THE STATEMENT AT ISSUE:

“The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency. … The fourth branch now has a larger practical impact on the lives of citizens than all other branches combined.”

– Jonathan Turley, George Washington University law professor, in an article in The Washington Post on May 26, titled “The rise of the fourth branch of government.”

WE CHECKED THE CONSTITUTION, AND…

Americans have been fretting over the growth of the national government since at least the presidency of Abraham Lincoln, during the Civil War. And the fretting has been at the level of deep anxiety since the New Deal–era expansion under President Franklin D. Roosevelt. In the present day, the rise of an entirely new and sometimes powerful political movement—the tea party—can be traced directly to this continuing concern.

But to suggest that it has gotten out of control, that it has outgrown the functioning of a system of constitutional checks and balances, is to misunderstand the way that system works in the era of really big government. Not one of the three constitutionally defined branches in Washington is noticeably weaker than it was at some point in the past. And not one of them is bashful about monitoring, and at times frustrating, the “fourth branch”—the Cabinet departments and the regulatory agencies.

Having government power, and all of the official institutions in Washington have that, does not necessarily mean that its use will never have to be justified, or that its use will never be checked or even overwhelmed.

A few questions that are being asked and answered today illustrate the point:

How soon, after revelation of the Internal Revenue Service’s aggressive review of tea party organizations’ tax-exemption pleas, did investigations arise—in Congress, at the Justice Department, and at the IRS itself?

How confident can President Obama and his Cabinet be about putting into place all parts of the new federal health care law, when more than a handful of states are refusing to go along with key facets of it?

How much unchecked power does the president have to carry on his policy of “targeted killing” as part of the war against terrorism, when Congress, outside interest groups, and even the federal courts are asking probing questions about its extent and its justification?

How free is the president to make temporary appointments to federal agencies, as a way to get around Senate filibusters of some of his nominees, when the very power of appointment is sharply restricted by a federal court and is now being tested in the Supreme Court?

How content can a regulatory agency like the Environmental Protection Agency be that a massive program of regulating global warming will be allowed to go into effect without being challenged in a federal court?

How long will it be before the State Department’s handling of the terrorist attack on our diplomatic mission in Benghazi is no longer the subject of congressional inquiry?

The answers to some of these questions, of course, are that America’s polarized political system generates at least skepticism and sometimes even hostility to this or that government program or event. But that is not the complete answer.

If there is one common denominator in each of these questions, it is that a check or balance, theoretically available within the structure of government, gets energized in the practical world by some lawyer or some advocacy group. If America now operates in the shadow of a huge administrative state, that is matched by a nearly-as-large lobbying and advocacy community.

The civic gladiators who now make the system of checks and balances actually work are energetic; they have money and talent; and they have every incentive to keep an eye on what the national government does. And it may sometimes be forgotten, they have a constitutional right to do just that: the First Amendment guarantees them a “right to petition the government for a redress of grievances.”

And it is a simple fact of life that virtually everything the national government does, in virtually every field, is likely to be perceived in some quarter as a “grievance” that needs fixing—or, at least, needs to be challenged.

Professor Turley’s complaint about a “fourth branch of government” that governs “with increasing autonomy and decreasing transparency” is in a real sense a fanciful notion. It might be real, if there were no lawyers and no lobbyists and no advocacy organizations, and no media to pay attention to all of those who have gripes or agendas.

Concentrations of official power may, indeed, be a threat to a free society, but when there are private concentrations of civic power—dueling “factions,” in James Madison’s words—the threat probably is being kept pretty well under control. The Founders, perhaps, had more faith than some of their contemporary descendants do that the idea of checks and balances does work to forestall tyranny.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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The statements at issue:

“Although I fully support PSU receiving the severest possible sanctions, I wonder whether the Clery Act is constitutional. What possible source of authority is there for the Congress to mandate the reporting of sexual abuse claims at universities? The Commerce Clause? I think not. And after the Obamacare case, Congress’s spending power has been severely curtailed. (And that appears to be the only root authority for the Clery Act—you want federal dollars, then you better comply.)”

– A comment filed on The Wall Street Journal’s Law Blog by a reader identified only as “Bill,” on July 12, reacting to the “Freeh Report” on the Penn State scandal. Any sanctions against the university under the Clery Act by the federal Department of Education following its investigation would be separate from those imposed by the NCAA on the football program this week.

We checked the Constitution, and…

The Clery Act has gained wide public support, and an increasing amount of support from colleges and universities, since its initial passage in 1991. While a university faced with the potentially heavy fines that can be imposed for violating the act might be reluctant, for public relations purposes, to pursue a constitutional challenge, such a legal protest may not be an entirely fruitless effort.

The reader “Bill,” in his comment to the Law Blog, accurately pinpointed the two possible constitutional foundations of the Clery Act: the Commerce Clause or the Spending Clause. Congress may have thought, in passing that law, that it was reaching a kind of activity—higher education—that does have a considerable impact on commerce among the states. Or it may have believed that, since it was imposing campus crime reporting duties on colleges as a condition for their receipt of federal funds, it was using its power over federal spending. The lawmakers don’t always say what powers they are employing when they pass a given law.

Campus crimes are, of course, matters of primary concern to state and local government, under their broad “police powers” that are protected under the 10th Amendment. Although Congress for decades has been expanding the federal role in criminal law enforcement, there are constitutional limits on its authority to do so, and the Supreme Court recently has been doing a good deal more to enforce those limitations.

It has been clear for more than a generation that the Supreme Court has been quite skeptical about Congress’ power to reach deeper into local activity, including local crime. In the 1995 decision in U.S. v. Lopez, it ruled that Congress could not regulate the carrying of guns near schools. In the 2000 decision in U.S. v. Morrison, it ruled that Congress had gone too far in the Violence Against Women Act in regulating domestic violence, a local crime.

Both of those laws had been based explicitly upon Congress’s power over interstate commerce. But the court concluded that it was a stretch to treat the carrying of guns and acts of domestic violence as commercial activity or as interstate in impact.

The court’s decision in the health care case this June went further than the court has gone in decades to restrict Commerce Clause legislation that does not involve actual voluntary activity in the stream of commerce. That decision, as reader “Bill” said, might raise new problems for the Clery Act.

