Elements of Law 3.0 Notes and Readings IV-E (The Role of the Courts: Constitutional Interpretation; A Special Case?)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we consider the first part of section IV of the materials:  IV.E.The Role of the Courts: Constitutional Interpretation, A Special Case?   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

 IV.E.The Role of the Courts: Constitutional  Interpretation, A Special Case?

Notes for

Readings: The section applies the statutory interpretation materials that we have already covered specifically to the constitutional context, with the addition of other readings identified below
--Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 William & Mary Bill of Rights Journal 117 (2003). READ INTRODUCTION AND PART II (pp. 117-28; 152-72).  
--McColloch v. Maryland, 17 U.S. 316 (1819)

1. Originalist Theories: Textualism

a. Word textualism
b. Clause bounded textualism
c. Holistic textualism (the document)
d. Structural textualism (text in light of overarching principles)
--James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893).
-- William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976)
--Poe v. Ulman (Harlan dissent)

2. Originalist Theories: Original Understanding

a. Social-cultural plain meaning—Intention of the Founders
b. Original Purpose (interpretation the best reflects Framers’ original purposes)
--Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (The University Center for Human Values Series; Princeton University Press (July 27, 1998) (ISBN-9780691004006)) READ pp. 3-18 and 23-47.

3. Legal Process Theories

--John Hart Ely, Democracy and Judicial Review, 28 Stanford Lawyer 3-9 (Spr./Sum. 1982) (printed as Vol. 17(1)).

4. Evolutive Theories

a. Republican Theories
b. Anti-Subordination Theories (Feminist and Critical Race Theories)
c. Customary Law Theories
--Gary Minda, The Jurisprudential Movements of the 1980s, 50 Ohio St. L.J. 599 (1989)
--Poe v. Ullman, 367 U.S. 497 (1961) (Harlan dissent)
--Optional: David Strauss, The Living Constitution (New York: Oxford University Press 2010).

We have been considering the methods and objectives of judicial review as both an exercise of dispute resolution and as an instrumentality in the construction and elaboration of the institutions of law.  We have seen how the courts have provided a justificatory structure supporting the embedding, within the judicial function (as understood from out of a common law cultural sensibility), of the authority to construe and apply constitutional text. That authority extends not merely to the interpretation of text directly, but also its application to the validity of the actions of the executive branch and the validity of statutes and administrative regulat6ions against constitutional constraints. The rationale was elegantly simple--courts are constituted to resolve disputes; the resolution of disputes requires the application of valid standards and rules; statutes that are beyond the power of Congress to pass are inherently invalid; courts must therefore determine the validity of statutes in order to avoid miscarriages of justice and the diminution of their judicial authority to resolve disputes among litigants in accordance with law. In the process, of course, the judicial function acquired a substantially distinct role, one in which the judicial collective (not of course the individual judge) is situated in the role of definitively extracting meaning from the words of a text whose authority is paramount.

The mechanics of that role, and its sociology, is explored in the first reading,  Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 William & Mary Bill of Rights Journal 117 (2003).  Judicial meaning making is made not merely as against text, but is part of the larger function of creating institutional structures for meaning making which reinforces the authority of the meaning makers. The judge thus assumes a relationship to the construction of text, and especially of constitutional text, that mimics that of the priest with divine text. "despite two centuries of inconsistent juridical constitutionalism, and the warnings of Presidents and commentators, the authority of judges has grown. That privileged place is protected by the cultivation of neutrality. This neutrality based on devotion to the law, rather than to law’s partisans, becomes essential to the judges’ status." (Ibid., 105-106).  And, indeed, the techniques of judicial interpretation may well deepen reliance on the judge as the sole ostensibly neutral interpreter of text, one whose role is form ally constrained precisely by a fidelity to the document and to an avoidance of personal or political agenda and whose deviations form this ideal cause tremendous criticism. (Ibid., 122-25).  The semiotics of the judicial engagement with text (Ibid., 140-144) is considered in its dual role--both in making meaning and in constructing of institutional mechanics that reinforce the essential roile of judicial interpretation for the preservation of the structures of law.

If the courts are said to have the constitutionally assigned task of both interpreting constitutional text but also of assessing the constitutional legitimacy of assertions of legislative and administrative authority thereunder, then, how is the Constitution itself to be read to determine the extent of the limited powers assigned to the legislative branch; and what effect would this exercise have on the residuary power of states?  Are the methods to be used to interpret the Constitution special to that document, that is distinct from the techniques and methods we have been discussing relating to statutory interpretation? These are the questions taken up in this last section pof Part IV of the materials.

