A New Look at The Constitution
FELLMAN, DAVID
A New Look at The Constitution Politics and the Constitution in the History of the United States, by William Winslow Cross-key. University of Chicago Press. Two volumes. 1,410 pp. ...
...The plain fact is that Congress doesn't want to pass any such law...
...All distinctions subsequently drawn by the Supreme Court between interstate and intrastate commerce are mistaken...
...In fact, his book is dedicated "To the Congress of the United States in the hope that it may be led to claim and exercise for the common good of the country the powers justly belonging to it under the Constitution...
...This is a happy description, for not only does the lawyer's brief usually lack literary grace, but it does not even pretend to tell the other side of an argument...
...Thus, Chief Justice Roger Brooke Taney was a "great arch-sophist," and Justice Samuel Freeman Miller was "one of the great destructive geniuses of the Court...
...And when the American people are convinced that it no longer serves useful purposes, I suppose they will know what to do with it...
...Such comments are liberally sprinkled throughout the two books...
...This treatise is one which no serious student of the Constitution, whether scholar, lawyer, judge or interested layman, will ever be able to ignore...
...On the other hand, he hates the Jeffersonians with some sort of relentless zeal, and Madison and Jefferson are the particular villains...
...In other words, the Constitution, according to long-established legal theory, creates a federal and not a unitary system...
...20...
...Jefferson's colleagues are "henchmen," and their tactics were "mendacious...
...Nothing in Crosskey's book suggests the possibility that there might be substance to a view opposed to his own, for clearly he has seen the light and is burning to save us from further sin...
...I believe that the central deficiency of this attack upon conventional constitutional law is the lack of a tenable theory about constitutions...
...Other powers, such as the power to declare war, were listed to make sure that the executive would not exercise them, as it did in England...
...This distribution of powers is confirmed by the Tenth Amendment, adopted soon after the Constitution went into effect, in which it is stipulated that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people...
...Thus the key to the bankruptcy power, he maintains, is the word "uniform," which was to be a special limitation on an otherwise general legislative power...
...If this is done, it is clear, he argues, that Congress was intended to have a general legislative power, unimpaired by any notion of "states' rights," and that the Supreme Court was intended to be "the head of a unified American system of administering justice...
...On the contrary, it quickly passed a statute confirming the validity of the existing state insurance codes...
...Nor is there the slightest suggestion in this book that something might possibly be said in favor of the federal idea...
...He thinks the central feature of the Constitution was simple legislative supremacy...
...The regulation of insurance is a case in point...
...For example, the reason why it is said that Congress shall have the power to pass "uniform laws on the subject of bankruptcies throughout the United States" was to make sure that such laws would be "uniform...
...Crosskey seems to be quite aware of the revolutionary character of his analysis...
...Furthermore, Crosskey believes that the Constitution did not endow the Supreme Court with the authority to declare an act of Congress unconstitutional, except in defense of its own "judiciary prerogatives...
...This is an ingenious and wholly novel interpretation of a fundamental constitutional question, but the argument is not equally convincing as to all the clauses, and for several it is quite weak...
...After reading the first introductory chapter, in which the thesis is announced, I thought the author must be some sort of crank with a special talent for writing long and awkward sentences...
...This opus is not easy reading...
...among" means "within," and the "states" means "the people of the states...
...The book is unnecessarily long-winded, the style of writing cumbersome...
...He admires the early Federalists enormously, even going so far as to defend their infamous Sedition Act...
...A third group of listed powers are explained as being intended to impose special limitations on Congress...
...The treatment of the federal doctrine as some sort of wicked constitutional heresy is neither a fair nor an adequate key to an understanding of the subject...
...CROSSKEY, who teaches at the Law School of the University of Chicago, does not approve of our federal system of government...
...Crosskey prefers the unitary to the federal plan of government...
...The reason why we have no national statute on corporations is not due to any misreading of the Constitution...
...Quite a few of the listed powers are explained in this fashion, the point being that the enumeration was aimed at the executive department, not the states...
...But he has no doubt of the fact that the Supreme Court was to be the "nation's juridical head," with general power to review all types of state law, including the common law, which he insists was not state law to begin with, but part of "the laws of the United States" brought within the scope of the national judicial power by Article III of the Constitution...
...As interstate commerce is now defined by the Court, Congress could pass a statute which would reach at least 9Q.per cent of the business activity of the nation...
