Amicus Curiae Brief — Rapanos v. United States

xil

TABLE OF AUTHORITIES - Continued

Page

Sherman, Roger, The Report of Connecticut's

Delegates to the Constitutional Convention (Sept.

26, 1787), in 13 DOCUMENTARY HISTORY 471............+.++ 11

Stiles, Ezra, Diary (Dec. 21, 1787), in 3 FARRAND’S

BIND Tilt cccoticenecimecencsttscciinnstanincaieanianinnninnatetiin 14

Thomson, Charles, Letter John Dickinson (Dec. 25,

1780), in 16 LETTERS OF THE DELEGATES 492.........-.-.000+5 9

Tuberville, George Lee, Letter to Arthur Lee (Oct.

28, 1787), in 13 DOCUMENTARY History 505, 506......... 19

Votes in the Federal Convention July 17, 1787, in 2

PARARIS RECORD BH nese heccesccecescsssseccceveseccsesesessessoeees 13

Washington, George, Diary (July 27, 1787), in 3

FARRAND’S RECORDS 66............:cseeccessscessreccssorsessnsscseesesees 5

Webb, Samuel, Letter to Joseph Barrell (April 27,

1788) in 17 DOCUMENTARY HISTORY 103.............::e000ee00 14

Williams, John, Debate in the New York Ratification

Convention (June 26, 1787), in 2 ELLIoT’s DE-

Williamson, Hugh, Speech at Edenton, North

Carolina (Nov. 8, 1787) reprinted in 2 Debate on

i IS Fi cossenstbcuidndscduntannncadieciaiiaearecieamnineiae 10

Williamson, Hugh, Letter to James Iredell (July 22,

1787), in 3 FARRAND’S RECORDS 61.............cssseesseeeeeerernees 5

Wilson, James, Speech at the Federal Convention,

July 14, 1787, in 2 FARRAND’S RECORDS 10............00++++ 11

Wilson, James, Speech to Public Meeting in Phila-

delphia (Oct. 6, 1787), in 13 DOCUMENTARY HIs-

TABLE OF AUTHORITIES -— Continued

Page

Wilson, James, Speech to the Pennsylvania Ratifi-

cation Convention (Nov. 26, 1787), in 2 ELLIOT’S

BUI ATID. sar ccaisincimeetntinaibedbans dedeasieinibengmianpaminntes 16

Wolcott, Oliver, Letter to Matthew Griswold, Jan.

22, 1783, 18 LETTERS OF DELEGATES at 601 ..............0000+0 6

COMMENTARY

Abel, Albert, The Commerce Clause in the Constitu-

tional Convention and in Contemporary Com-

ment, 25 MINN. L. REV. 470, 481 (1941)..............ccc0ceeeee 29

ACKERMAN, BRUCE, THE FAILURE OF THE FOUNDING

EE Serpe arene 22

Editorial Note, 17 DOCUMENTARY History at 101,

FESO aL I re ere™ ION POOLS eee a 14

Levy, Leonard, Ratifying Intent, ENCYCLOPEDIA OF

THE CONSTITUTION: SUPPLEMENT 40 (1991).............020++ 20

Lofgren, Charles A., The Origins of the Tenth

Amendment, in CONSTITUTIONAL GOVERNMENT IN

AMERICA 331 (Ronald Collins, ed. 1980) ....................00 22

JOHNSON, CALVIN, RIGHTEOUS ANGER AT THE

WICKED STATES: THE MEANING OF THE FOUNDERS’

STE TTET ATES ATAPI RTO 1,11

Johnson, Calvin, The Panda’s Thumb: The Modest

and Mercantilist Original Meaning of the Com-

merce Clause, 13 WM & MARY BILL OF RIGHTS

Kaminski, John, New York: The Reluctant Pillar, in

THE RELUCTANT PILLAR: NEW YORK AND THE

ADOPTION OF THE FEDERAL CONSTITUTION 72

(Stephen L. Sehechter ed., 1985).................:sccccseeeeeeseees 14

xiv

TABLE OF AUTHORITIES — Continued

Page

LATIN WORDS AND PHRASES FOR LAWYERS (B.S.

