Despite the fact that the constitutionality of anti-commandeering has been reaffirmed by both the Founding Fathers and by the Supreme Court, some people just don’t want to let it go.

In a recent blog post, nonoriginalist Michael Dorf claims that because Congress had the power to commandeer under the Articles of Confederation, it still does under the current Constitution because nothing in the document states otherwise.

Rightly finding it odd that a nonoriginalist would argue in favor of a form originalism on a specific topic, Randy Barnett at the Washington Post replies to Dorf in a Tweet on the original scope of Congress’ powers, saying that if Congress only carried out its original powers then anti-commandeering wouldn’t be necessary.

In his reply Tweet, Dorf tried to avoid the question, but Barnett didn’t let up. If originalism should be used when interpreting the Constitution on anti-commandeering, he said, it has to be applied to the rest of the text.

In a follow-up post justifying his position, Dorf argues that what the founders originally meant when they wrote the Constitution is useful, but not the final arbiter in how to interpret it today.

Barnett misunderstands what I was saying. Originalists think that the meaning of any provision of the Constitution simply is the original understanding. Nonoriginalists like me mostly think that the original understanding is an important starting point in construing the constitutional text, but not necessarily the end point. In the anti-commandeering cases, the majority (authored by Justice O’Connor in New York v. United States and by Justice Scalia in Printz v. United States) offered a historical, i.e., originalist argument for the anti-commandeering principle. Accordingly, the dissenters–who offered the counterargument that begins with the Articles of Confederation–were responding that the originalist argument for the anti-commandeering principle fails on its own terms. Neither they nor I said or assumed that one must always be bound by the original understanding, regardless of intervening changes in the world. Thus, my discussion of the transition from the Articles of Confederation did not commit me to originalism in all matters relating to federalism or anything else (emphasis added).

The inconsistency is not lost on Barnett, who wrote:

A more completely accurate statement of his position would be “Thus, my discussion of the transition from the Articles of Confederation did not commit me to originalism anything at all in all matters relating to federalism or anything else.

As Barnett points out, Dorf’s argument essentially is this: That the document’s meaning is completely dependent on the circumstances at the time in which it is being interpreted. Or, put more frankly, originalism or nonoriginalism should be used depending on what the person wants the text to mean. Dorf reveals this when he writes “I’ll begin by saying that I don’t like the anti-commandeering doctrine in any context.”

While Barnett’s main point concerns consistency in one’s argument (he has no specific position on anti-commandeering) left unmentioned is the historical inaccuracy in Dorf’s argument concerning the purpose of the Constitution.

Congress had the power to “commandeer” under the Articles of Confederation; nothing in the Constitution expressly forbids that means to Congress; In general the Constitution gave Congress more, not fewer, powers than Congress enjoyed under the Articles; and therefore, in my view if Congress is regulating in the area of one of its enumerated powers, then measures that commandeer the states are (absent some other problem) necessary and proper to the exercise of that power (emphasis added).

The fact that Congress gained more powers under the Constitution is both true and irrelevant; they were gained because they were part of a set of enumerated and delegated powers. Dorf’s argument completely reverses the meaning of the document by claiming that Congress can do something unless expressly forbidden in the Constitution. This is opposite of the Constitution as described by James Madison in Federalist #45, in which the federal government’s powers were to be “few and defined.”

But it’s even worse than that. Madison wrote in Federalist #46 that the states and the federal government were separate entities, and if the federal government passed a law undesired in a state where the people in particular disliked it, they could resist by not helping federal officers enforce that law.

….should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter (emphasis added).

Then, of course, there is the Tenth Amendment itself: 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.

With this historical context in mind, it’s not hard to see why the Supreme Court has held in favor of anti-commandeering for over 170 years.

In Prigg v. Pennsylvania (1842), Justice Joseph Story held that the federal government could not force states to implement or carry out the Fugitive Slave Act of 1793.

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution (emphasis added).

If anti-commandeering is not “permitted” by the Constitution, as Dorf suggests, then the abolitionist states that refused to cooperate with federal officers in hunting down fugitive slaves could have been compelled to aid in the search.

Thankfully, the Supreme Court did not see it that way, and this view has not changed.

In Independent Business v. Sebelius (2012), the Court held that the federal government could not compel states to expand Medicaid by threatening to withhold funding for Medicaid programs already in place.

Justice O’Connor wrote:

Congress may not simply ‘conscript state [agencies] into the national bureaucratic army,’ and that is what it is attempting to do with the Medicaid expansion.

The point, of course, isn’t that anti-commandeering is constitutional because the Supreme Court said so. Often, the court has ruled in error. But their consistent position on this reflects what all pertinent historical documents conveyed on the subject.

Common sense also dictates that had the Constitution actually given the federal government the authority to coerce the states into enforcing federal laws, Madison would have had to not only clarify this in Federalist #46 after describing state refusal to cooperate with officers of the Union, but articulate how such authority wouldn’t lead to the destruction of the states as individual entities. The issue no doubt would have been brought up by anti-federalist detractors at the state ratifying conventions, where federalists would have had to provide further defense of this power.

Instead, as Tom Woods has pointed out, federalist at the Virginia ratifying convention in 1788 told Virginians the opposite; that they would be “exonerated” if the federal government tried to force “any supplementary condition” upon them.

Whether one likes anti-commandering, it is constitutional. It is invaluable to maintaining the independence of state governments. It is also effective in thwarting the will of the federal government when it attempts to enforce unpopular laws, as we see today with state laws decriminalizing marijuana in defiance of the federal War on Drugs.

TJ Martinell

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