As a general matter, the methods of interpretation, whether of statute or constitution, tend to be structured along the same general lines.  At the greatest level of generality, courts will strive to embrace methodologies that reduce the appearance of personal engagement with law or application.  That is, courts, as an institution, retain their legitimacy by adopting any one or more of a number of techniques that separate the individual judge from the process of decision.  Rule of law is thus intertwined with the methodologies of judging and we have considered a number of distinct techniques  that have been developed and applied that are meant to enhance the legitimacy of the judicial function by grounding it on methods and sources extrinsic to the individual judge.

Those techniques, as we have come to understand them, can be categorized as falling within two broad camps.  These camps aggregate premises about the most desirable best approach to the issue of interpretation and then elaborates techniques that are meant to effectively apply these premises. We have identified these distinct camps as formalist and functionalist.  Formalist approaches start from the premise  that the product of the legislature (or of the people) ought to be accorded great respect.  It implies a narrow scope of judicial engagement with that product, grounded in another premise--that the judicial function is quite limited in the face of legislation or constitutional provision, and that it performs its function best by interfering with the legislative power (represented in its statutes) or the administrative power (represented in administrative decisions) as little as possible. Formalists privilege text and exercise substantial restraint in deviating from the meaning of text.  The techniques of textualism, then, proceed form a formalist approach. Functionalist approaches start from the premise that words matter less than objective.  While the legislative power is respected, and the courts remain committed to non-interference with legislative action (as long as it can be reconciled to higher law),  the courts seek to mold the specific text of legislation to the will of legislature.  That approach is based on the premise that bad or ambiguous language of a specific text is always subordinate to the will of the legislature that sought to memorialize its intention or objectives in the words of the statute. Functionalists, then, privilege either the intention of the legislatures that enacted a provision, or the objectives of that legislation discerned from sources intrinsic and extrinsic to the text itself.

Both formalist and functionalist approaches to statutory and constitutional interpretation have spawned a significant number of techniques for their application.  We have considered the broad outlines of these techniques earlier in these materials (e.g.,Elements of Law 3.0 Notes and Reading IV-C (The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation)).  Do these techniques, and the premises underlying them, necessarily assume a distinct character, when the courts interpret and apply constitutional rather than statutory text? Are additional techniques necessary to enhance the legitimacy of the judicial role in interpreting and constitutional text as against the actions of the coordinate branches of government?  Is there a role for "originalism" in constitutional interpretation that is distinct from the formal (textualist) or functionalist (intentionalist or objectivist) approaches to statutory construction?  

To answer that question, it is perhaps prudent to start with the thinking of influential members of the Founders' generation. For that purpose we consider Justice Marshall's approach to constitutional interpretation, and the array of techniques he thought authoritative, in McCulloch v. Maryland, 17 U.S. 316 (1819). The facts of the case are not complex.  The case revolved around political disputes over the power of the federal government to charter a national bank and of the states to tax this entity. The second Bank of the United States was established by legislation of 1816 as an incorporated entity under federal law. It was chartered as a private corporation but one with public functions.  It was intended that the Second Bank of the United States handle the banking transactions for the general government and to that end was accountable to Congress and the President through the Secretary of the Treasury As chartered the general government owned twenty percent of the bank's capital, making it the bank's largest shareholder; the rest was owned by about four thousand private investors, including European investors. (See, Bray Hammond, Banks and Politics in America, from the Revolution to the Civil War, Princeton: Princeton University Press (1957)).

The Bank had principal offices in Philadelphia, and also opened an office in Baltimore thereafter. The Maryland legislature then sought to tax the operations of all bank branches established in Maryland, the only one of which was the Baltimore branch of the Second Bank of the United States.  In addition to the tax on the operations of the Bank, the legislation sought to fine bank officials who transacted bank business without paying the tax. James William McCulloch, head of the Baltimore Branch of the Second Bank of the United States, refused to pay the tax. The lawsuit was filed in Maryland state court by John James, an informer who sought to collect an informer's fee, which was provided in the Maryland statute, in Maryland state court.  Eventually the Maryland Court of Appeals upheld the application of the Maryland tax. On appeal to the U.S. Supreme Court Maryland argued that the Act constituting the Second Bank of the United States was invalid as beyond the power of Congress; McColloch argued that the Maryland tax on the bank (and the fines on bank officials) was foreclosed by the federal constitution. 

Marshall first reminds of the authority of the US Supreme Court to consider the interpretation of the federal constitution.  He recognizes the importance of the decision for demarcating the limits of the authority of the branches of the federal government and between the federal government and those of the states. "On the Supreme Court of the United States has the constitution of our country devolved this important duty."  (McColloch, supra).