, ISTE PNET ARES er tanner einer 18

Rowe, Gary, The Sound of Silence, 101 YALE L. J.

a ID cc stniicinsiissinsiniiansiibisissetnsinntihinaniiielisiiaintantesile 22

SINGER, NORMAN J., 2A SUTHERLAND STATUTORY

CONSTRUCTION § 47.17, AT 188-200 (5TH ED. 1992)....... 12

Skinner, Quentin, Meaning and Understanding the

History of Ideas in MEANING AND UNDERSTAND-

ING: QUENTIN SKINNER AND Critics 3, 55-65,

260 (James Tully, ed., 1968) ............ssscccccssscessrcorsssssescees 26

STORY, JOSEPH, 1 CONSTITUTIONAL COMMENTARY

I ai ala re 20

STORY, JOSEPH, COMMENTARIES ON THE CONSTITUTION

OF THE UNITED STATES §§ 908, 910, 911 (1833)................ 24

1

INTEREST OF AMICUS CURIAE

Calvin Johnson is a law professor at the University of

Texas School of Law with an academic interest in the

outcome of this case.’ His resume and list of publications

can be found at http://www.utexas.edu/law/faculty/cvs/

chj7107_cv.pdf. He has written RIGHTEOUS ANGER AT THE

WICKED STATES: THE MEANING OF THE FOUNDERS’ CONSTI-

TUTION (Cambridge University 2005), which is a history of

the Constitution in terms of what the Founders intended

to accomplish. He offers this brief as amicus curiae in

order to help preserve the wetlands of America and keep

clean water for the future of America. He has no financial

stake in the outcome of this case.

The attached amicus curiae brief supports the respon-

dent, U.S. Army Corps of Engineers and respondent,

United States. This brief is filed by consent of the parties.

Petitioners, June Carabell and John Rapanos have filed

blanket consents to amici briefs with the court.’ By letter

of December 19, 2005 to me, the Solicitor General con-

sented to this brief on behalf of respondents.

SUMMARY OF ARGUMENT

Those who use originalism as a means to restrain the

federal government should understand that original intent

of the Constitution was to create a powerful national

government able to reign over and rein in the states. There

is almost no states rights in the original Constitution: the

* Pursuant to Rule 37.6, I affirm that this brief was authored in

full by named counsel and no one but named counsel has made a

monetary contribution to the preparation or submission of the brief,

except that I will apply for reimbursement of costs from funds of my

employer law school dedicated to support of my academic writing

without regard to content. My colleague, Laycock, made

helpful comments to the brief. The views of this brief are my personal

conclusions and cannot be attributed to my reviewer or to my employer,

University of Texas.

* http//www.supremecourtus.gov/docket/04-1034.htm; http//www.

supremecourtus.gov/docket/04-1384.htm.

2

anti-national interpretations became established only

after Jefferson’s election in what he rightfully called the

Revulution of 1800. A return to a purified understanding of

the original Constitution would be unkind to Anti-

Federalism.

Congress is constitutionally empowered to protect

wetlands and clean water under the power given to pro-

vide for the general welfare, as determined by sovereign

Congress by vote of its elected officials through the politi-

cal process. The frontiers of federal power are not here

determined by the power to regulate commerce.

Article I, section 8, clause 1 of the Constitution gives

the federal government the power to provide for “the

common Defence and general Welfare” and clause 18, the

necessaiy and proper clause, then allows Congress to

provide for the general welfare by regulation or other

means. The wording is a fair rendering of the binding

Resolution of the constitutional convention, using the

phrase “common Defence and general Welfare,” brought

over from the Articles of Confederation in order to main-

tain continuity. The binding Resolution provided that

Congress would have all of the powers it had under the

Articles of Confederation, plus the power to “legislate for

the common interests of the Union.” Whether a power is

within the general welfare is determined by Congress, and

by the political competition between Congress and the

states for loyalty of the people. Congress ky enactment of

the Clean Water Act has determined that the protection of

wetlands and clean water is for the general welfare.

The powers listed in clauses 2 through 17 of Article I,

section 8 are illustrative rather than exhaustive. The

Framers deleted the limitation found in Article II of the

Articles of Confederation, which provided that Congress

could have only the powers expressly delegated to it,

because the limitation had proved “destructive to the

Union” and even the passport system had been challenged.

The federal peacetime passport is not an enumerated

power, nor strictly necessary to any enumerated power,

but it is within the federal power because it is for the

3

common defense or general welfare. The Convention and

the Congress defeated several attempts to limit Congress

to expressly enumerated powers. Section 8 lists activities

that Congress can undertake for the common defense and

general welfare, but the list is not exhaustive.

