[lit-ideas] Re: Hartiana
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- Date: Tue, 31 Mar 2015 06:21:52 -0400
Goodhart, who preceded Hart as professor of Jurisprudence at Oxford say,
I'm paraphrasing, that the Constitution of the U. S. A. was the 'best', 'most
perfect' 'legal' document ever written. He was American. It is predictable
that the intuitions of an Englishman succeeding Goodhart ("It's Goodhart
without the good", the gossip at the Oxford Law Faculty then was) would vary
-- 'two countries separated by the same language'? Not just that. For
Hart, different 'rules of recognition' for two 'states'.
Still Hart would reflect on the American Constitution, especially when,
after retiring from the Chair of Jurisprudence he started to read what HIS
successor, another American, Dworkin, was writing against Hart. This moved
Hart to explore this 'rule of recognition': it may well be that in a state
this rule may incorporate some moral, besides the necessary legal element.
Dworkin was not convinced, and not amused, either.
How would Hart's intuitions fit in the interpretation here -- Nor Grice's
for that matter. Grice’s conversational maxims (as he calls them, to echo
Kant -- he had previously spoken of desiderata and principles of candour,
benevolence, self-love, and clarity) are norms that apply most naturally in
ordinary conversation, where the common aim of the participants is the
co-operative exchange of information. The basic model is a simple, bilateral
conversation, where one person asserts a proposition (or perhaps asks a
question) which says one thing but also communicates something else.
Hart's idea of language is slightly different, in that is more
Wittgenstein-oriented, and relies on the idea of criterion as the basic
semantic
keyword.
Whatever else is true about the Constitution of the U.S.A., it does not
seem to fit easily into this model of a simple, bilateral, cooperative
conversation.
For one thing, the historical evidence suggests that the framers were
often engaged in what we might call highly "strategic" behaviour when they
*selected* what language to use in the Constitution. And so the philosopher
who
starts by analysing the ordinary language he encounters has to proceed, to
use Hart's adverb, 'carefully'
Far from adhering to norms like "be brief and orderly," "avoid ambiguity,"
"avoid obscurity of expression" and the like, the framers sometimes were
deliberately verbose, ambiguous, or obscure in their choice of language.
In the same vein, they often were less informative and cooperative than
they could have been —again, deliberately and self-consciously so.
Likewise, they typically selected the language of particular clauses as
result of a political compromise..
Finally, some of their most intractable disagreements were settled by
tacitly acknowledged incomplete decisions.
Simply put, they left some issues for another day. And that day is perhaps
TODAY.
Yet, Hart's and Grice’s approach to philosophy via ordinary language
conceptual analysis has much to teach us about the Constitution.
In many cases, Grice’s maxims, for example ("maxim" is a
Kantian-theory-laden term, and recall he used merely desiderata and principles
in the
earlier versions of his implicature theory) appear to yield results that are
closely analogous (if not identical) to well-established canons of both
statutory and constitutional interpretation, such as ejusdem generis, expressio
unius, and the rule against surplusage.
Making explicit the precise norms that underlie these canons, alla Hart
and Grice, can thus be quite illuminating.
Grice’s categories of what a sentence means, what an utterer says, and
what a speaker means reflect genuine conceptual differences (as Hart
acknowledges in his "Signs and Words" -- for the Philosophical Quarterly),
moreover,
which can be applied to constitutions and other legal texts, in addition
to everyday uses of language.
Significantly, the same is true of the useful distinction between
entailment and implicature -- which can be put to use elsewhere too (as in
Hart's
oblige-obligate).
It may well be argued that the Constitution is shot through with
implicatures, rather than entailments.
Carefully distinguishing the one from the other can be useful for many
reasons, including getting clear on the fact that what is commonly referred to
as the “original meaning” (a Griceian keyword, 'meaning', analysed alla
criterial semantics by Hart) of the Constitution frequently turns on
constitutional implicature, rather than "what is explicitly communicated" or
“what
is entailed” by constitutional provisions.
A few constitutional provisions can be analysed alla Grice/Hart.
For example, the Eleventh Amendment reads:
i. The judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of
the
United States by citizens of another state, or by citizens or subjects of
any foreign state.”
