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?