“Regulation of commerce” in clause 3 of section 8 was

written to allow a series of mercantilist programs to

restrict imports via deep water shipping, to give monopoly

franchise to domestic shippers and to punish foreign

shippers. The real original meaning of “regulation of

commerce” is not strictly speaking helpful to any problem

in the 21st Century.

ARGUMENT

I. Congress is empowered to protect

wetlands and water by power to

provide for the general welfare

_ The Constitution as written gives the federal govern-

ment the power to provide for the common defense and

general welfare by regulation or other means. Article I,

section 8 clause 1, the tax clause, gives Congress the

power to provide for the common defense and general

welfare by taxation. Clause 18 then gives the Congress the

power to enact any legislation necessary and proper to the

accomplishment of the common defense and general

welfare. “Common defense and general welfare” is the

general standard describing the appropriate national

sphere and the powers listed in clauses 1-17 of section 8

are illustrative, not exhaustive of the federal powers.

Reading the Constitution to give Congress the powers

over the general welfare is consistent with our national

values. We need, for example, to have the federal govern-

ment with national powers when we face a nationwide

epidemic of bird flu, or Ebola or some even worse new

disease. We need to rein in pollution on the national level,

in those cases in which states or localities decide to pollute

their neighbors for self-serving reasons. Some decisions

get worse when they are balkanized because balkanization

4

separates the beneficiaries and bearers of any cost. We

should not need to find that either bird flu or pollution is

some kind of “commerce.” “Common Defence and general

Welfare” explains the scope of the federal government that

our values in fact endorse.

A. Original Intent of the Written Constitution

An accurate understanding of the original intent of

the Constitution does not confine the federal government

within a narrow corral. Congress has the sweeping power

to provide for the general welfare and common defense.

1. The Constitutional language “to provide

for the general welfare” is synonymous

with the binding Resolution allowing

Congress to legislate in all cases for the

general interest

The language of the Constitution, giving authority to

provide for the general welfare, was written to be a syno-

nym for the binding Resolution adopted by the Philadel-

phia Constitutional Convention of 1787. The binding

Resolution of the Convention included a motion offered by

Gunning Bedford of Delaware on July 17, 1787 to allow

Congress further “to legislate in all Cases for the general

Interests of the Union.” The full scope of the federal power

in the Resolution, as augmented by the Bedford’s motion,

was that

“the Legislature of the United States ought to

possess the legislative Rights vested in Congress

by the Confederation; and moreover to legislate in

all Cases for the general Interests of the Union,

and also in those Cases to which the States are

separately incompetent, or in which the Harmony

* Gunning Bedford, Motion of July 17, 1787, 2 FARRAND’S RECORDS

26 (emphasis added).

of the United States may be interrupted by the

Exercise of individual Legislation Resolution.”

The language of the Constitution was drafted by a

series of committees, which were instructed to draft

language “conformable to the Resolutions passed by the

Convention.” The drafting committees were not to effect

policy, Washington wrote, but to “arrange, and draw into

method & form the several matters which had been agreed

to by the Convention.” The role of the drafting committees

was simply to ensure that the Constitution was “properly

dressed.” The first drafting committee was called the

“Committee of Detail,” denominating that its authorization

was confined to details. The final drafting committee was

called the “Committee on Style” denominating that it could

not get into substance. The drafting committees were loyal

to their mandate to dress the binding resolutions for the

public, as indicated for instance by the fact that there were

no whelps, no barking dog, and no protests that the

drafting committees had breached their scriveners’ duties.

The Committee on Detail, the first of the drafting

committees, used the Articles of Confederation as a model,

but deleted the “expressly delegated” limitation on Con-

gress’ powers. Article II of the Articles of Confederation

had provided that the Congress would have only those

powers expressly delegated to it. The committee took out

the limitation. As Governor Edmund Randolph (Va.)

explained to the Virginia Ratification Convention, the

expressly delegated limitation had proved “destructive to

the Union” and that even the passport system had been

* Convention Resolutions Presented to the Committee of Detail

(July 23, 1787), in 2 FARRAND’s RECORDS 131-32 (emphasis added).

* July 24, 1787, in 2 FARRAND’s RECORDS 106.

* George Washington, Diary (July 27, 1787), in 3 FARRAND'S

REecorps 65.