Does this amendment explicitly communicate (or even entail) that federal
courts lack jurisdiction to review state criminal convictions?
No, it does not. Nor does it logically imply this, according to the
Supreme Court’s decision in Cohens v. Virginia.
In a closely reasoned opinion, Chief Justice Marshall held that a writ of
error to review a state criminal conviction was not a "suit in law or
equity," and that even if it were, the precise language of the Eleventh
Amendment does not extend to suits "commenced or prosecuted against one of the
United States" by one of its own citizens.
"The framers could have, but didn’t" form of argument on which Marshall
implicitly relied in Cohens is familiar and commonplace.
In essence, such an argument turns on the cancelability of Gricean
implicature or the defeasibility of Hartian criterial semantics.
Or consider finally the Vesting Clause of Article I, which reads:
ii. All legislative powers herein granted shall be vested in a Congress of
the United States.
Does this clause limit Congress to the exercise of its enumerated powers?
It seems to do so.
Thus, one often encounters adages about disputes over the scope of federal
powers:
iii. Congress only has the powers ‘herein granted'.
iv. The powers of Congress are only those herein granted.
v. Per Article I, Section 1, Congress' law-making power is textually
limited to the ‘legislative powers herein granted’.”
Yet the Vesting Clause does not explicitly communicate —nor does it entail
—that Congress has only the powers that are "herein granted" to it in
Article I or elsewhere in the Constitution.
Again, this may or may not be a plausible implication of this clause, but,
if so, the implication in question is an implicature, not an entailment.
Grice’s test of cancelability is particularly revealing here:
vi. All legislative powers herein granted shall be vested in a Congress of
the United States.
In addition, Congress may exercise any powers it wishes, so long as it
thinks they are necessary and proper.
vii. All legislative powers herein granted shall be vested in a Congress
of the United States. Congress shall also have whatever other powers are
vested in the Swedish Parliament by the Swedish Constitution, now or at any
time in the future.
viii. All legislative powers herein granted shall be vested in a Congress
of the United States.
Congress may also prohibit anything it wants, if it violates the natural
moral law or (which is the same thing) if the thought of it makes the man on
the Clapham omnibus sick.
Vide: Nicholas Rosenkranz, “Treaties Can Create Domestic Law of Their Own
Force, But It Does Not Follow That Treaties Can Increase The Legislative
Power of Congress,” The Volokh Conspiracy.
The fallacy here is to assume "All A’s which are B’s are also C’s" ENTAILS
"All A’s which are C’s are also B’s." (Grice borrows, but never returns
'entail', in this usage, from G. E. Moore).
From “All legislative powers [which are] herein granted are [also] vested
in Congress,” one can NOT infer that
“All legislative powers [which are] vested in Congress are [also] herein
granted.”
None of these vesting clauses is self-contradictory, and all of them
effectively cancel the implicature that Congress is "textually limited" to the
other powers "herein granted" by the Constitution.
The inference that Congress is limited to these powers is not, therefore,
part of the "origina"l MEANING of the Vesting Clause, if that phrase is
taken to extend only to the "sentence meaning" (or as Grice prefers,
expression-meaning) of that clause, or to what the clause says or entails. And
recall Hart, "Grice is a marvellous dialectician").
So, what powers are vested by the Constitution in the Government of the
United States?
For at least three reasons, it seems reasonable to expect a simple and
straightforward answer to this question.
First, it has become a virtual axiom of legal philosophy that the United
States is "a government of limited and enumerated powers."
If the powers of government are enumerated, it ought to be possible to
enumerate them.
Second, one of the cornerstones of American federalism, the Tenth
Amendment, also seems to require a clear answer to our question.
The Tenth Amendment declares 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."
To understand what powers are reserved by this amendment, one first needs
to know what powers are delegated.
Third, the Constitution itself refers to "powers vested by this
Constitution in the Government of the United States" in another important
provision,
the Necessary and Proper Clause, which declares that "Congress shall have
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
or Officer thereof.”
To comprehend this language, with its implicature and defeasibility, one
needs to grasp the meaning of its constituents – one of which is the very
phrase that interests us.
For all of these reasons, then, one might naturally assume that it should
be easy to provide a clear and convincing answer to the question with which
we began.