The health care decision also embraced—for the first time in history—the constitutional argument that Congress may act unconstitutionally in the use of its spending power if it imposes too heavy a burden on states as the price of receiving federal funds. States, the court said, cannot be coerced into a program, and must be given the choice of opting out rather than satisfying such conditions.

There is another potential constitutional argument that universities might think about advancing should one or more of them take on the Clery Act in court. That is the argument that running a campus, and controlling student life, is protected by concepts of academic freedom under the First Amendment. That might not be a very strong argument against law enforcement by local police, but it might have more to it as a challenge to federal management of campus life.

Examining the possible constitutional vulnerability of the Clery Act, though, may not have much to do with the real world of campus life in the wake of the Penn State scandal. Governing boards and academic leaders of universities may well find—in the current atmosphere—that it would be very politically risky to try to fend off a law as popular as this legislation is.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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A poster, with a nod to Obama's "Hope" campaign. Illustration by Nick Bygon

In a series of rapid developments, a panel of judges appointed by former leader Hosni Mubarak dissolved parliament as Mubarak’s last prime minister, Ahmed Shafik, is running for president.

There will still be a presidential election this weekend between Shafik and Mohamed Morsi of the Muslim Brotherhood, but the military will act as the parliament after the runoff election concludes.

And there will be no constitution to constrain the president.

Reaction to the news in the region has been negative, with many viewing the ruling as a military coup to keep the Muslim Brotherhood from making gains.

“Electing a president without either a constitution or a parliament is like electing an ‘emperor’ with more power than the deposed dictator. A travesty,” Mohamed ElBaradei, a former presidential candidate, said in a comment online reported by the New York Times.

ElBaradei told The Guardian that the Muslim Brotherhood was also at fault for trying to grab “the whole cake” after Mubarak’s downfall and giving the military an excuse to end the nation’s experiment with democracy.

“We are going to elect a president in the next couple of days without a constitution and without a parliament. He will be a new emperor, holding both legislative and executive authority and with the right to enact laws and even amend the constitution as he sees fit,” ElBaradei said.

ElBaradei expects Shafik, the former prime minister and Air Force general, to win the election and assume dictatorial powers in Egypt.

Egypt’s military council is expected to appoint a panel to draft a new constitution. The Muslim Brotherhood was dominating the process of naming a constitutional panel when parliament was dissolved on Thursday.

(Author’s note: While doing research for my book on the House of Representatives, “Do Not Ask What Good We Do: Inside the U.S. House of Representatives,” I became more interested in one of its great early members, Fisher Ames, than space in the book would allow. Following are two sections on Ames that might make one wistful for a bygone era when division did not guarantee dysfunction.)

Click here for more information on “Do Not Ask What Good We Do: Inside the U.S. House of Representatives.”

Fisher Ames arrived in New York City by stagecoach on February 28, 1789, four days ahead of schedule. He disembarked with his belongings at a boarding house on 15 Great Dock Street, a short walk from where he and his colleagues in the 1^st Federal Congress would soon be convening.

Ames was, as of this moment, a resident of his young nation’s capital. Hardly did it resemble the “city upon a hill” envisioned by John Winthrop a century and a half before. The British army had deserted New York less than six years ago. The great fires of 1776 and 1778 had left whole neighborhoods in ruins. Pigs foraged along the reeking streets. Still, the population had climbed to 24,000. Tavern lights haloed the port. A wholesale renovation of the capital’s streets and docks was underway. This was America in its infancy—bloodied, impoverished, recklessly exuberant and in dire need of the coherency men like Fisher Ames were counted on to bring to it.

Ames was 30 years old. He had grown up in the inert country town of Dedham, Mass., nine miles south of Boston, descended from a long line of doctors and farmers. A bachelor (though with designs on a Springfield girl he would eventually wed), above average in height, with eyes that one contemporary would describe as “expressive of benignity and intelligence,” the young statesman possessed ambition “of that purified sort, which is rather the desire of excellence than the reputation of it.”

At the age of six he had begun to study Latin. At age 12, he was admitted to Harvard. The early deaths of his father and two of his brothers, combined with the torments of an abusive stepfather, had imbued in Fisher Ames an acute state of melancholy without for a second slowing him down. In short order the young man became a military volunteer against the British, then a Dedham town delegate, then a lawyer, then a columnist pleading for the immediate formation of a sturdy republic.

In January of 1788, the villagers of Dedham dispatched Ames to Boston to debate the newly drafted federal Constitution.  “If we adopt it,” the delegate told the divided assembly in his concluding speech, “we shall demonstrate to the sneering world,  who deride liberty because they have lost it, that the principles of our government are as free as the spirit of the people.” The Massachusetts Convention voted to ratify the Constitution, 187 to 168.

Ames pulls off early election upset

One year later on January 7, 1789, Ames pulled off an astonishing upset in the race to become one of Massachusetts’ members of the 1^st Federal Congress, beating out the venerable Samuel Adams by a grand total of 11 votes. By the end of this year, the Dedham physician’s son would be widely regarded as the nation’s greatest orator.

Ames was a Federalist. While he detested monarchy, he also maintained that “a democracy is a volcano, which conceals the fiery materials of its own destruction…The people always mean right, and if time is allowed for reflection and information, they will do right. I would not have the first wish, the momentary impulse of the publick mind, become law.” For this reason, the Massachusetts delegate at the Constitutional Convention had pressed for biennial rather than annual elections to the House: “Will any man say that the national business can be understood in one year?”

Patriotism, Ames observed, was not “a narrow affection for the spot where a man was born,” but instead sprang from “the laws of society, because they are the laws of virtue. In their authority we see, not the array of force and terror, but the venerable image of our country’s honor.” The question soon before the 60 newly elected representatives would be how to codify that honor. At this early juncture, the United States possessed little to bond them, apart from hatred of tyranny. “Our liberties cannot be preserved without union,” Ames warned. In this state of urgency he waited for Congress to convene.

The appointed day was March 4. Bells rang and cannons fired that morning to commemorate the moment. But only Ames and 12 of his colleagues had made it to New York, insufficient for a quorum. Anxious bulletins were sent out to the derelict, more than once. Alas, travel by water or by land was equally fraught with mishap in that era. Days became weeks. Ames was quietly going crazy waiting. “This is a very mortifying situation,” he wrote, adding, “The public will forget the government before it is born.”