" Letter from Hugh Williamson to James Iredell (July 22, 1787), in

3 FARRAND’s RecorpDs 61.

challenged.’ Randolph’s statement has a special weight

because it was a declaration against interest and was not

the kind of the understatement spin on the Constitution’s

impact that the Federalists sometimes used to secure

ratification. Randolph had also been on the five-man

Committee on Detail that took out the expressly delegated

li it ti 9

There had been a then recent controversy over the

federal passport. In 1783 Pennsylvanians acting under

state law authorizing captures seized the British ship

Amazon that was carrying food and clothing for Hessian

case.” Federal law was supreme. The Framers intended to

* Edmund Randolph, Debate in the Virginia Ratification Conven-

tion (June 24, 1788), in 3 EL.ior’s DesaTEs 600-601.

* See 2 FARRAND’S RECORDS 97 (Randolph on five man Committee

on Detail).

” See, e.g., Letter of Oliver Wolcott to Matthew Griswold, Jan. 22,

1783, 18 LETTERS OF DELEGATES at 601 (saying that if Pennsylvania law

allows such an atrocious violation of the principles of the confederation,

no one would trust the passport); John Dickinson, Report to the

Pennsylvania General Assembly (Jan. 20, 1783), in MINUTES OF THE

First Session oF THE SEVENTH GENERAL ASSEMBLY OF THE COMMON-

WEALTH OF PENNSYLVANIA 783 (reporting the conflict between the

7

ratify that solution. The peacetime passport is not a power

enumerated in section 8 nor necessary to any enumerated

power, but section 8 gives Congress that power by implica-

tion. The deletion of “expressly delegated” accomplishes

and the general power to provide for the common defense

and general welfare accomplishes that result.

The phrase “to provide for the common Defence and

general Welfare” in section 8 comes from Article VIII of the

New Jersey, after the rest of the enumerated powers

what became clause 2-18 was already in place.” The

phrase took the place of the term, “necessities of the

Union,” in Randolph’s first draft presented to the Commit-

tee of Detail.” “General welfare” is also a synonym for

exigencies of the Union from the Annapolis Convention

resolution that had empowered the Federa] Convention.”

Moreover, the Confederation Congress had empowered the

Convention to propose such changes as would render the

federal government “adequate to the exigencies of Govern-

ment and the preservation of the Union.”“ The constitu-

tional language, “to provide for the common Defence and

general Welfare” is also a synonym for the binding Bedford

Resolution that Congress would have the power “to legis-

late in all cases for the general interests of the Union.” Use

of the phrase “common defense and general welfare” from

ee eee oe

because it maintained a continuity

with the Articles of Confederation. Continuity chowed that

the Framers were building onto the existing federal-level

had settled the business by deciding that Pennsylvania law was

unconstitutional insofar as it interfered with passports).

" (Sept. 4, 1787) 2 FARRAND’s RecorDs 497.

* 2 FARRAND’S RECORDS 142 (emphasis added).

“ Report of the Commissioners assembled at Annapolis Conven-

tion, 31 JCC 680 (Sept. 20, 1786).

* Resolution of Congress, 32 JCC 74 (Feb. 21, 1787).

government. They were not so radical as to tear out the

existing fabric of government.

2. No distinction was allowed between tax

and regulation.

The great goal “to provide for the common defense and

general welfare” is stated within clause one of section 8,

commonly called the tax and spend clause, but in the

writing and in the original intent, accomplishment of the

great goal is not limited to the instrumentalities of tax and

spending. Once taxation is allowed for the common de-

fense and general welfare, then the sweeping eighteenth

clause allows Congress to enact “all Laws necessary and

proper” to the “common Defence and general Welfare.”

“Let the end be . . . within the scope of the constitution, and

all means which are appropriate, which are plainly adapted

to that end, which are not prohibited, but consistent with

the letter and spirit of the constitution, are constitutional.”

Once it is granted that taxation is allowed for the general

welfare, pursuit of the general welfare by any other instru-

ments follows as a matter of course.”

The Founders would not have denied regulation to the

federal government once taxation was allowed. Regulation

was considered a lesser-included power that the federal

government would exercise once it commanded the para-

mount power of taxation. If the people will trust the

* US. Const. art. I, § 8, d. 1 & 18.

“ McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819)

(Marshall, C.J.).

