New Deal-era Secretary of Labor Frances Perkins once recounted a conversation she had with Franklin Roosevelt about how feasible it was to create a government-administered system of social insurance for the elderly. “Well, do you think it can be done?” the president asked his longtime advisor and friend. “There are constitutional problems, aren’t there?” To this Perkins conceded, “Yes, very severe constitutional problems.” Under the traditional understanding of the enumerated powers of the federal government, there simply was no congressional power to create a national system of social insurance. “But what have we been elected for except to solve the constitutional problems?” Perkins asked. “Lots of other problems have been solved by the people of the United States, and there is no reason why this one shouldn’t be solved.”
Perkins included this story in a speech at the Social Security Administration headquarters in 1962, and she was remarkably candid about her view that the Constitution was an obstacle to be overcome rather than a legal framework to work within. “The constitutional problem was the greatest one,” she said. “How could you get around this business of the State-Federal relationships? It seemed that it couldn’t be done.”
But it could be done–at least politically–and it was. As Perkins was laying out what she deemed to be the “constitutional problem” at a party hosted by Harlan Fiske Stone, she received this bit of advice from the future Chief Justice: “The taxing power, my dear, the taxing power. You can do anything under the taxing power.” Thereafter Perkins’s strategy for overcoming the constitutional limitations on the powers of the federal government was to rely on Congress’s enumerated power to “lay and collect taxes” in order to provide for the “general welfare of the United States.”
Tellingly, the social insurance program created by the Social Security Act of 1935 was funded primarily through payroll taxes and distributed as direct payments to individual retirees. Still, in the 1930s there were lingering questions about the constitutionality of Social Security. Is the grant of power to spend money for the “general welfare” limited to the enumerated powers in Article I, Section 8 of the Constitution? Can direct payments to individuals truly be said to promote the general welfare? Are there implicit federalism-based limitations on the exercise of Congress’s taxing and spending powers? These were all live questions throughout the nineteenth and early twentieth centuries. But as John Eastman explains, the “contemporary view”–which the Court adopted in a pair of 1937 cases upholding the Social Security Act–is that Congress’s power to provide for the ‘general Welfare’ is a power to spend for virtually anything that Congress itself views as helpful.”
The Supreme Court’s contemporary jurisprudence continues to follow this track. It was, after all, the taxing power that underwrote Chief Justice John Roberts’ recent decision upholding the individual mandate portion of the Affordable Care Act. That act, Adam Freedman contends in The Naked Constitution: What the Founders Said and Why It Still Matters, is the “perfect storm of the Obama era,” a byzantine thousand-page piece of legislation that brings “together the accumulation of federal power and the degradation of individual liberty” that plague modern American government. Freedman’s proposed solution to rein in federal government power and protect individual liberty is to strip the Constitution of its judicial and academic glosses. The “naked” Constitution is the original Constitution free of its modern trappings, and the book reads as an extended argument for originalism as a method of constitutional interpretation.
Freedman’s case for originalism is straightforward, and it rests on three premises: The Constitution is law, the law should be followed, and the meaning of the Constitution today can and should be derived from the original public meaning of the text at time of its ratification. Following this method of interpretation puts Freedman at odds with most of the Court’s controversial twentieth-century decisions. In chapters devoted to constitutional personhood, Congress, the presidency, the courts, speech, religion, guns, property, criminal punishment, and federalism, Freedman walks the reader through landmark Supreme Court cases and offers his own take on the original public meaning of relevant constitutional provisions.
For the uninitiated, The Naked Constitution is Con Law 101 taught by an irreverent instructor and an unabashed conservative. And although the book doesn’t offer anything new to those already well-versed in American constitutional law, Freedman’s polemics and witty sarcasm enliven the discussion and offer a humorous escape from the doldrums that normally come with reading about twentieth-century constitutional litigation.
Still, there are limits to how far original public meaning can take us. In a 1988 speech at the University of Cincinnati Law School, Justice Antonin Scalia famously called originalism the “lesser evil” (when compared with all other theories of interpretation), and he identified what he took to be originalism’s two greatest challenges: first, original public meaning can be extremely difficult to divine; and second, even when it is known, very few people are willing to adhere to original meaning undiluted by a commitment to following established legal precedent.
To these challenges we might add a third: Some of the provisions in the Constitution are maddeningly vague, and there simply is no one original public meaning. Although it is perhaps asking too much for Freedman to adequately treat every facet of originalist theory and method, the practical project Freedman is trying to advance is hamstrung by the challenges and inherent limits of originalism.
The fact that originalism requires hard work is not, of course, a mark against it, but it is worth highlighting how originalist methodology may not be able to arrive at unequivocal answers to complicated historical questions. A point on which Scalia and Freedman agree, for example, is that the original public meaning of the word “person” in the Fourteenth Amendment does not include the unborn, so that states ought to be free to regulate abortion (or not) as each sees fit.