Finally, on Wednesday, April 1, the western Pennsylvanian Thomas Scott arrived in town and a quorum of thirty was thereby constituted. They gathered in the former city hall, just recently re-imagined as the new seat of the American empire by the skilled architect Major Pierre-Charles L’Enfant at a cost of $65,000 by several wealthy New Yorkers, and renamed Federal Hall. The first Speaker, Frederick Muhlenberg of Pennsylvania, rapped the gavel. Upstairs, the Senate had yet to convene. Upon reaching a quorum on April 5, the Senate kept its doors closed to the public, and continued to do so for the next six years. On April 9, the “lower body” decided on the opposite approach: Muhlenberg ordered that the doors be thrown open. The citizens and journalists of New York filed in and proceeded to the upper gallery, where they munched noisily on peanuts while observing America’s foray into republican democracy.

First weeks of first Congress

Sitting at his desk in Federal Hall during those first weeks, Fisher Ames scribbled his ongoing observations with such proficiency that his colleagues soon nicknamed him the Secretary of State. Of the members, he wrote, “There are few shining geniuses…Many who expected a Roman senate, when the doors shall be opened, will be disappointed.” One colleague he described as “superficial, arrogant and rapacious”; another he more generously appraised as “plausible, though not over civil.” The esteemed Virginian, James Madison, Ames found to be “very much Frenchified in his politics” and “too timid”—yet intellectually formidable: “He is our first man.” In all, Ames allowed, they were “sober, solid, old-charter folks.” Only two of the sixty-five original members (including the five representatives from North Carolina, which joined the Union in 1790) were new to public service.

The newly elected president, General George Washington, arrived in New York by boat on the 23^rd, and a week later he was inaugurated before Congress. Young Ames had been one of the seven men appointed to oversee the great man’s reception. The freshman sat in the Senate chamber during that first inaugural address, unable to contain his awe. “Time has made havoc upon his face,” he would recall of Washington. “His aspect grave, almost to sadness; his modesty, actually shaking; his voice deep, a little tremulous, and so low as to call for close attention; added to the series of objects presented to the mind, and overwhelming it, produced emotions of the most affecting kind upon the members. I…sat entranced.”

The House’s first major legislative business that spring was the fulfillment of its primary Constitutional authority: the power of the purse. In this case, the lower body considered how to finance its war debt with impost taxes. Madison urged an eight-cent per gallon tax on molasses. In his maiden speech on the House floor, Fisher Ames argued that such a duty would cripple his state’s economy, because the Massachusetts fishermen swapped their catch on the open seas with producers of molasses, which was then transported back home to rum distilleries. Ames proposed a more limited tax and by a roll call vote trounced Madison, 41 to 8. “I think Mr. Madison was chagrined,” Ames wrote.

The freshman’s star was rising. “Ames makes a very pretty figure, let me congratulate you on his fame,” Vice President John Adams wrote a Massachusetts friend that year. Another observer found his speeches to possess “the most elegant language of any man in the House.” Ames confessed to a friend that his mind was “crazed with the chase” of politics—that it was hard to imagine returning “to the humble drudgery of earning bread.” Still he worried. His colleagues were endlessly jousting over minutiae: “We correct spelling, or erase `may’ and insert `shall,’ and Quidde in a manner which provokes me.” He feared that they were losing sight of the big picture. In particular, he found fault with the “southern nabobs” who “would not make the law, but the people, king.” He termed them “violent republicans.” To a friend he wrote, “I am commonly opposed to those who modestly assume the rank of champions of liberty, and make a very patriotic noise about the people. It is the stale artifice which has duped the world a thousand times, and yet, though detected, it is still successful. I love liberty as well as anybody…But I would guard it by making the laws strong enough to protect it.”

Laying the foundation of government

That spring and summer, the House would lay the foundations for a federal government. After first standing up an Executive Branch, they established a Treasury department and a federal bank. They instituted a federal judiciary—despite attempts by the South Carolinians to confer nearly all power on state courts, prompting Ames to argue, “A government that may make but cannot enforce laws, cannot last long, nor do good.”

On May 4, Madison introduced his much-anticipated Amendments to the Constitution. Ames was initially scornful, believing them to “stimulate the stomach as little as hasty-pudding”—a sop to Patrick Henry and other anti-Federalists, and ultimately a ploy to gain Madison “some popularity, which he wishes.” He hated to see Congress’s important work bog down in a protracted, acutely public rehashing of the already-ratified Constitution. In the nation’s frail state, Ames yearned to see allegiance to the republic rather than obsessing over individual rights: “I wish to have every American think the union so indissoluble and integral, that the corn would not grow, nor the pot boil, if it should be broken.”

Still, Ames was a realist. The hot-button issue of last year’s elections had been the public’s desire to codify individual liberties lest the federal government slowly assume a state of monarchy. He decided to engage constructively, so that the end product would “not be trash.” On August 15, 1789, New Hampshire representative Samuel Livermore clarified Madison’s then-Third Amendment to read, “Congress shall make no laws touching religion, or infringing the rights of conscience.” Ames mulled over the language. He was a New Englander; the clergy’s role in public life there was centuries old. The Virginians, with a less entrenched religiosity, had been conspicuously muted on the topic.

On August 20, Ames proposed a more focused revision to the Amendment: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”

His language passed, was eventually ratified by the States and, after other provisions failed to do so, became the First Amendment to the United States Constitution.

Far from a Roman senate

On a Friday afternoon in midsummer 1789 Fisher Ames and nine of his fellow House members took momentary leave of their work. According to a newspaper, they “set out on a party of pleasure to take a view of West Point and the Hudson River, on board of Captain North…” They spent the night in West Point. On Saturday morning the 10 congressmen went for a march up to Fort Putnam, then set sail for Poughkeepsie, where they dined and spent their Sunday. The headwinds back to the capital city were rough; they arrived back in time for session on Monday morning, albeit with spinning heads, wrote one passenger: “my head is so deranged that the room, tables & chairs seem in motion.”

Even holiday was rigor. Still, there they had been, 10 congressmen from North and South, patrician and not, all in the same vessel. Fisher Ames, prone to despairing, was beginning to see some promise in the lower body, where he would ultimately spend four terms. “There is no intrigue, no caucusing, little of clanning together, little asperity in debate, or personal bitterness out of the House,” he wrote a friend after the outing.

“And yet,” he could not resist adding, “it is very far from being a Roman Senate.”