What powers are vested by the Constitution in the Government of the United
States?
Here is where the problems begin, and where sensitivity to the lessons Hart
(via in part Wittgenstein) and Grice (via in part Peirce) taught us
reveals that what may look simple on the surface is actually rather
complicated.
The question presented is not what powers the Constitution vests in
Congress, but what powers it vests in the Government of the United States.
That these are different categories follows from Grice’s maxims, as well
as from any number of considerations. The “stile” or official name of the
federal government, which appears on the face of its laws, contracts, and
treaties, is “The United States of America.” "Legally speaking" (as Hart
would put it), this government is a corporation, an ARTIFICIAL LEGAL PERSON
endowed by its creators with various capacities, including the ability to
endure in perpetual succession.
By common acknowledgement and established practice, the United States has
also the power to sue and be sued; to enter into contracts; to fulfill its
treaty obligations; to acquire, sell, hold, and lease property; to operate
under a common seal; and a host of other unenumerated powers that are
incidental to every corporation, unless they are explicitly denied or withheld
by its constitution or articles of incorporation.
.
By contrast, the Congress of the United States is NOT an independent legal
corporation, and it does not possess any of these properties. Congress is,
rather, a department of the Government of the United States, and it, too,
is vested with certain powers by the Constitution, including, of course, the
enumerated powers of Article I, Section 8. All of these enumerated powers,
and indeed every power vested in Congress or the other departments or
officers of the United States, are also powers vested by the Constitution in
the Government of the United States. But Congress is not the same thing as
the Government of the United States. Nor, for that matter, are the President
and two-thirds of the Senate. As Butler said, "Everything is what it is,
and not another thing."
The Constitution itself requires us to draw a distinction between the
powers it vests in Congress or other Departments or Officers of the United
States, on the one hand, and the powers it vests in the Government of the
United
States, on the other. It does so in particularly noteworthy provision: the
Necessary and Proper Clause.
The Necessary and Proper Clause was added to the Constitution by James
Wilson, one of the founding generation’s most sophisticated political
theorists, and perhaps its most outspoken champion of implied national powers.
Contrary to a popular misconception, the three most significant words
Wilson used in drafting this clause were not "necessary and proper" but
"and all other"
—a common formula by which “sweeping clauses” perform their essential
function of canceling the implication that a list of items is exhaustive --
hence Hart's idea of defeasibility that he borrows from Wittgenstein via
Waissmann.
Wilson’s sweeping clause is exceedingly complex. It cancels the
implicature that Congress’s other Article I powers are exhaustive. It also
implicitly
differentiates distinct sets of powers vested by the Constitution in the
Government of the United States, only some elements of which are clearly
specified.
Teasing apart the various powers given and reserved by the Constitution is
no easy task, a feature of the document that Wilson exploited during the
campaign to ratify the Constitution.
Before the adoption of the Constitution, a distinction between the powers
vested in Congress and the powers vested in the Government of the United
States was not edrawn in an easy way.
For all intents and purposes, Congress and the Government of the United
States were one and the same, a fact illustrated by the common use of the
phrase "the United States in Congress assembled" in the Articles of
Confederation and other American state papers.
Moreover, federal authority did not rest on popular sovereignty, but on an
agreement between the states.
In his early drafts of the Constitution for the Committee of Detail,
Wilson manages to change all this, making clear three points:
First, that “the United States of America” was the official name of a
"government", not a confederation;
Second, that “Congress” was the name of a department of that government,
not the government itself
Third, that the powers vested by the Constitution in Congress and the other
Departments and Officers of the United States did not exhaust, but instead
were merely a proper subset of, the powers vested by the Constitution in
the Government of the United States.
Wilson then clarifies that the ultimate source of political sovereignty
was the people themselves. The records of the Committee of Detail lend
support to these conclusions and shed light on the subtleties of Wilson’s
"thought process" and its outward criterion, as Hart would put it.
For example, these recordds indicate that Wilson toys with different
versions of the Preamble, all of which used the transformative language,
“We the People,”
before settling on the following version:
We the People of the States of New Hampshire, Massachusetts, Rhode-Island
and Providence Plantations, Connecticut, New-York, New-Jersey,
Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and
Georgia,
do ordain declare and establish the following Constitution for the
Government of ourselves and our Posterity.