" In 1830 Madison feared that the necessary and proper clause

would transform the taxation clause into a justification for achieving

the common defense and general welfare by any instrument. James

Madison, Memorandum not used in the letter of November 27, 1830, to

Andrew Stevenson, in 2 THE FOUNDERS’ CONSTITUTION 456, 458.

Madison dreaded that interpretation, but he could see no viable

general welfare. The interpretation that Madison dreaded in 1830 is in

fact faithful to the text, to our values, and to our practices.

Congress on matters of money and revenue, Roger

Sherman told the Convention, “they will trust [it] with any

other necessary powers.”"” James Monroe wrote in the

period before the Convention that the federal government

should of course have the power to regulate commerce, but

that the federal government should not get the revenue

from the taxes on commerce unless the states specifically

ceded that revenue.” From the Anti-Federalist side, —

taxation was the feared power of government, and “regula-

tion” would be swept into the federal power if taxation

were allowed. If Congress were granted the paramount

power to tax, Anti-Federalist “Brutus” wrote, Congress

would draw all other powers after it.” The “celebrated

Montesquieu establishes it as a maxim,” Centinel said,

“that legislation necessarily follows the power of taxa-

tion.™ Anti-Federalists also said that the “common De-

fence and general Welfare” language of clause 1 of section

8 allowed the federal | to “pass any law which

they may think and to have “power co-extensive

with every possible object of human legislation.”” The “line

of distinction between the power of regulating trade and

“ Roger Sherman, Speech to the Federal Convention (June 20,

1787), in 1 FARRAND’S RECORDS 342.

*” Letter of James Monroe to Thomas Jefferson (Dec. 14, 1784), 22

LETTERS OF THE DELEGATES 72 (saying that Congress will distinguish

between taxation and regulation of commerce, “the former unless ceded

by the State te go to the State”); see also Letter_of Charles Thomson

(Pennsylvania) to John Dickinson (Dec. 25, 1780), 16 LETTERS OF THE

DELEGATES 492 (disapproving of taxes for revenue, but approving of

taxes “on foreign articles of luxury which we can well do without” as a

“regulation of trade”).

* Brutus I, New York J. (Oct. 18, 1787), reprinted in 13 DoCUMEN-

TARY History 415.

™ Centinel (Samuel Bryan] I, PHILADELPHIA INDEPENDENT GAZETTEER

(Oct. 5, 1787), reprinted in 1 THE DEBATE ON THE CONSTITUTION 53, 57.

* John Williams, Debate in the New York Ratification Convention

(June 26, 1787), in 2 ELLIoT’s DEBATES 330; see also id. at 338.

* Letter from Richard Henry Lee to Gov. Edmund Randolph,

PETERSBURG VIRGINIA GAZETTE (Dec. 6, 1787), reprinted in 14 Docu-

MENTARY History 368.

10

that of drawing revenue from it” Madison explained to

Jefferson, “was found on fair discussion, to be absolutely

undefinable.™

The debaters also commonly switched the words as if

“regulation” and “taxation” were near synonyms.” Taxa-

tion was sometimes a power within the power to regulate”

and regulation was sometimes a subset of the power to

™ Letter from James Madison to Thomas Jefferson (Oct. 24, 1787),

in 10 MADISON Papers 211.

* Nathaniel Gorham, Speech before the Federal Convention (July

23, 1787), in 2 FARRAND’S RECORDS 90 (calling New York state's tax on

imports through New York harbor a “regulation of her trade”); THE

FEDERALIST No. 7, at 40 (Hamilton) (Nov. 17, 1787) (calling state taxes

on imports “opportunities, which some States would have of rendering

others tributary to them, by commercial regulations.”), THE FEDERALIST

No. 12, at 78 (Hamilton) (Nov. 27, 1787) (espoused a federal tax on

“ardent spirits,” and calling it a “federal regulation”); Rawlins Lowndes,

Debate in the South Carolina Legislature (Jan. 16, 1788), in 2 DEBATE

ON THE CONSTITUTION 22 (calling a 1783 proposal to give Congress the

power to tax imports a power “to regulate commerce”); Letter of John

Jay, Secretary of Foreign Affairs to John Paul Jones (Oct. 6, 1787) in 33

JCC 636 (saying that Congress had no power to establish a “regulation”

meaning a tax on seaman’s wages to raise money for ransoming

American seamen held captive in Algiers).

