonmember prior to evaluating the legitimacy of the government action directed towards that individual. A recognition that the primary objective of the Constitution is to limit the power of government, rather than to identify and protect a sphere of individual rights, has important implications. First, this recognition suggests that a general distrust of centralized power is an integral part of the constitutional design.45 Second, this recognition elevates the principles of federalism and separation of powers to the level of basic constitutional commands, even though these principles are not explicitly referenced by the text of the Constitution.46 While federalism and separation of powers principles are often invoked by critics of an overreaching Congress, it is important to note that the allocation of powers to Congress under Article I of the Constitution serves as a limitation on the powers exercised by the executive branch as much as it does a delegation of authority to the federal legislature.47 C. Compact and Delegation Contrasted The predominant feature of the compact view is that, with the exception of the express guarantees of specified rights contained in the text, individual persons do not function as parties to the foundational compact between the federal government and the states. Instead, the interests of individuals are promoted in the constitutional system in two indirect ways. First, individual interests are preserved via the proxy of maintaining a sufficient level of state government power to serve as a counterweight to the federal government.48 Second, individual interests are protected by a strict policing of the separation of powers between the three federal branches.49 In regards to those individual rights guaranteed in the text of act at all, irrespective of time or place”). “[W]hen the Constitution declares that ‘no bill of attainder or ex post facto law shall be passed,’ and that ‘no title of nobility shall be granted by the United States,’ it goes to the competency of Congress to pass a bill of that description.” Id. 45. See Patrick M. Garry, Liberty Through Limits: The Bill of Rights as Limited Government Provisions, 62 SMU L. REV. 1745, 1755 (2009) (“The primary motivation underlying the constitutional scheme of separation of powers was the framers’ fear of centralized power.”). 46. Id. at 1754–55. 47. See Robert J. Reinstein, The Limits of Executive Power, 59 AM. U. L. REV. 259, 304–07 (2009). 48. See WAYNE D. MOORE, CONSTITUTIONAL RIGHTS AND POWERS OF THE PEOPLE 105–06 (1996). 49. See, e.g., Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring) (“Separation of powers operates on a vertical axis as well, between each branch and the citizens in whose interest powers must be exercised. The citizen has a vital interest in the regularity of the exercise of governmental power.”). W05_FALLONE 10/18/2010 11:45:59 AM 2010] CHARTERS, COMPACTS, AND TEA PARTIES 1075 the Constitution, the fundamental characteristic of the compact view is that it limits the possession of these rights to those persons who are members of the social contract. Only members of the community who are parties to the contract are allowed to claim the individual rights that the Constitution guarantees.50 As a result, the legitimacy of government action under the Constitution depends entirely upon whether a member of the political community is aggrieved. Contracts do not create any rights for nonparties, and under a compact view of the Constitution the guarantees of individual rights contained in the text do not apply to “outsiders” to the community. The Constitution is read to impose a form of privity of contract.51 This social contract view of the Constitution relies on membership models that incorporate certain assumptions. All such models reveal a hesitancy to define membership in ways that allow aliens to impose their membership status on the United States without the consent of our government.52 In addition, models that recognize membership status for noncitizens for some purposes beg the question of whether noncitizens should be granted membership status for all purposes. For example, acknowledging due process rights for Guantanamo Bay detainees under the Constitution raises the question of whether the detainees also possess First Amendment rights.53 Membership implies an all-or-nothing proposition, not gradations of rights. Therefore, the compact view assumes that the consent of the government is necessary before membership can be asserted, and that there are no gradations of rights among the members of the social contract.54 However, these assumptions are derived from the asserted contractual nature of the Constitution and not from any source in the text of the document itself. In contrast, the delegation view does not require us to make the assumption that government consent is necessary before individuals born outside of the United States can make constitutional claims. Similarly, the delegation view does not require us to conclude that by recognizing that the Constitution confers certain rights on an individual we are necessarily determining that the individual possesses the full range of individual liberties guaranteed by the text. The reason for this distinction arises from the manner in which individuals enforce constitutional rights. The primary purpose of the Constitution is to protect “the people” in the enjoyment of their 50. See PETER H. SCHUCK & ROGERS M. SMITH, CITIZENSHIP WITHOUT CONSENT 36–40 (1985) (reviewing the advantages and disadvantages of a system of government built around political membership). 51. Id. 52. See id. at 37. 53. See id. at 40 (noting that a community’s “humanitarian values . . . may justify certain sorts of rights and assistance to aliens”). 54. See id. at 36–40.