Likewise, although Wilson patterns the first two articles of his draft on
their counterparts in the Articles of Confederation, Wilson makes a pair of
significant revisions along the way.
The first revision is that the "United States of America" became the
official name of a "government", not a confederation.
The second revision is that the powers vested in the United States were now
"supreme legislative, executive, and judicial powers" rather that only
those expressly delegated.
With respect to the national legislature, Wilson drafts multiple versions
of what became the Vesting Clause of Article I, including one version that
used the familiar phrase "U.S. in Congress assembled," before declaring
instead:
“The legislative Power shall be vested in a Congress, to consist of two
separate and distinct Bodies of Men, a House of Representatives, and a
Senate; each of which shall in all Cases, have a Negative on the other.”
Turning to the Necessary and Proper Clause, Wilson took John Rutledge’s
initial draft of that clause, which had given Congress the power
"to make all Laws necessary to carry the foregoing Powers into Execution"
Wilson first revises and expands it as follows:
"to make all laws that shall be necessary and proper for carrying into full
and complete execution the foregoing powers"
"The legislative Power of the United States shall be vested in two
Branches a Senate and a House of Representatives; each of which Bodies shall
have
a Negative on the other."
"The legislative Power of the United States shall be vested in a general
Assembly to consist of two separate and distinct Bodies of Men, the one to
be called the House of Representatives, of the People of the United States
and the other the Senate of the United States."
"The Supreme legislative Power of the United States shall be vested in a
general Assembly to consist of two separate and distinct Bodies of Men, one
to be called the House of Representatives, the other to be called the
Senate, each of which shall in all Cases have a Negative on the other in all
cases not otherwise provided for in this Constitution."
"The legislative Power of the United States shall be vested in a general
Assembly to consist of two separate and distinct Bodies of Men, a House of
Representatives and a Senate, each of which shall in all Cases have a
Negative on the other."
"The Legislature shall consist of two distinct Branches—a Senate and a
House of Delegates, each of which shall have a Negative on the other, and shall
be stiled the U.S. in Congress assembled."
Wilson then adds the crucial sweeping clause language ("and all other
powers") to Rutledge’s “foregoing powers’ provision, while taking care to
differentiate the "other powers" vested in the Government of the United States
from the "other powers" vested in its Departments or Officers:
"and all other powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof."
Perhaps because he thought it was superfluous ("do not be more informative
than is required"), Wilson actually deleted Rutledge’s "foregoing powers"
provision altogether, along with the phrase “full and complete.”
As a result, Wilson's draft of the Necessary and Proper Clause looked like
this for a time:
"and to make all laws that shall be necessary and proper for carrying into
execution all other powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof."
Nevertheless, Wilson (or another committee member, perhaps the full
committee) ater decides to put Rutledge’s "foregoing powers" language BACK
into
the Necessary and Proper Clause, *while* retaining Wilson’s "all other
powers" provision.
Consequently, the version of the clause that the Committee of Detail
presented to the convention on August 6 included both Rutledge’s "foregoing
powers" provision and Wilson’s "all other powers” provision:
"and to make all laws that 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 or
Officer thereof."
It seems clear to a Griceian or Hartian that one of the functions of the
Necessary and Proper Clause was to give Congress the instrumental power to
carry into effect its other enumerated powers.
A second function was, as per via Hart's defeasibility, to cancel the
implication that Congress’s "foregoing" enumerated powers were exhaustive.
The clause Wilson drafted did much more than this, however.
Just this much could have been achieved by means of a more targeted
sweeping clause, which referred only to "all other powers" vested in Congress.
For example, Wilson could have achieved both of these ends using the
following language in these three alternatives:
Alternative #1: "and to make all laws that shall be necessary and proper
for carrying into execution the foregoing powers, and all other powers
vested by this Constitution in the Legislature of the United States."
Because he understood that Congress would need to carry into effect the
powers vested in other parts of the federal government, Wilson could have
drafted a broader "all other powers" provision, which encompassed all of the
government’s other departments and officers. This is a second alternative:
Alternative #2: "and to make all laws that 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."