™ Letter of Samuel Johnson to Stephen Mix Mitchell (Aug. 25,

1786) (“The Regulation of Trade is as essential a point to be cbtain'd as

the Impost, the former will eventually include the Latter and ought to

be urged with as much pathos”), 23 LETTER OF DELEGATES 525; HUGH

WILLIAMSON, SPEECH AT EDENTON, NorRTH CAROLINA (Nov. 8, 1787),

printed in THE DAILY ADVERTISER (NEW YORK) (Feb. 25-27, 1788) (saying

that sundry regulations of commerce will give the government power

not only to collect vast revenue, but also to secure the carrying trade ir

the hands of citizens in preference to strangers), reprinted in 2 DEBATE

ON THE CONSTITUTION 231; THE FEDERALIST NO. 22, at 137 (Hamilton)

(Nov. 27, 1787) (arguing that if the Constitution is not ratified, the

states might increase their “interfering and unneighborly” regulations

and pointing to the German taxes on river commerce to illustrate the

danger); Letter from James Madison to Joseph C. Cabell (Sept. 18,

1828), in 9 MADISON WRITINGS 316, 334 (arguing that Congress may

“regulate Commerce, not just to raise revenue, but also to encourage

domestic manufacture”).

11

tax.” The easy switches between tax and regulation may

seem strange to modern ears, but they indicate that the

Founders would not have drawn a legally significant line

preventing federal regulation once federal tax for the same

end was allowed.

8. The purpose of the Constitution was

not to limit the federal government

but to make it run

Removal of the “expressly delegated” limitation was

also consistent with the grand purpose of the Convention

that wrote it. The first purpose of the Constitution was to

get the federal government revenue enough to make

continuing payments on the debts of the Revolutionary

War. Restoring the public credit was the overwhelming

desperate need because in the next war, thought to be

inevitable, the federal government would need to borrow

again.” The Constitutioa is first a tax document, a pro-tax

document. As James Wilson told the Convention, “It has

never been a complaint against Congress that they gov-

erned overmuch. The complaint has been that they have

governed too little.” Or as Madison had to remind Jeffer-

son, “The evils suffered and feared from weakness in

Government have turned the attention more toward the

means of strengthening the [government] than of narrow-

ing [it]."” The Framers removed the “expressly delegated”

*” Edmund Randolph, Draft of the Constitution Presented to

Committee of Detail, in 2 FARRAND’S RECORDS 142-43 (outlining congres-

sional “regulation of commerce” as a subdivision of the power to raise

money by taxation).

* CALVIN JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE

MEANING OF THE FOUNDERS’ CONSTITUTION (Cambridge 2005).

™ James Wilson, Speech at the Federal Convention, July 14, 1787,

in 2 FARRAND’S RECORDS 10.

* Letter of James Madison to Thomas Jefferson (Feb. 4, 1790) in

16 JEFFERSON PAPERS 146, 150; see also Roger Sherman & Oliver

Elisworth to Governor Samuel Huntington, The Report of Connecticut's

Delegates to the Constitutional Convention (Sept. 26, 1787), in 13

DOCUMENTARY HisToRY 471 (saying that the states’ principal object in

(Continued on following page)

12

limitation and did not replace it because limitation of the

federal government was not the problem that needed to be

addressed in the crisis before them.

4. The enumeration in section 8 is not

exhaustive.

Reading the Constitution properly as giving a general

power to provide for the general welfare means that the

enumerated powers of clauses 2 through 17 are illustrative

of what Congress may do within an appropriately national

sphere, but are not exhaustive. The appropriate maxim of

construction for section 8 is not the hard-edged expressio

unius est exclusio alterius exclusio (to express one thing

excludes all others), but the gentler maxim of ejusdem

generis (of the same class or kind). Ejusdem generis means

that unstated items covered by a general standard must

be of the same class as the enumerated items, but the

enumerated items are not exclusive.” The phrase, “to

provide for the common Defence and general Welfare,” in

the first clause of section 8 provides the general principle

that both enumerated and implied powers must satisfy.

There was a minority view within the confines of the

Convention that thought that Congress should have only

enumerated powers. That position was defeated, however,

whenever it came up. John Rutledge of South Carolina

authorizing the convention was to vest some additional powers in

Congress) (emphasis added).