...A constitution is a living and not a static document, and it invariably embodies the prevailing political theory of the age...
...To me this thesis is inherently improbable...
...He maintains that the Constitution should be read in the light of 18th Century canons of construction, and that its words should be given the meanings attached to them by the Founding Fathers...
...What is extraordinary about Crosskey's immense opus is the thesis that the framers of the Constitution intended to create a unitary, and not a federal, system...
...In short, this is not an objective analysis of federalism, but a one-sided argument...
...We are informed that "most . . . Jeffersonian outgivings to the people" were "totally false and misleading...
...he develops it with great gusto, perhaps too much gusto...
...Harsh epithets are used to describe those with whom he does not agree...
...It has always been a response to basic factors in the American environment...
...I find it hard to believe that it is the result of Supreme Court decisions, or the machinations of James Madison...
...Even if its central thesis, as I believe, is not yet proved—additional volumes are promised— Crosskey brings to the study of the Constitution an almost incredible amount of historical learning, and opens up new vistas of research and thought which ought to keep scholars busy for at least a generation...
...But having read through these two immense volumes, I feel that no book about the Constitution comparable to this one in importance has appeared since Charles Beard published his epochal study of the economic foundations of the Constitution in 1913...
...This is, of course, his privilege, and quite a few people who think about such matters share his position...
...It certainly did not...
...The meaning of the phrases "commerce . . . among the several states" is spelled out in great detail: "commerce" means all types of "gainful activity...
...It is not the result of the lawyer's cunning...
...Reviewed by David Fellman PROF...
...II Much of the first volume is devoted to an exhaustive analysis of the commerce power of Congress...
...As one distinguished scholar has suggested, it reads like a lawyer's brief...
...In the conventional language of American constitutional law, the national government has certain delegated powers, enumerated in the Constitution, and except where specifically limited, the states have'all the other powers, the reserved powers...
...Crosskey holds that the Commerce Clause, if read with the 18th Century meaning of words in mind, was designed to endow Congress with authority to regulate all manner of economic activity among the American people, without any regard to state lines...
...Apparently Crosskey's main objection to our federalism is the lack of uniformity of American law, particularly in the commercial field...
...It is studded with such words as "difficilitate," "dis-uniformity," and "negatory...
...When the Supreme Court finally held, a few years ago, that insurance was commerce, and interstate insurance was interstate commerce, did Congress rush in with a full-blown insurance code of its own...
...In other words, his central thesis is that the Constitution was intended to endow Congress with a general legislative power, and not merely a limited number of enumerated powers, and that the present federal pattern is the result of a perversion of this intention through a protracted misconstruction of the Constitution, especially by the Supreme Court Justices...
...It has deep roots in American life...
...Apparently the Federalists were originally pure, but became mendacious themselves only when goaded to mendacity by the wicked proponents of states' rights...
...In a unitary system, such as Great Britain's, the central legislature has a general lawmaking power, which is unhampered by any locally-exercised powers guaranteed by a constitution...
...Crosskey has not yet convinced me to abandon a life-time view of the Constitution, but he has raised enough doubts to keep me in a sorely perplexed state of mind for a good many years...
...Now, in the light of the present Court's interpretation of the scope of national legislative power under the Commerce Clause, there is really no constitutional barrier in the way of such a statute...
...It is full of highly technical discussions which laymen will find hard to follow...
...He asserts several times that we ought to have a uniform national corporations act...
...The tremendous developments of recent years in the area of cooperative federalism between the nation and the states are not even mentioned...
...Since most of the powers of Congress are enumerated in Article I, Section 8, of the Constitution, one of Crosskey's main efforts is to show that the listed powers were not the only powers of Congress, and that they were mentioned separately for special reasons unrelated to the federalistic principle...
...I suppose the American people have a federal system because that is what they want...
...The Framers, he argues, had in mind the non-uniform or special laws on this subject which state legislatures had previously enacted, and of which they thoroughly disapproved...
...He says that some powers were so mentioned merely because, since they had been stated in the preceding Articles of Confederation, their omission might have led to difficulties of construction...
...In short, I believe that American federalism is no hot-house flower...
...By the federal system I mean the division of powers, by the Constitution itself, between the states and the national government...
Vol. 17 • October 1953 • No. 10