Marshall starts with a consideration of the first question--whether the Constitution vests the general government with the power to incorporate a bank. He starts the analysis, not with a reference to the text of the Constitution (textualist analysis) or by exploring the intent of the Constitution's framers (originalism) or that of the drafters of the Second Bank of the U.S. statute (functionalism). None of these techniques, now held up to Americans as the principle source of legitimate interpretive method, was considered sufficiently authoritative as an initial line of reasoning.  Rather, Justice Marshall looked to acquiescence as an interpretive technique. Marshall notes that the issue of the effort to test the validity of the federal efforts to charter a nationbal bank appeared to come very late.  A federally chartered bank had existed unchallenged before the Second Bank of the UNited States was chartered, and treated for many years as valid by legislatures and courts for many years. That long pewriod of undisturbed operation ought to count for something in constitutional interpretation, Justice Marshall argues.  But how much ought it to count?  Marshall provides a standard for weighing acquiescence in constitutionla interpretaiton:

It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded. (McColloch, supra).

Acquiescence will have no constitutional significance (that is will provide no evidence of appropriate interpretation through uncontested actions of constitutional actors)  where the acquiescence touches on a usurpation of important rights or prerogatives.  However, (1) where there exists an ambiguity in constitutional text, (2) with multiple plausible resolutions, (3) that do not involve fundamental questions of constitutional substance, (4) but touch only on the distribution of power among representative institutions of government (e.g., between state and federal legislatures), (5) the long practice of government uncontested ought to be either dispositive or given great weight in resolving the constitutional ambiguity. In a sense, Marshall recognizes the political element of the constitutional order, and the prerogative of the political branches to sort out their relationships over time by their respective practices.  When such practices are challenges, the law of the constitution may come into play but in the absence of a threat to fundamental substantive constitutional values,  the interpretation of the political branches themselves may be dispositive. Here is the transformation of notions of equitable estoppel into a principle of constitutional jurisprudence.

Marshall then takes this standard and applies it to the case of the Second Bank of the United States.  He finds that the chartering of the bank was undertaken by the fist Congress and was well known and understood at the time.  It was heavily contested at the time of its enactment during the political debates on its enactment but was eventually approved.  Here perhaps is an oblique reference ot the opposition of Madison to the first bank, Madison eventually concurred in the constitutionality of the establishment of a national bank. The first bank legislation was eventually permitted to expire but was thereafter revived by those who had opposed the original legislation.  "It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and plain usurpation, to which the constitution gave no countenance."  (Ibid).

But, Marshall notes, Maryland has argued that the acquiescence ought to count for little because the act of asserting federal authority ot charter a bank was itself a "bold and daring usurpation" touching on the fundamental division of authority between states and the general government.

In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion. (Ibid).

The act of chartering a bank is important precisely because the general government is capable of exercising only those powers narrowly assigned to it from the states, from whom the entirety of the powers of the general government  derive.  In other words, popular sovereignty remains in the states, and through the states only a portion is delegated to the general government.  In that arrangement, acquiescence is impossible as a usurpation of the sovereign power of the people resident in the respective states of the union.   The general government, as inferior to those of the states (in which sovereign authority resides) is incapable of exercising power without the express grant thereof by the states.

This arrangement of the federal system created by the constitution of the general government Justice Marshall rejected (though some might argue that the position Marshall took here was not effectively accepted except by force of arms  after 1865).  Marshall argued that the general government was not a creature of the states.  It was true enough that the constitutional convention was organized along state lines.  But the proposal that emanated from that convention  was thereafter submitted not to the states for their approval (something that would have merely required legislative acquiescence) but to the people of the several states for their approval.  The people acted through their states but not as citizens of those states.  The people effectively acted directly to organize a general government directly, within which they fit the states.  Thus the states did not create the general government, the people created it and then divided the grant of their sovereign power between general and state governments. "The government of the Union, then, (whatever may be the influence of this fact on the case,) is,  emphatically, and truly, a government of the people.  In form and in substance it emanates from them.  Its powers are granted by them, and are to be exercised directly on them, and for their benefit." (Ibid). The constitution, in that sense, bound not just the general government, but the states as well.   

But extracting the general government from a subordinate position in relation to the states does not solve the constitutional difficulty, because, as Marshall notes, the Constitution vests the general government with only a defined set of enumerated powers.  The nature and scope of those enumerated powers, however, are ambiguous and "the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist." (Ibid).  If Marshall is to be believed, then, the plain meaning rule of textualism has little place in the construction of the enumerated powers of the federal government. If that is the case and Marshall understood as an authoritative source of original understanding, then modern ideas about the paramount value of textualism in constitutional interpretation are by the very morhtods of original understanding itself to be rejcected as a principal source of constitutional interpretation (at least of the extent of the enumerated powers of the general government). 