* See 2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUC-

TION § 47.17, at 188-200 (5th ed. 1992). While ejusdem generis cases are

often ones in which the general standard follows enumerated items, it

applies as well to cases in which the general standards precede the

enumerated items. Jd. at 188. Ejusdem generis accomplishes “the

purpose of giving effect to both the particular and the general words, by

treating the particular words as indicating the class, and the general

words as extending the provisions ... to everything embraced in that

class, though not specifically named by the particular words.” National

Bank of Commerce v. Estate of Ripley, 161 Mo. 126, 131, 61 S.W. 587,

588 (1901), cited in SINGER, supra, at 189,

13

called for an enumeration of powers early in the Conven-

tion,” and South Carolina voted against both the Bedford

motion and the whole binding Resolution of the Conven-

tion once the Bedford motion was added, which gave

Congress the power to legislate for the general interest of

the union.” Roger Sherman spoke in favor of an enumera-

tion™ and Connecticut voted against the Bedford motion,

but then voted for the whole binding Resolution once the

Bedford motion was added.” A majority of the Virginia

delegation voted against the Bedford motion, but then voted

for the full language of the Virginia Plan as amended by the

Bedford motion. The full Resolution as amended by the

Bedford motion then passed by eight to two, so that the

binding Resolution of the Convention gave Congress a

general power to legislate for the common interests rather

than a series of petty enumerated powers.”

When the final language was in place, Governor

Edmund Randolph, a key insider, objected that “the

latitude of the general powers” and the “cover of general

words” allowed the Congress to swallow up the states.”

George Mason, who refused to sign the Constitution,

wanted alterations so that “the object of the National

Government, [would] be expressly defined, instead of

indefinite power, under an arbitrary Constitution of

general clauses." Randolph and Mason were objecting

because the claim that Cungress should have only the

* May 31, 1787, 1 FARRAND’s Recorps 53.

* July 17, 1787, 2 FARRAND’s RECORDS 27.

* Id. at 26.

* Id. at 27.

* Id.

” Letter from James Madison to Thomas Jefferson (Oct. 24, 1787)

in 10 MADISON PAPERS 205, 215.

“ Edmund Randolph, Reasons for Not Signing the Constitution

(Dec. 27, 1787) in 8 DOCUMENTARY HIsTORY 273.

* George Mason, Alterations Proposal (Aug. 31, 1787) in SUPPLE-

MENT TO MAX FARRAND’S THE RECORDS OF THE FEDERAL CONVENTION

251 (James H. Hutson ed., 1987).

|

14

powers expressly listed lost in the writing of the Constitu-

tion.

In the Ratification debate, the proponents of the

Constitution commonly described the Constitution as

giving the Federal government “all Things of common

foederal Concern.” John Jay’s Address to the People of

New York, which was described as having an “astonishing

influence in converting Antifederalists™ and more impor-

tant than the Federalist® told the people of New York that

“(t]he Convention concurred in opinion with the people

that a national government competent to every national

object, was indispensably necessary. Oliver Ellsworth

told the Connecticut convention that the Constitution was

based on “the necessity of combining our whole force, and,

as to national purposes, becoming one state.””

5. General welfare is set by the political

process.

Under the original understanding, moreover, what qualifies

for “common defense and general welfare” would be set by the

people speaking through their elected representatives and not

by an unelected court. Hamilton promised the New York

_ Convention that the division between the federal and state

government was not a constitutional question. The divi-

sion, he said, is

“ Ezra Stiles, Diary (Dec. 21, 1787), in 3 FARRAND’S RECORDS 168-

69 (describing statement of delegate Alexander Baldwin).

“ Letter from Samuel Webb to Joseph Barrell (April 27, 1788)

quoted in Editorial Note, 17 DOCUMENTARY History 103.

“ Editorial Note, id. at 101, 107; John Kaminski, New York: The

Reluctant Pillar, in THE RELUCTANT PILLAR: New YORK AND THE

ADOPTION OF THE FEDERAL CONSTITUTION 72 (Stephen L. Schechter ed.,

1985). .

“ A Citizen of New York (John Jay), Address to the People of the

State of New York (April 15, 1787), in 17 DocUMENTARY History 101,

111 (emphasis in original).

“ Oliver Ellsworth, Debate in the Connecticut Ratification

Convention (Jan. 4, 1787) in 2 ELLIOT’s DEBATES 186 (emphasis added).