The legacy of Fisher Ames

Fisher Ames died of an unknown infirmity at the age of 50 on the 4^th of July, 1808, 32 years to the day after his beloved nation had declared its independence from England.

He had served four terms in the House, retiring at the age of 38. Along the way, the eloquent politician with an artist’s despairing core shaped an infant country in ways that must have seemed trivial at the time. It was Ames who provided the final language to the First Amendment. It was also Ames whose fear of an unwieldy and factionalized House compelled him to press hard for a larger proportion of representation and thus fewer members—which displayed prescience in a losing cause. It was Ames as well who helped beat back an attempt by Southern members to change the presidential line of succession from House Speaker to Secretary of State (at the time occupied by Southerner Thomas Jefferson). And it was apparently Fisher Ames who, in 1790, invited ladies to sit in the House gallery for the first time.

It was indubitably Fisher Ames whose April 28, 1796 floor speech moved his colleagues to sign the Jay Treaty with Great Britain and thus avert war—employing oratory that would gain worldwide attention: “What is patriotism? Is it a narrow affection for the spot where a man was born? Are the very clods where we tread entitled to this ardent preference because they are greener? No, sir…It is an extended self-love, mingling with all the enjoyments of life, and twisting itself with the minutest filaments of the heart. It is thus we obey the laws of society, because they are the laws of virtue. In their authority we see not the array of force and terror, but the venerable image of our country’s honor.”

But as another Massachusetts congressman, Tip O’Neill, would say two centuries later, “All politics is local.” Fisher Ames’ wariness of democracy’s “volcano” earned him ridicule as an elitist back home. He won a second term with nearly 74% of the vote. During his third race in 1794, however, Ames was accused of voting “to enlarge British imports which would increase the value of his stocks.” Noting Ames’ far closer 57-43 victory that year, Madison gossiped to Jefferson that “Ames is said to owe his success to the votes of Negroes and British sailors smuggled under a very lax mode of conducting the election there.”

Ames seemed untroubled by such less than glowing portrayals and by the fact that a few individuals in Charleston had reacted to his diatribes against the French by burning him in effigy. Still, the ceaseless battles between Federalists and the emerging Republicans had begun to weary him. “I attend Congress daily,” he wrote a friend at the conclusion of his penultimate term, “but crack jokes instead of problems, and think as little of the proceedings as the doorkeeper.” As the session ended, he wrote mordantly, “If we should finish and leave the world right side up, it will be happy. Do not ask what good we do: that is not a fair question, in these days of faction.”

And yet when he did leave the building—quietly departing the day before President Washington’s farewell to Congress on March 3, 1797—Fisher Ames did not do so as a disinterested party. For even as the Federalist aims of a robust and unifying central government came to be battered by the paleo-constructionist Nathaniel Macon and other Southerners, even as his electric yet still mannered speechifying gave way to the pugilistic banter of Macon’s protégé John Randolph of Roanoke (“Let John Randolph…have the amusement of the cockpit,” he wrote), and even as the House’s rusticity descended into mayhem when a Vermont freshman named Matthew Lyon spat on another member and was thereupon clubbed, he maintained an exasperated sort of affection for the body he helped create. In the fall of 1803, the retired House member wrote words of encouragement to an incoming freshman, his brother-in-law Thomas Dwight: “I am glad to hear of your safe, though weary, arrival at the heaven of other men’s ambition, your purgatory, where indeed you will see good spirits, with other spirits conjured by democracy from the vasty deep. Remember what I have often told you, that the scene you are entering upon will form the best characters, and display them to the greatest advantage. The furnace of political adversity will separate the dross, but purify the gold…To serve the people successfully, will be out of your power; the attempt to do it will be unpopular. To flatter, inflame and betray them, will be the applauded work of demagogues, who will dig graves for themselves, and erect thrones for their victors…”

A Federalist icon

A number of Ames’ colleagues from the 1st Federal Congress went on to higher office: nine became U.S. senators, one became treasury secretary (Thomas Tucker), another vice president (Elbridge Gerry) and still another president (James Madison). Ames never did—and indeed turned down an offer to be president of Harvard University. Perhaps to the detriment of lasting fame, he would be identified forever with the lower body, and with the Federalist cause that would soon give way to Jeffersonian democracy.

Ames did not seem to suffer for attention, however. On the occasion of George Washington’s death in 1800, the great orator was requested to say a few words before the Massachusetts state legislature, and once again he did not disappoint:

“Of those, however, who were born, and who acted, through life, as if they were born, not for themselves, but for their country and the whole human race, how few, alas! are recorded in the long annals of ages…Washington is now added to that small number. Already he attracts curiosity, like a newly discovered star, whose benignant light will travel on to the worlds and time’s farthest bounds. Already his name is hung up by history as conspicuously, as if it sparkled in one of the constellations of the sky…Our history is but a transcript of his claims on our gratitude.”

Despite the wishes of his wife and children, the funeral arrangements were subsumed into politics, as Federalists wished to make the moment a rallying point for their cause. Upwards of a thousand mourners—congressmen, senators, judges, mayors and common members in good standing of the “mobocracy”—gathered in the streets of Boston as the procession snaked its way towards Kings Chapel. Flags flew at half-mast. Shopkeepers locked their doors. A great tongue had been stilled—though within months of his passing, friends would hasten to publish his speeches and letters, which critics then set upon like vultures.

One of the latter was John Quincy Adams. “Mr. Ames was a man of genius and of virtue, he meant well to his country, and served her with fidelity according to his best judgment,” Adams allowed in a scathing critique of Ames’ works less than a year after the latter’s death. “But at a very early period of his public life, he connected himself with Hamilton, with his bank and his funding system, in a manner which warped his judgment and trammeled the freedom of his mind for the remainder of his days.” Ames’ later years, Adams asserted, were marked by physical disease that exacerbated “the vivacity of his imagination.” In short, the Federalist was reduced, by the eventual sixth President of the United States, first to dupe, then to madman.

Ames was neither. Instead, to paraphrase Robert Frost, the congressman maintained a lover’s quarrel with America, believing his country great and at the same time imperiled by its audaciousness—and he thereby came to be haunted by his own experience on the very tightrope between self-government and anarchy that the People’s House would navigate daily. He was wrong to predict imminent chaos—but no less wrong than the Nathaniel Macons who feared that any chink in the armor of states’ rights would spell America’s inexorable decline. On both sides, in any event, the cause was the same, and it would prove their ultimate rightness.