If, as Marshal suggests, the extent of the general government's enumerated powers are ambiguous, how does one go about making sense of those powers?   Marshall starts with the Supremacy clause of th constitution: however limited its powers, within its appropriate exercise the powers of the federal government are supreme. This is supported by political principal--"This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts." (Ibid).

This is all well and good but the analysis brings Marshall back to the text--"Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that every thing granted shall be expressly and minutely described." (Ibid).  B ut what seems like a clear statement of plain meaning is actually quite ambiguous.  Marshall tells us:

Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people;" thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. (Ibid).

To resolve this ambiguity, Marshall derives theory from his sense of the intent of the framers and the original understanding of the times.

The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public.

The objective of the American constitutional order wads to avoid the perceived deficiencies of the governmental system that preceded it.  Those deficiencies were well understood at the time and inform the reading of the successor document. Principal among these deficiencies were the in flexibilities built into the former document.  Thus the Constitution itself had as one of its objectives the cultivation of ambiguity. That ambiguity is necessary to make the document accessible as a set of principles and constraints of a general nature, and to ensure that the document could be flexible enough to stretch over changes in the tastes and conditions of the Republic--that is the constitution was designed to be useful over the long term.  The plain meaning of the document is plainly simple then--there is no plain meaning, only possibility that is expressed through the actions and choices of the people and the instrumentailities of the government created, and constrained in a general way by the language of the document, but not as to the detail. "Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language." (Ibid). For the detail the coordinate branches of government must exercise their authority and in the exercise create constitutional fact from the theory inherent in the document's objectives. And as support, Marshall draws on his sense of the harmonious reading of the constitution as a whole. "Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget, that it is a constitution we are expounding."

And thus to the problem of the question of the extension of a power in the federal government that does not on its face appear to have been enumerated.  To that end, Justice Marshal engages in an exercise of structural textualism, of deriving principles of substance from the the text of the constitution that are in turn in harmony with the original objectives of the framers, and from which the ambiguity of the language of the constitution can be resolved. Marshal suggests that it might be possible to imply powers from those enumerated in the constitution, but that would be contrary to the constitution of enumerated powers.  Instead, from his reading of the powers thus delegated to the general government, and the objective that the government is constituted to be efficient--that is to be able to actually exercise its enumerated powers, then the constitution must permit the general government some latitude in the means used to exercise its enumerated powers. "The power being given, it is the interest of the nation to facilitate its execution.  It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means." (Ibid).  

Thus, while the constitution itself doe snot confer on the general government a direct power to charter a corporation, it might vest the general government with the authority to charter a corporation as a means for exercising some other of its enumerated powers--as long as the constitution itself does not otherwise restrict the means the general government might invoke to attain its objectives.Thus Marshall argues:

Can we adopt that construction, (unless the words imperiously require it,) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means?  If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation,  if the existence of such a being be essential to the beneficial exercise of those powers.  It is, then, the subject of fair inquiry, how far such means may be employed. (Ibid).

And, indeed, this structural reading of the constitution is supported by a more specific text--the so-called "necessary and proper" clause (the power to make  "all  laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof." U.S. Const.).  Counsel for Maryland argued that the "necessary and proper"clause required a narrow reading, otherwise the means of attaining a constitutional end could overwhelm and swallow up the enumerated right, inverting enumerated power and necessary means.  As a result, only those laws that could be shown to be necessary to the execution of enumerated powers were valid, and such would be tested by reference to more simple, direct and narrow alternatives.

But Marshall rejected this argument.  To arrive at a broader reading of "necessary and proper" in it constitutional context, Marshall engaged in a bit of textual analysis. First, he argues, in context, the word "necessary" might have no fixed meaning--it is inherently ambiguous standing alone. "It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed, by these several phrases." (Ibid).  Marshall compares the use of the word necessary in other parts of the constitution, and from that extracts a more precise contextual meaning--something other than absolutely necessary.  

But to determine what meaning of necessary within the context of the necessary and proper clause Marshall sought guidance from the intention of the drafters of the constitution.  Marshal starts from the premise of structural ambiguity as a bedrock principal of constitutional drafting--that the framers could not have intended to draft a constitution so precisely drawn that it would leave Congress with no flexibility to adapt to circumstances as they arose.  Constitutions are not legal codes and thus to construe constitutions as precisely as statutes would be to undo the core premise of constitutional organization--the creation of a structure that can adapt to changing circumstances.  "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."  (Ibid).  This original intention is then supported by reference to the text of the constitution itself.  Marshall draws by analogy to the power to establish post offices and the penal power of the general government for support.