If Wilson had wanted to re-inforce the notion that all of the powers
delegated to the Government of the United States are assigned to one or more
of
its departments or officers, he might have omitted the second provision
entirely and drafted the full clause in this manner, as per a third
alternative:
Alternative #3: "and to make all laws that shall be necessary and proper
for carrying into execution the foregoing powers, and all other powers
vested by this Constitution in any Department or Officer of the United States."
Each of these clauses is a genuine alternative to the Necessary and Proper
Clause that Wilson could have drafted, but did not. Moreover, each has its
own unique set of implications, which were evidently appealing to various
political interests and factions at the time.
To understand why and to grasp what made critics of the Constitution
anxious about the more complex Madison’s effort to limit the scope of implied
national powers in this manner has apparently been overlooked by non-Griceians
and non-Hartians, who tend to accept at face value his assurances that his
amendments were meant to leave the powers of government untouched.
Madison’s effort was defeated (or 'defeased', as Hart prefers) when his
prefatory language, stating that all the powers granted by the Constitution
"are appropriated to the departments to which they are respectively
distributed," was first revised in such a way as to negate its intended
implications, and then was struck altogether.
Roger Sherman in the House and Oliver Ellsworth in the Senate later each
inserted the crucial phrase "to the United States" after the word
"delegated" in Madison’s original proposal, thereby insuring that whatever
implied
national powers were vested in the language that Wilson did in fact use, it
is important to recognize that the Necessary and Proper Clause is comprised
of THREE distinct provisions, not merely one or two.
To tease apart their full implications, a first step is to distinguish
all three provisions and to assign them different names.
FIRST, there's the Foregoing Powers Provision: Congress shall have the
Power … To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers."
SECOND, there's the Government Powers Provision: "Congres shall have the
Power … To make all Laws which shall be necessary and proper for carrying
into Execution … all other Powers vested by this Constitution in the
Government of the United States."
THIRD, there's the Department or Officer Powers Provision: "Congress shall
have the Power to make ALL LAWS which shall be necessary and proper for
carrying into Execution … all other Powers vested by this Constitution in . .
. any Department or Officer [of the United States]"
When read in the context of the other two provisions, the CENTRAL (albeit
'defeasible) IMPLICATURE of the Government Powers Provision is that the
"other powers" vested by the Constitution in the Government of the United
States are not merely identical or co-extensive with the powers vested in
Congress or other Departments or Officers of the United States.
Otherwise, the Government Powers Provision is redundant and violates Grice’
s conversational maxims flowing from a cooperative principle and his
desiderata of candour, clarify, benevolence and self-love.
The conclusion that these "other" powers are not express but IMPLIED [or
as Grice would pun, 'implicated'] powers is NOT an implication of this
provision in its own right.
Instead, the conclusion derives from the "expression" MEANING of that
provision, together with the fact that the Constitution does not expressly
vest
any powers in the Government of the United States as such, as distinct from
its various departments or officers.
The key language of the Government Powers Provision that refers to "other
powers vested by theConstitution in the Government of the United States"
must, therefore, be taken to refer to implied powers.
The Foregoing Powers Provision adds a great deal of complexity to this
picture.
On its face, the Foregoing Powers Provision affirms (i.e. explicitly
states) the existence of another set of powers — namely, those "which shall be
necessary and proper for carrying into execution the foregoing powers" of
Article I, Section 8.
Like the implied powers of the Government of the United States to which
the Government Powers Provision refers, the content of these instrumental
powers given by the Foregoing Powers Provision is left unspecified -- or
merely IMPLICATED, as Grice would have it -- via defeasibility.
The language, structure, and context of its FIRST TWO provisions thus
point to at least two sets of unspecified powers given by the Necessary and
Proper Clause.
The first is the set of implied powers vested by the Constitution in the
Government of the United States to which the Government Power Provision
refers.
The second is the set of unspecified powers given by the Foregoing Powers
Provision to carry Congress’s "foregoing" enumerated powers into effect.
Are these two sets of powers coextensive?
Applying Grice’s maxims and the rule against surplusage, the best answer
must be they are NOT.