Yet it is far from clear, as a historical matter, that the public in 1868 understood the word “person” to be shorthand for “human beings after birth.” Consider the report written by the Ohio Senate Committee on Criminal Abortion and appended to the Ohio legislative journal just a few months after the same legislature voted to ratify the Fourteenth Amendment. The declared impetus for the restrictive abortion statute proposed by the committee, and approved by the full legislature, was a belief that “the fetus in utero is alive from the very moment of conception” and that “the willful killing of a human being, at any stage of its existence, is murder.” It is certainly possible that the ratifying legislature understood the word “person” in the Fourteenth Amendment to be a legal term of art that meant post-natal human beings, but the historical question is more complex than either Scalia or Freedman (or most any other modern lawyer or judge, for that matter) admits.
Suppose, however, that we had conclusive evidence of the original public meaning of some aspect of the Constitution and that the original meaning ran counter to long-established constitutional doctrine and practice (such as the establishment of a national bank or the line of cases upholding the constitutionality of the New Deal). It is implausible to think that we could, as a practical matter, put that genie back in the bottle. Yet this seems to be what is entailed by originalism unadulterated with a commitment to following legal precedent, and it is part of the reason Scalia identifies himself as only a “half-hearted” originalist.
Even Frances Perkins and Franklin Roosevelt doubted that Social Security was constitutional according to the original terms of our fundamental law; yet today Social Security is the political third rail that cannot be touched. Any theory of originalism must come to terms with the fact that our constitutional project is dynamic, and longstanding deviations from the original meaning of the Constitution really do change the constitution of our government and our collective understanding of its powers and limits. This is not an argument for the pernicious “Living Constitution,” and it is certainly not a case for judicial supremacy in constitutional interpretation. It is, however, a sober reflection on the actual state of American politics.
On a certain level, of course, Freedman recognizes this. Given the small likelihood that our judges and legislators will suddenly start following the original meaning of the Constitution, Freedman’s final suggestion is to call an Article V convention for the purpose of inaugurating structural reforms in our national government. The idea has merit (and bipartisan support), but this proposal also serves as a fitting reminder of the limits of originalism. Article V of the Constitution provides that on application of two-thirds of the state legislatures, Congress “shall call a Convention for proposing Amendments,” and those amendments must be ratified by three-fourths of the state legislatures or state ratifying conventions.
The Constitution does not, however, say who the delegates will be or how they will be chosen, how the convention will work, what the procedure for proposing an amendment would be, or who gets to decide these questions. Indeed, Madison recorded in his notes on the Constitutional Convention his own worry that “difficulties might arise as to the form, the quorum, etc. which in constitutional regulations ought to be as much as possible avoided.” Commenting on an earlier iteration of Article V, Madison similarly asked, “How was a Convention to be formed? by what rule decide? what the force of its acts?”
Filling in the details left unaddressed by Article V would necessarily take us beyond an inquiry into original public meaning. That may not be such a bad thing, since there are structural aspects of our Constitution that need reform, particularly in light of modern challenges that have led to our impending fiscal disaster. Alan Simpson and Erskine Bowles–co-chairmen of the bipartisan National Commission on Fiscal Responsibility and Reform–have spent the year promoting their plan to reduce the federal deficit by $4 trillion over the next ten years. The plan includes a mix of spending reductions, entitlement reforms, and tax increases. But even if the Simpson-Bowles plan were adopted, as John DiIulio pointed out in the spring issue of National Affairs, it would do very little to head off the public debt crisis in the United States. Based on best-case scenarios, the Congressional Budget Office projects federal deficits of more than $600 billion per year for the foreseeable future. The Simpson-Bowles plan would add $2 trillion (instead of $6 trillion) to the national debt over the next decade, but it would hardly put our fiscal house in order.
The inability of Congress even to agree on a moderate deficit reduction plan such as the one proposed by the Simpson-Bowles commission reflects a serious–and in the long run perhaps fatal–defect at the very heart of our republic. Many informed, intelligent observers see the coming financial crisis clearly, but collectively we seem unable to prevent it. By far the most important part of The Naked Constitution, then, is its discussion of possible constitutional reforms, ranging from a balanced budget amendment to a line-item veto to the repeal of the Seventeenth Amendment. Some proposals are better than others, but each has the virtue of being a serious suggestion about how to reform the structural features of our Constitution.
In Federalist 48, Madison highlighted the inability of mere “parchment barriers” to block “the encroaching spirit of power.” Freedman nicely details how the words of the Constitution have been, at best, mere parchment barriers against the accumulation of power and the assault on individual liberty. The practical solution to the problem of how to maintain limited government, as Madison recognized elsewhere, is not to add more parchment barriers that will be interpreted away by public officials, but so to contrive “the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”
History and experience suggest that it is necessary, from time to time, to reform the interior structure of our government to achieve the ends set out in the Constitution’s preamble. No doubt Americans have vastly different ideas about how to do this, but it is a conversation worth having. And if we are unwilling to have that conversation, we must at least acknowledge that the problem is not the Constitution. It is us.
This article is reprinted with kind permission from Public Discourse: Ethics, Law, and the Common Good, an online publication of the Witherspoon Institute that seeks to enhance the public understanding of the moral foundations of free societies by making the scholarship of the fellows and affiliated scholars of the Institute available and accessible to a general audience.