But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the Convention, as manifested in the whole clause. To waste time and argument in proving that, without it, Congress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun. (Ibid).

This argument is supported by a structural textual analysis--the necessary and proper clause is place within the enumerated powers of congress, rather than among the limitations of that power; the terms appear to enlarge rather than restrict congressional power.  This for Marshall is sufficient proof of the validity of his construction of necessity as a broad and substantially open ended authority in the general government.  

But Marshall is also mindful of the need to limit this open ended construction.  Though in the centuries after this constraint might appear too little to actually limit the functional power of Congress exercised out of "necessity", it was sought sufficient at the time. Marshall suggests limitations that are both formal and functional in character.  The formal restriction is focused on the attempt by Congress to enact legislation through the necessary and proper clause that it would be prohibited under some other provision of the Constitution.  The functional restriction is pretextual in nature, "when Congress under pretext of executing its powers passes laws for the accomplishment of objectives not entrusted to government." (Ibid).  Otherwise the Courts will defer to Congress:

 But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power. (Ibid).

That leaves the second question--thew power of Maryland to tax an instrumentality of the general government operating in its territory. Again, Marshall starts with the Supremacy clause.  A power to tax instrumentalities of the general government would appear incompatible to the power of the general government to operate supreme within the scope of its jurisdiction.  The power to tax the bank suggests the power to tax all of the operations of the federal government.  That suggests that states could tax the general government to death if states so chose.-  This theory would ,make sense under a conception of power advanced by Maryland--that the general government is subordinate to the states.  But Marshall has rejected that position.  And thus the importance of the Supremacy Clause to his analysis and a reliance on the original intention of constitutional formation.. "This was not intended by the American people. They did not design to make their government dependent on the States." (Ibid).

It is for that reason that Marshall also rejects the principle of mutuality of action between state and general government.  He suggests that the structure of the general government itself makes it illogical to suggest that any one state may affect national policy but quite logical for the general government to affect any one or a number of states.

The people of all the States have created the general government, and have conferred upon it the general power of taxation. The people of all the States, and the States themselves, are represented in Congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the States, they tax their constituents; and these taxes must be uniform. But, when a State taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole -- between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme.

Because all states are represented in the general government, the community of states may act on all of them in ways that permit each to protect their individual interests.  But the same is not true when a state seeks to affect the general government.  There the representation of the general government is held hostage to the interests of only one state.  That undermines the fundamental representative principle of the organization of the Republic. As such the state of Maryland on an instrumentality of the general government is beyond its power as a subordinate unit of government.

McColloch suggests that constitutional construction is both similar to but may be distinguished from the ordinary methods of statutory construction.  Like statutory construction, the focus remains on text and intent.  The Court will seek to read the text and discern meaning from the word, clause or from the entire document.  The Court can seek to extract principles from the text and apply them to resolve the ambiguity or fill a gap.  Again, as ion statutory construction, the Court will seek the intent of the drafters and situate meaning within the common understanding of the time of enactment.  The object is functional--to ensure that the objectives of the document as a whole are not thwarted by a reading of the text of the specific provision at issue.

Yet there are differences.  Marshall is at some pains to suggest that a constitution ought not to be read like a statute. American constitutional drafting cultivates ambiguity; statutes cultivate precise meaning.  Constitutions have as their foundational objective, the preservation of the state and the welfare of the people over a long term; the objectives of statutes are more precise. Constitutions are meant to be inherently ambiguous, precisely because it is meant to provide a flexible framework for the long term operation of the state through its governmental instrumentalities.  Plain meaning, then, may have less of a place within constitutional construction than in statutory construction. Likewise, core principles of government--anti-tyranny principles, federalism principles, and efficient government principles operate in constitutional construction in ways that may be irrelevant for statutory construction.  There is room for acquiescence in constitutional construction; it is a political document as well as a source of higher law.    Thus, perhaps, the differences may focus on nuance and the context of construction, rather than on the development of a palette of techniques that distinguish statutory from constitutional construction.

These notions have been tested by a century of more of constitutional theorizing at the hands of generations of American academics and judges who have sought to leave their own mark on an ideology of constitutional construction.  These theorizing trends have left their ,ark on American law and politics; it has shaped the culture of legal discourse.  But it is not clear that it has added much to the business of constructing and implementing constitutional norms.  The readings listed above suggest some of the more long lasting movements that have marked these theorizing "schools" whose language has sometimes entered the common culture and the political discourse.  We will consider these in our next class.