The powers given by the Foregoing Powers Provision are vested directly in
Congress, and on its face they are clearly meant to be instrumental to the
exercise of the other enumerated powers in Article I, Section 8.
Although the latter are not ends-in-themselves, the powers given by the
Foregoing Powers Provision thus stand to the enumerated powers as means to
ends.
This relationship is asymmetrical.
Congress may utilize these unspecified powers if and only if it does so in
order to carry into effect the enumerated powers, but not the other way
around.
The unspecified powers given by the Foregoing Powers Provision might be
called "subordinate" powers, therefore, because they are incidental or
instrumental to the exercise of the enumerated powers.
By contrast, the unspecified powers to which the Government Powers
Provision refers are vested in the first instance in the Government of the
United
States, and they are not necessarily subordinate to the other enumerated
powers of Article I, Section 8.
It seems clear, furthermore, that they can NOT be subordinate to these
powers, for at least two reasons.
First, if these powers were subordinate to the enumerated powers, they
already would be encompassed by the Foregoing Powers Provision.
Thus, the Government Powers Provision would be redundant, and Grice’s
conversational maxims flowing from the cooperative principle and his
desiderata
of candour, clarify, benevolence and self-lve would be violated again.
Second, the language of the third provision of the Necessary and Proper
Clause—the Department or Officer Powers Provision—evidently presupposes a
background principle, according to which the legislative, executive, and
judicial departments of the Government of the United States are components of
that government, rather than the other way around.
If so, then it follows that the two sets of powers given by the Necessary
and Proper Clause examined thus far—one, the set of relationally
subordinate legislative powers given by the Foregoing Powers Provision, and the
other, the set of relationally super-ordinate government powers presupposed by
the Government Powers Provision —not only cannot be coextensive.
These sets of powers also must be mutually exclusive.
All this seems complicated, but in fact, the semantic complexity of the
Necessary and Proper Clause is just beginning to unfold.
The Department or Officers Powers Provision also refers to a set of
instrumental powers; namely, those powers "which shall be necessary and proper
for carrying into execution" whatever "other powers" are vested by the
Constitution "in any Department or Officer [of the United States]."
On the most natural and plausible Griceian and Hartian reading of this
provision, these "other powers" include all of the EXECUTIVE powers delegated
in Article II, all of the JUDICIAL powers delegated in Article III, and—
since Congress itself is a “Department” of the U.S. Government—all of the
LEGISLATIVE powers delegated outside of Article I, Section 8, such as the
power to create inferior tribunals (Article III), the power to dispose of
property belonging to the United States (Article IV), and the power to admit
new
states (also Article IV).
Likewise, the "other powers" encompassed by the Department or Office
Powers Provision presumably also encompass all of the shared powers given to
more than one departments or officers of the government, such as the Treaty
and Appointment powers of Article II, which are jointly delegated to the
President and the Senate.
The instrumental powers to which the Department or Office Powers Provision
refers gives Congress the authority to carry these other powers into
effect by necessary and proper means.
Finally, the Government Powers Provision also refers to a set of
instrumental powers—namely, those powers "necessary and proper for carrying
into
execution” the unspecified “other powers" presupposed by that provision.
Like the instrumental powers assigned by the Foregoing Powers Provision
and Department or Office Powers Provision, these instrumental powers are
vested directly in Congress and are subordinate to the "other powers vested by
this Constitution in the Government of the United States."
The underlying semantic structure of the Necessary and Proper Clause points
to the existence of no fewer than SIX different powers or sets of powers.
Four of these sets are vested directly in Congress, three of which are
relationally subordinate and introduced by the first sentence of Article I,
Section 8.
The fourth is relationally super-ordinate: namely, the "foregoing" powers
presupposed by the Foregoing Powers Provision.
The last two sets of powers to which the full Necessary and Proper Clause
refers are:
(1) the set of "other powers" vested in the Government of the United
States; and
(2) the set of "other powers" vested in any Department or Officer of the
United States.
Each of these sets is relationally super-ordinate to the powers given to
Congress to carry these "other powers" into effect.
Once again, these two sets cannot be equivalent, however, unless one of
them is redundant, _contra_ Grice (if not Hart).
