When the justices of the Supreme Court start preparing their
decision in the challenge to Obamacare, they may yet have to get to
the bottom of the question of whether James Madison’s notes on the
Constitutional Convention of 1787 were forged. Could it be that the
Founders really favored more central government than was indicated
by the Constitutional Convention’s most famous note-taker?
On the face of it, the idea that Madison doctored his notes
seems preposterous. Madison, after all, is not only America’s
fourth president but is known as the “Father of the Constitution.”
The notes he took during the debates in which the Constitution was
framed at Philadelphia have for nearly two centuries been consulted
by scholars and judges for clues as to what the Founders really
intended when they wrote the preeminent parchment.
It turns out, though, that there is a theory that Madison in
fact forged his notes—or doctored the details—so as to buttress his
growing concern in his retirement years over the expansion of
federal power. The famous notes weren’t published until after
Madison died, nearly 50 years after they were written. As
published, the notes favor a more limited interpretation of
congressional power than advocates of Obamacare might like. So
judges who support Obamacare might be intrigued by the theory that
the notes were doctored.
The man who came up with this theory, or at least made the most
of it, was a legendary law professor, William Winslow Crosskey of
the University of Chicago. Crosskey’s theory was sketched in his
magnum opus, Politics and the Constitution in the History of
the United States. The book—it’s in three volumes—argues that
the Founders meant to grant the Congress almost unlimited power to
build and regulate a national economy. The clauses Crosskey focuses
on are none other than the same clauses on taxes, the general
welfare, and commerce that are at the center of the Obamacare
lawsuit.
Crosskey fixed on what would become his life’s work in 1937, in
the wake of the Supreme Court case that more or less stopped a
centerpiece of the New Deal in its tracks. That was the ruling in
1935 known as Schecter Poultry Corp. v. United States, in
which a family of chicken wholesalers in Brooklyn, New York,
challenged the right of President Franklin Delano Roosevelt’s
National Recovery Administration to enter their shop and arrest
them for violating the rules of the New Deal.
FDR claimed Congress had the power to establish the NRA under
the Constitution’s commerce clause, which says that Congress shall
have the power to “regulate Commerce with foreign Nations, and
among the several States, and with the Indian tribes.” The Supreme
Court rejected that argument—unanimously. It said that Congress
couldn’t delegate rule-making to the NRA and that it couldn’t use
the commerce clause to go after the Schecters and their
chickens.
After the decision was handed down, Justice Brandeis is said, by
several accounts, to have summoned FDR’s aide, Thomas “Tommy the
Cork” Corcoran, into the justices’ robing room and told him: “This
is the end of this business of centralization, and I want you to go
back and tell the President that we’re not going to let this
government centralize everything. It’s come to an end.” Roosevelt
was so annoyed that he began his attempt to pack the Supreme
Court.
THIS IS THE CONTEXT in which Crosskey began his study, though he
was originally animated by the Securities and Exchange Act of 1934.
When his opus was published in 1953, began with the assertion the
“power to regulate commerce” was the “most important of the
particular non-military powers of the Congress.” Crosskey devotes
something like 200 pages of his book just to parsing how the terms
“Commerce,” “State,” and “Among” were used in the 18th century. He
perused newspapers, correspondence, and other writings, both in
America and Britain. He concluded that the term Commerce was used
at the time of the Constitution’s writing “to mean the whole
economy, the whole system of exchange, the whole congeries of
interrelated gainful activities, which the American nation is to
carry on.”
Commerce, Crosskey reckoned, encompassed “all branches of
gainful activity,” including “both the performance of labor and the
giving of all forms of recompense for labor, whether wages or
something else.” Moreover, he argues that the founders meant “among
the several States” to cover all economic activity, whether it
crossed state lines or not. “The Americans of 1787,” Crosskey
wrote, “used, and understood, the words of the Commerce Clause as
covering all the ‘Commerce’ to which the people of the United
States had access.”
Why, if one is in Crosskey’s camp, it would seem entirely
natural that Congress could require someone to buy health insurance
whether he wanted to or not.
Crosskey suggested that Madison had to resort to subterfuge to
support a more limited view of federal power over economic
activity. On several crucial issues of constitutional
interpretation, Crosskey argues, Madison “presented falsely the
sentiments of other men…?in his famous notes,” distorting the
record in several places. Crosskey reckons this had to do with,
among other things, Madison’s instinct to protect the interests of
the slaveholding South. Crosskey explains that Madison, a
Virginian, “was as conscious as any Southerner that the national
power of regulating commerce had somehow to be made safe for the
South’s ‘peculiar institution.’”
THERE’S NOT DOUBT that Madison flinched over slavery, failing—in
contrast to, say, Washington—to use even the approach of his own
death to free the slaves that he owned. But there is doubt that
Madison’s notes were corrupted in the way Crosskey alleges. The
zeal with which Crosskey went after Madison seemed to the reviewers
of his book at the time to be slightly unhinged. The Columbia
Law Review called it “one of the strangest combinations of
fact and fancy ever put before the public.”
The author of the review, Irving Brandt, himself a biographer of
Madison, quotes Crosskey as suggesting there were certain “spurious
passages” in Madison’s notes designed to support Madison’s later
view that the Commerce Clause was intended for merely negative
rather than positive regulation of internal trade. If the charge
were true, Brandt asserted:
Madison would be rated as one of the most accomplished forgers
in the world’s history. His notes of the debates, preserved in
manuscript form in the Library of Congress, are written on folded
sheets of four small pages each, bound together. The notes on the
Imports and Exports clause cover the brief utterances of fourteen
men and run through several pages. To falsify the record it would
have been necessary for Madison either to—1) Foresee in 1787 the
issues raised in 1819 by the Missouri Compromise, and forestall
them by misquoting a dozen men in his original notes, or 2) Replace
four pages of the original manuscript with fictitious notes written
after 1819 on a blank sheet of paper with the same watermark as
that used in 1787 and duplicate at about the age of 70 a youthful
handwriting which has disappeared from all of his other
writings.
Well, I say, let the Supreme Court go at it. What side will it
take? The side of the Madison of his Notes—that is, a Madison who
took an extremely punctilious view of the Constitution limited the
legislature to the list of powers enumerated and written down by
the Founders, a view that casts doubt on the notion that the
Commerce clause was intended to give the Congress the power to
force someone to buy health insurance whether he wanted to or not?
Or will it adopt W. W. Crosskey’s Madison, a scheming forger
determined to mislead future generations into supposing the
Founders were opposed to the very federal system they were
establishing, and instead vest in the Congress general, plenary
powers to do whatever it wanted in pursuit of a national
government?