“We now set out with our experimental project, exactly where Rome failed with hers. We now begin, where she ended.”

Those words, written in a swell of anguish over the seemingly unstoppable momentum of Jeffersonian democracy, were penned by Fisher Ames in 1804, fully seven years after his retirement from the House of Representatives, and fifteen years after the thirty-year old proto-freshman first arrived in New York City to begin the American experiment. How exhilarating, how absolutely terrifying, so as to seem like only yesterday, the fateful reach for the mortal heavens: We now begin…not knowing what had truly begun, much less how it would end.

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: state authority to exclude people who have no legal right to be in the U.S.

The statement at issue:

“The state has no power to close its borders to people who have no right to be there?…Arizona is not trying to kick out anybody that the Federal Government has not already said do not belong here…The Constitution recognizes that there is such a thing as state borders and states can police their borders…What does sovereignty mean if it does not include the ability to defend your borders?”

–Justice Antonin Scalia, in questions and comments during the Supreme Court’s hearing April 25 on the constitutionality of Arizona’s law, S.B. 1070, on the regulation of undocumented immigrants living in the state.

We checked the Constitution, and…

It may be that, when the Supreme Court rules on state power to monitor and restrict the activities of people who have entered the U.S. illegally and remain without permission, the Justices will give states additional authority. But it seems doubtful that they will find in the Constitution a grant of state power to “police their borders” in the way that Justice Scalia seemed to assume that they could.

One of the Court’s prior rulings that several of the other Justices indicated will have an impact on their ruling on S.B. 1070 is the 1941 decision in Hines v. Davidowitz. In that decision, the Court said: “That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization, and deportation, is made clear by the Constitution, was pointed out by the authors of The Federalist in 1787, and has since been given continuous recognition by this Court.” There were dissenters in that case, but not on that basic point.

Even if one accepts that federal “supremacy” in this field is not exclusive, and that there is some residual authority left to the states, it would not be found in the one part of the Constitution that Justice Scalia specifically cited as the basis for his comment about policing borders.

That is the clause in Article I that forbids any state–without Congress’s consent–to impose fees for imports or exports. There is a limiting phrase, though, and that is what Justice Scalia cited. The phrase says that states may impose a fee if that is “absolutely necessary” to carry out their “inspection laws.” That proviso, the Justice commented, allows a state to “inspect incoming shipments to exclude diseased materials.”

The phrase, however, does not seem to apply to human beings who have entered a state, even those who have entered illegally. Arizona has not claimed authority to exclude them under its inspection laws.

It may be that Justice Scalia was talking only about parallel authority to “kick out” someone whom Congress has already determined to be here illegally, merely by the fact of their entry without permission. But there is no Supreme Court interpretation that makes deportation a shared duty of national and state governments. Those who wrote S.B. 1070 have said it encourages “self-deportation,” but they have not claimed authority to force that outcome.

And it could be that he was talking about parallel authority to protect a state from a foreign invasion. Indeed, some supporters of S.B. 1070 have made that very argument. But it is not clear that the defense of the Nation’s borders is a constitutionally shared responsibility of national and state governments, unless state troops are summoned into national service under the Constitution’s Article I to help “suppress insurrections and repel invasions.”

Moreover, the Justice’s comments seemed to imply that those who “do not belong here” do not, in fact, have any constitutional rights that would protect them from a state’s official restraints upon them. Even the dissenters in the Hines decision in 1941 commented: “The Fourteenth Amendment guarantees the civil liberties of aliens as well as of citizens against infringement by state action in the enactment of laws and their administration as well.”

One of the issues that the Supreme Court will not be deciding, at this stage in the Arizona case, is whether some parts of S.B. 1070 are invalid because they may lead to racial discrimination against undocumented immigrants. When lower courts move to sort that out, the determining factor probably will not be whether a state has power to exclude them, but rather how it deals with them while they are in this country.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

The judicial arithmetic is important in this case, because only eight Justices will be taking part in deciding it, and that always raises the prospect of a 4-4 split. But if the Court does divide that way in the case of Arizona v. U.S., Arizona loses. That’s because an even split will uphold a federal appeals court ruling forbidding Arizona to enforce the most controversial parts of S.B. 1070. (Justice Elena Kagan is not taking part, probably because of her former role in the Obama Administration Justice Department.)

Sometimes in hearings before the Supreme Court, atmospherics can tell a lot about how the two competing sides are faring. On Wednesday, it was apparent that Arizona had found some sympathy for its claim that it had to protect itself from illegal immigrants, and that the federal government had overstated its protest that Arizona would disrupt government immigration policy.

Perhaps much could change as the Justices, over perhaps the next eight weeks, ponder just how to rule on S.B. 1070, and appearances from Wednesday might prove to have been misleading. In the meantime, though, as the Nation awaits the actual outcome, the narrative will spread that states are likely to gain significant new authority to deal with a problem that has escaped the federal government’s management for generations.

Justice Anthony M. Kennedy, so often the holder of the decisive vote when the Court is divided, seemed to give impetus to that narrative in the hearing on the case.

He suggested to the government’s attorney, Solicitor General Donald B. Verrilli, Jr., to proceed on two assumptions. First, that the federal government did not have the resources to fully enforce immigration restrictions, and, second, that Arizona was experiencing “social disruption” and “economic disruption” from illegal immigration. Given that, Kennedy asked, why would the state not be entitled to ask its legislature to take some action.

Verrilli responded that, in doing so, a state had to confine its response to cooperating with the federal government in the way that federal officials, who have primary authority, wanted. What Arizona had done, instead, Verrilli argued, was to opt for a program of “mass incarceration,” putting many illegal immigrants in jail or prison instead of following the more balanced approach the federal government preferred.

But that argument about a supposed refusal of Arizona to cooperate properly was dismissed by Justice Sonia Sotomayor, whose vote the federal government surely would need to prevail. She told the Solicitor General that his line of argument was “not selling very well; why don’t you try to come up with something else?”

Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia took turns trying to dismantle the federal government challenge, provision by provision. And Scalia went so far–in a comment that no other Justice openly supported–as to argue that a state like Arizona could simply shut its own borders so that no illegal immigrant ever entered.

If the Chief Justice, Scalia, and Kennedy were on Arizona’s side, as seemed evident, then the state would need only two more. Justice Clarence Thomas’ vote for Arizona is almost assured, because he is hostile to the kind of technical legal argument that Verrilli made about federal vs. state power.