In sum, by inserting all of the foregoing properties and qualifications
into the text, the entire scheme of powers presupposed by the Necessary and
Proper Clause can be given as follows:
Foregoing Powers Provision: "Congress shall have the [unspecified,
instrumental] Power … To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing [specified, enumerated] Powers."
Government Powers Provision: "Congress shall have the [unspecified,
instrumental] Power to make all LAWS which shall be necessary and proper for
carrying into Execution … all other [unspecified, implied] Powers vested by
this Constitution in the Government of the United States".
Department or Officer Powers Provision: "Congress shall have the
[unspecified, instrumental] Power to make all LAWS which shall be necessary and
proper for carrying into Execution, all other [unspecified, express or implied]
Powers vested by this Constitution in any Department or Officer [of the
United States]"
The key element of this scheme—the one which probably meant the most to
Wilson, Gouverneur Morris, Alexander Hamilton, and the other leading
nationalists at the constitutional convention, and which probably caused the
greatest concern to Mason, Randolph, and Gerry—is the set of "other powers
vested
by this Constitution in the Government of the United States," to which the
Government Powers Provision refers.
The Constitution never vests power expressly to "the Government of the
United States" as a single unified entity.
"The Constitution never grants power to the ‘national government’ or the ‘
federal government’ as an undifferentiated entity, but instead grants
various aspects of governmental power to discrete actors".
"The Constitution nowhere grants power to ‘the federal government’ as a
unitary entity." It is an implied power to promote the general welfare.
How exactly is this argument supposed to go?
STEP 1: The Necessary and Proper Clause implies that the Constitution
vests powers in the Government of the United States that are not coextensive
with the powers it vests in its Departments or Officers.
STEP 2: The United States of America is a LEGAL corporation.
STEP 3: A corporation is vested with the implied power to fulfill its
purposes.
STEP 4. The purposes of the United States include promoting the general
welfare.
STEP 5. The Constitution vests the Government of the United States with
the implied power to promote the general welfare (from Steps 1, 2, 3, and 4)
STEP 6. The Necessary and Proper Clause gives Congress the authority to
make all LAWS which are necessary and proper for carrying into execution the
powers vested by the Constitution in the Government of the United States.
STEP 7. The Constitution authorizes Congress to carry into effect the
implied power of the United States to promote the general welfare (from Steps
5
and 6).
The first step has an implication. The implication to which it refers may
seem like an entailment, but in fact it seems more accurately classified as
a Griceian implicature, defeasible alla Hart.
The framers could, in principle, have added a rider to the Necessary and
Proper Clause that states, "However, there are no powers vested by this
Constitution in the Government of the United States that are not delegated to
one or more of its Departments or Officers." This statement does not
generate a contradiction. Instead, it merely implies that a particular
definite
description in the Constitution picks out a null set. The language would be a
roundabout and uncooperative piece of draftsmanship, but it does not quite
amount to affirming p and ~p.
The second step, that the United States is "a legal corporation", appears
to have been embraced by an unbroken string of authorities.
The same is true of the third step, which in many respects is the core
principle of the argument.
The remaining steps are relatively simple and straightforward: the fourth
step is a direct inference from the Preamble; the fifth step follows from
the first four premises; the sixth step is merely a paraphrase of the
Government Powers Provision of the Necessary and Proper Clause, and the last
seventh step follows directly from steps five and six.
As indicated, the third step is in many respects the heart of the
argument.
Madison is often called "the father of the American constitution," but
this label is in many respects more myth than reality.
In fact, Madison had less to do with the precise (Griceian, Hartian)
language of the constitution than is commonly believed.
The best reading of the available evidence suggests that the two principal
draftsmen of the Constitution were James Wilson and Gouvernuer Morris.
Both conceived of the United States of America as a legal corporation, and
were strongly committed to vesting the government of the United States
with implied national powers. They clearly understood how the objects clause
and sweeping clause of a corporate charter could work in tandem to vest the
corporation with the implied power to fulfill its purposes.
Wilson was largely responsible for drafting the necessary and proper
clause, and both men were responsible for the preamble.
There must be a Griceian-Hartian moral there, somewhere, or _two_.
Cheers,
Speranza
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