That would leave Arizona needing one vote from one of the other four–Justice Sotomayor, and Justices Samuel A. Alito, Jr., Stephen G. Breyer, and Ruth Bader Ginsburg. If Wednesday’s hearing could be trusted as a sign of the Court’s leanings, that fifth vote, and perhaps more, might well be forthcoming when the decision finally emerges.

Under the Court’s normal operations, there is no specific timetable for the ruling. When the Justices assemble in private on Friday morning, they will cast a preliminary vote on the case, and that will be the basis for an assignment of a Justice to begin drafting an opinion. It seems likely that the final ruling will not emerge until late June–no doubt, placing it in the midst of the federal election campaign already in progress.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

The Justices, after examining how the parties may fare in redistricting Congress and state legislatures, and whether Congress exceeded its powers in passing the new health care law, will close out their hearing calendar on Wednesday with a third politically volatile event: an hour-long review of states’ power to regulate the lives of undocumented immigrants.

Although the timing is a coincidence, the hearing would seem to be a judicial echo of the political dispute between likely Republican presidential nominee Mitt Romney, who has described the Arizona law as a model for other states, and President Obama, who has sent his legal team on a mission to scuttle S.B. 1070’s main provisions.

The Justices, of course, will do what they can to put political notions aside as they explore the division of power over immigration between national and state governments. But with a final decision in the Arizona case likely to emerge by late June, the outcome cannot avoid becoming a focus of campaign debate.

Moreover, that decision may well have an impact on other new laws that were passed in the wake of Arizona’s: in Alabama, Georgia, Indiana, South Carolina and Utah.

For the Court, this is not a new issue. Thirty years ago, a Supreme Court Justice wrote in a Texas case: “Perhaps because of the intractability of the problem, Congress–vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens–has not provided effective leadership in dealing with this problem.”

Even so, the Court back then was unwilling to let a border state deal with the problem by, for example, barring the children of undocumented immigrants from attending public schools.

The question now recurs before the Court: with Congress still unwilling (or unable politically) to legislate in a comprehensive way on the fate of perhaps 12 million non-citizens living illegally in the U.S., are the states free to step in to impose significant restrictions on their social and economic opportunities?

The sponsors of Arizona’s S.B. 1070 and similar measures candidly admit that such measures are designed to be sufficiently onerous as to lead millions of those individuals and families to leave altogether, preferably to return to their home countries rather than moving to other states.

And, because of that very objective in the law, the federal government has challenged it on the theory that Arizona is trying to have its own policy on deportation, and that is something that the Constitution treats as a matter for the federal government–alone, or in cooperation that it invites from the states.

As the fight over S.B. 1070 reaches the Justices, it is a test of whether Arizona can begin enforcing four provisions that currently are on hold under lower court orders. Two of the sections create new crimes for undocumented immigrants: for failure to have legal immigration papers while in Arizona, and for applying for or holding a job. The other two require police to check up on legal status, or arrest without a warrant, an individual who is suspected of not having a legal right to be in the U.S.

The federal government has challenged those four sections on the theory that they rely upon a regime of strict law enforcement that conflicts with the way federal officials have set priorities in enforcement of immigration laws.

Thus, the central focus of Wednesday’s hearing appears likely to be on the question of whether the federal approach and Arizona’s approach can co-exist. Lurking in the case, though not centrally at issue at this stage, is whether the Arizona approach amounts to a form of “racial profiling” that will reach not just undocumented immigrants, but Hispanics and other persons of color who actually have a legal right to be in the country–including citizens and legal permanent residents.

The argument this week provides a return engagement between the two leading advocates who faced off last month when the Court reviewed the constitutionality of the new health care law: U.S. Solicitor General Donald B. Verrilli, Jr.–the government’s top advocate before the Court–and Washington attorney Paul C. Clement, a former Solicitor General who is now considered one of the most talented private advocates before the Court.

Once Wednesday’s hour is over, the Court will meet in private on Friday to cast its first, preliminary vote on the Arizona law, and begin probably weeks of deliberation.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

News headlines, politicians, and hot-button issues come and go, but one 225-year-old document continues to emerge in our conversations about our nation’s most important questions and challenges: the Constitution. The Constitution is a big buzzword for Election 2012, and more than ever, citizens, pundits, and politicians are turning to the Constitution for answers–and sometimes ammunition, as they try to prove the Constitution is on

Here’s a brief look at the top constitutional news stories and commentaries from this week.

The Constitution and … cell phones

This week the New York Times revealed internal documents detailing how local law enforcement has extensively used cell phone data to track citizens. This trend has prompted questions about the appropriate balance of helping law enforcement do its job and providing oversight to prevent infringement on civil liberties.

The Constitution and… teens on Twitter

After posting a profanity-packed tweet, 17-year-old Austin Carroll faced expulsion from his high school. Carroll argues that his words weren’t directed anyone and didn’t involve the school, and that he wasn’t using a school computer or network–he posted the tweet while at home. His case is one of several in recent years that have prompted difficult questions about the conflicting interests between school administrators’ attempts to monitor students’ online activities with the students’ First Amendment free speech rights and Fourth Amendment protections against unreasonable search and seizure.

The Constitution and… strip searches

The Supreme Court ruled 5-4 this week that any person arrested and held temporarily for any offense can be subjected to a strip search, whether or not there is a reasonable suspicion that the person is dangerous or carrying contraband. Learn more about the case from Lyle Denniston’s analysis.

The Constitution and… President Obama’s civics lesson

On April 2, President Obama stated:

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. … [I would] just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and—and passed law.”

Many people quickly pointed out that President Obama’s statements reflected a misunderstanding of the separation of powers of the branches of government. Yes, the Supreme Court justices are appointed, not elected–but that’s consistent with Article III of the Constitution. And yes, the Supreme Court can overturn a law if they so choose–since the 1803 ruling in Marbury v. Madison, the Supreme Court has claimed the authority to determine the constitutionality of acts of Congress.

The president’s critics were quick to point out the irony that he taught law, including constitutional law, at the University of Chicago. The White House later attempted to clarify his comments.

The Constitution and… same-sex marriage

Several same-sex couples have filed a lawsuit challenging the Defense Against Marriage Act. According to the 1996 law, the federal government does not recognize same-sex marriages, even if they are legal in a state, for immigration purposes. The couples argue that because of the equal protection guaranteed in the Constitution, their same-sex marriage should qualify for their green card application and other immigration purposes.

Further reading from Constitution Daily

Constitution Check: Is the Roberts Court driven by politics? — Lyle Denniston

The secret life of the Commerce Clause — Carl Cecere

Constitution Check: Is there a constitutional right to “stand your ground”? — Lyle Denniston

Holly Munson is the Programs Coordinator for Public Engagement at the National Constitution Center.

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: The Supreme Court and its coming decision on health care.

The statement at issue:

“A split court striking down the [Affordable Care] Act will be declaring itself virtually unfettered by law. And if that happens along party lines, with five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”

-Editorial in The New York Times, “The Roberts Court Defines Itself,” April 1.

We checked the Constitution, and…

James Madison’s concept of the separation of powers of the national government has always been thought to be a stroke of genius because it guaranteed a good deal of independence of the three major branches so that they could check each other, to prevent tyranny. In that arrangement, the judiciary has come to be the arbiter of final constitutional meaning (unless there is a formal amendment), and that has worked well, by and large.

In today’s polarized political environment, however, commentators (including even newspaper editorial writers) can get caught up in the partisanship, and assume that government action not to their liking is necessarily driven by political bias. Under that view, Supreme Court Justices simply cast votes in ways they think the President who appointed them and that President’s party would have wanted; they supposedly can’t help themselves but to do that.

That borders on the silly and, at a minimum, shows a lapse of historical memory.

Recall that the Supreme Court in 1952 found that President Harry Truman had abused his constitutional power when he seized America’s steel mills, but it could hardly be said that that was driven by political hostility to a Democratic President. The most influential opinion issued with that decision–one that still acts as a strong check on Executive Branch excess–was written by Justice Robert H. Jackson, who got his seat on the Court through a Democrat, President Franklin Roosevelt.

President Dwight Eisenhower learned to his dismay that Justice William J. Brennan, Jr., had a mind of his own. And so did Chief Justice Earl Warren, another Eisenhower appointee. President John F. Kennedy surely would not have been all that pleased with the way Justice Byron R. White turned out. President Richard M. Nixon was sorely disappointed in Justice Harry A. Blackmun.

If the Court under Chief Justice John G. Roberts, Jr., were to strike down the new health care law, or at least a major part of it, perhaps those upset by the decision will feel vindicated because, they no doubt will say, he and the others joining him had voted their politics. If the majority is made up of the same five Justices who joined in the campaign finance ruling on Citizens United v. Federal Election Commission, those critics will feel further confirmed in their assumptions.

But how does one explain that two federal judges, named to their courts by Republican Presidents, had voted to uphold the key feature of the new law–the individual insurance mandate? Were Circuit Judges Laurence H. Silberman and Jeffrey S. Sutton “driven by politics”? And why did two other circuit judges, one named by a Democrat, the other by a Republican, both write opinions declaring that the courts should not rule at all on the new law’s mandate until after it actually went into effect in 2014?

It is neither naïve nor sycophantic for a detached student of the Court to point out that many of the biggest issues the Court must face are far from easy, and far from guided mechanically by past precedent. If one is sure that the Court’s choice about the health care law is “fettered” by the law laid down by prior precedent, one simply cannot have read those precedents. The Court is, in a very real sense, starting over with the main parts of this case. If the outcome were a slam-dunk, it would have been settled the moment the hearings were over (and maybe even before, by a summary ruling without a hearing), but it wasn’t, and it won’t be, for weeks and perhaps a few months.

Being a Supreme Court Justice involves the exercise of judgment, and the process that the institution follows tends to neutralize political or partisan influence over that judgment. Justices do bring their own life experiences, and a good deal of their internal value systems, with them, but unless one is to assume entirely bad faith, there has to be a measure of belief that they will not be fettered by those private preferences.

The end result of this process requires each Justice who writes an opinion to defend the position he or she has taken, along with colleagues lined up on the same side, and the product can be judged on its merits. Where there is deep disagreement, the Court will have its own internal critics in the dissenting Justices, and, most of the time, the majority will seek to answer–on the merits.

Whatever one thinks about this process, it is not one that “sidestep[s] the Constitution.” It is what the Court has been doing since 1803.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Painting by Junius Brutus Stearns of the Constitutional Convention of 1787

Last week, an epic series of constitutional challenges finally made its brawling, hotly anticipated way into the U.S. Supreme Court’s stately chamber, as the Court heard argument on the fate of the Patient Protection and Affordable Care Act, Congress’s massively complex overhaul of the U.S. health care system.

The heart of that battle concerns whether Congress possesses the power to force individuals to purchase a product—namely health insurance—simply by virtue of their residence in the United States.

The decisions in these cases will be the Roberts Court’s first major foray into the scope of Congress’s authority to “regulate Commerce . . . among the several States,” some of the most hotly contested territory in all of constitutional law.

For decades, the Court has routinely upheld challenges to Congressional actions that have regulated, in the name of interstate commerce, matters that do not actually cross state lines, such as racial discrimination, home-grown marijuana, or even a farmer’s consumption of his own wheat, on the theory that even these isolated activities affected interstate commerce when aggregated with other similar activities. While supporters find such robust Congressional authority necessary to combat complex social problems, critics of this “effects” theory vociferously argue that it upsets the national balance of federalism, and sacrifices individual liberty by ceding it to the national government.

Now the Roberts Court must decide for itself where the line should be drawn between federal and state; national and local. In doing so, it would do well to consider the views of the Framers. They have a rich story to tell, containing some fascinating secrets, that can help us better understand the Commerce Clause and place the individual mandate in context.

The Constitutional Sources Project, the nation’s leading online repository of documents relating to the Founding, has teamed up with groups of Harvard Law School Students in order to share this story with the public, the parties before the Court, and the justices themselves. What follows is just a few of the fascinating tidbits they unearthed.

The want of a central authority over commercial affairs was one of the major weaknesses of the Articles of Confederation, and a central animating purpose behind the Constitutional Convention that convened in Philadelphia in the summer of 1787. Under the Articles, states had enacted a variety of trade regulations to benefit themselves at their sister states’ expense, engendering, as James Madison put it, “rival, conflicting and angry resolutions.” The Convention aimed to put an end to such mischief with the Commerce Clause.

Madison, the leading Federalist at the Convention, would later claim that this purpose also placed a very tight limit on Congress’s power over commerce. To him, the commerce power did not permit Congress to legislate private behavior at all; it only empowered Congress to regulate the states themselves—to overturn or counteract the anti-trade regulations that individual states had passed under the Articles.

What Madison really thought

Madison’s forceful vision has been adopted by those that claim the Court has gone too far in granting Congress expansive power over commerce. But the first great secret of the Commerce Clause is that Madison was, to say the least, overselling things. Not only did Madison himself sign off on a far broader vision of Congress’s power at one point during the Convention, but his view was not universally held at the time the Constitution was adopted and ratified.

Congress’s power over commerce first sprang into life through a resolution passed by the body of delegates to the Constitutional Convention—including Madison’s Virginia Delegation—to grant Congress the power “to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” This was a grant of almost plenary authority to Congress to regulate virtually any feature of national life, for essentially any purpose it felt compelled to address, and was in no way compatible with what Madison had always contended to be the true meaning of the clause.

Of course, that expansive power does not appear in the Constitution. It was instead limited to “regulation” of that portion of “Commerce” “among the Several States.” The change was made by the Committee of Detail, a subcommittee of the Convention, which was charged with organizing the individual resolutions passed by the Convention and reducing them to writing.

The intellectual leader of the committee was James Wilson, delegate from Pennsylvania and future Supreme Court Justice. Wilson would later explain to the Convention that the Committee ultimately deviated from the Convention’s earlier resolution because the Committee felt a broader power would confer too much discretion to Congress.

While Wilson’s Committee limited the commerce power as a means to rein-in Congress, Wilson himself still understood the authority conveyed to be considerably broader than Madison did. To Wilson, Congress would not be empowered to act on matters purely “within the bounds of a particular state,” but in his view, “whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, [belongs] to the government of the United States.”

Wilson’s explanation of the Commerce Clause’s meaning, permitting Congress to regulate even objects of government entirely within one state so long as their “effects” cross state lines, sounds a great deal like the much maligned “effects” test used today in measuring the scope of Congress’s commerce power. From this, a strong case could be made for the constitutionality of the individual mandate. After all, the burden of providing for the poor and uninsured is one of the major factors driving the ever-escalating cost of health care, and the effects of these forces can be felt nationwide.

To be fair, just because Wilson related his explanation for the meaning of the Commerce Clause does not mean that everyone at the Convention heard him or agreed with what he was saying. Madison could have quite reasonably understood the text to have a different meaning, and other members of the Convention, notably George Mason, expressed an understanding far closer to Madison’s than Wilson’s. But the fact that Wilson himself, the putative author of the clause, understood it to have a meaning almost identical to that utilized by the present Court should at least quiet criticisms that the modern test is illegitimate.

An unprecedented mandate?

The second great secret of the Commerce Clause is that the individual mandate is not entirely unprecedented. While several of the lower courts to have considered the cases now before the court—and indeed, the Congressional Budget Office itself—suggested that Congress had never before compelled individuals to purchase products from private companies, that is not entirely correct. In fact Congress enacted just such a requirement in 1793, just two years after ratification of the Constitution. In the Militia Act, Congress required all members of the militia, which was every able-bodied male ages 18-44, to purchase and maintain not only a musket, bayonet, powder and balls, but also “a knapsack, a pouch, with a box therein” “shot-pouch” and “powder-horn.”

Of course, there are some serious problems with trying to use the Militia Act to glean the meaning of the Commerce Clause. The Constitution provides Congress a specific power to “provide for organizing, arming, and disciplining, the Militia.” So Congress wasn’t utilizing the Commerce Power when it passed the Militia Act. And not all Congressional powers are created equal. Congress can do things under some of its powers, especially those that relate to national security, that would be absurd to do under others. We would not question Congress’s power to draft citizens to serve in the armed forces, even if it were to fight an unjust war under unfit command. But that does not mean that Congress could pit citizens against each other for sport, as in The Hunger Games, even if doing so would raise a great deal of tax revenue.

This doesn’t necessarily make the Militia Act completely irrelevant, however. Some of challengers to the mandate seem to suggest that Americans possess a fundamental individual liberty interest outside the Commerce Clause, perhaps lodged in the Ninth or Tenth Amendments, that limits all of the national government’s powers, and prohibits the government from forcing people to buy things. The Militia Act seems to throw water on this idea. That Congress would feel empowered decide for the militiaman that he must carry his kit in a knapsack (with a box, no less) rather than leave that choice to him, his state, or his unit, suggests that it did not feel itself subject to any such free-floating economic freedom.

But what if this principle of economic liberty resides within the Commerce Clause itself? This seems a closer question. After all, Congress is only allowed to regulate “commerce.” Most people think of “commerce” as limited to voluntary, bargained-for exchanges of goods and services (And, in fact, this was also the predominant meaning that attached to the term during the Founding Era). An individual’s decision not to enter into a transaction might not fit into that conception of “commerce.”

Not one, but three commerce clauses

This leads us to the final secret of the Commerce Clause: there is not one commerce clause, but three. In Article I, section 8, Congress is empowered “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Because the same term “Commerce” modifies three different regulatory objects, we might get a sense of what the term means by examining how it was used in those other contexts.

And one of the very first things the new national government did was legislate interactions with the native tribes, through a series of Trade and Intercourse Acts. Some of these laws explicitly regulated trade. And others could be connected with Congress’s other powers, such as the treaty power. But some, such as those punishing “any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians,” must fall within a broader conception of the meaning of “Commerce” than mere trade. And this broader meaning might be enough to include regulating people’s decisions on how they pay for health care.

Continuing the debate

The point in sharing these secrets is not to demonstrate that either side has the better end of history in the debate over the constitutionality of the individual mandate. To the contrary, this nation’s constitutional history will rarely, if ever, prove neat, clean, and universal enough to unequivocally resolve our constitutional disputes. But the fact that both sides can draw support for their position from that history certainly suggests that none of their concerns are frivolous or illegitimate. We should remember that in today’s debate over the individual mandate, we are only continuing a debate that started with the Founders themselves. And that ought to temper the terms of our national discussion. Indeed, if the debate over the Commerce Clause shows us anything, it is that our history belongs to all of us.

Carl Cecere is an appellate lawyer in Dallas, Texas, and a member of the Constitutional Sources Project’s Legal Advisory Board.