15

“the proper business of the legislation: it would

be absurd to fix it in the Constitution, both be-

cause it would be too extensive and intricate, and

because alteration of circumstances must render

a change of the division indispensable. Constitu-

tions should consist only of general provisions

[because] they must necessarily be permanent,

and ... cannot calculate for the possible change

of things.”

Similarly when Madison first explained the whole

Constitution to Jefferson who was in Paris as minister, he

argued that the line between federal and state authority

would be set by a political competition. There would be “a

continual struggle between the head and the inferior

members,” Madison explained, “until a final victory has

been gained in some instances by one, in others by the

other of them.” |

Consistently, the primary argument by Publius in the

Federalist from both the Madison and Hamilton side of

Publius is that the division between the federal and state

spheres would be governed by a political competition for

the loyalty of the people. Publius (Madison) supposed in

Federalist No. 37 that neither the local nor the general

government would entirely yield to the other, “... and

consequently that the struggle could be terminated only by

compromise” and in Federalist 46 he argued similarly that

the people in future will become more partial to the federal

than to the State governments, only if the federal level

offers “manifest and irresistible proofs of a better admini-

stration.™ Publius (Hamilton) argued that the greatest

dangers of encroachment came from the undue advantages

that the local governments had in the competition between

“ Alexander Hamilton, Speech to the New York Ratification

Convention, June 28, 1788 in 2 ELLIOT’s DEBATES 364.

“ Letter from James Madison to Thomas Jefferson (Oct. 24, 1787),

in 10 MADISON PAPERS 205, 210-11.

“ THE FEDERALIST NO. 37, at 237 (Madison) (Jan. 11, 1788).

“ THE FEDERALIST NO. 46, at 317 (Madison) (Jan. 29, 1788).

16

the levels“ and said that it would be “vague and fallible”

conjecture as to where politics would set the line.” Publius is

also asymmetrical. Supremacy of federal law, enforced by

federal courts, would render some State acts as “absolutely

and totally and repugnant” to the Constitution.” The states’

remedy against intrusions by the federal into the state sphere

is political. As the modern Supreme Court has said, “[tJhe

level of deference to the congressional decision is such that the

Court has more recently questioned whether ‘general welfare’

is a judicially enforceable restriction at all” That skepticism

about the role of a court to second guess the Congress on

“general welfare” is consistent with the original intent.

B. The written Constitution does not limit

Congress to “expressly delegated” powers,

notwithstanding claims to the contrary.

1. There were erroneous claims that the

Congress is limited to “expressly dele-

gated” powers.

Proponents of the Constitution inconsistently and

hypocritically also said that the Constitution gave only

“ THE FEDERALIST No. 31, at 197-98 (Hamilton) (Jan. 1, 1788). See

also THE FEDERALIST No. 85, at 593-94 (Hamilton) (May 28, 1788)

(saying that the greatest dangers of encroachment came from the undue

advantages that the local governments had).

© THE FepeRAList No. 31, at 198 (Hamilton) (Jan. 1, 1788). See also

James Wilson, Speech to the Pennsylvania Ratification Convention (Nov.

26, 1787), in 2 E.uior’s DEBATES 425 (arguing that the federal and the

state governments should exercise prudence, candor, moderation and

liberality because they are drawn from sources “equally pure”); Argument

of Attorney General Edmund Randolph, Chisholm v. Georgia, 2 U.S. (2

Dallas) 419, 429 (1793) (arguing that allowing individuals to sue the state

governments would not prostrate the states because the people and the

state legislatures have control over the National government).

“ THE FEDERALIST NO. 32, at 200 (Hamilton) (Jan. 2, 1788).

* South Dakota v. Dole, 483 U.S. 203, 208 n. 2 (1987) (Rehnquist,

J.); Nevada v. Skinner, 884 F.2d 445, 447 (9th Cir. 1989) (citing Dole

favorably for the proposition that the “concept of welfare or the opposite

is shaped by Congress”).

17

expressed powers. Charles Pinckney misrepresented the

document before the South Carolina House saying that in

the federal government, “no powers could be executed, but

such as were expressly delegated.” In January 1788,

Madison gave a famous version of the argument: “The

powers delegated by the proposed Constitution to the

Federal Government, are few and defined. Those which

are to remain in the State Governments are numerous and

indefinite.™ In a speech to a crowd in front of Independ-

ence Hall, James Wilson argued that the states had

plenary powers, but the federal government did not: “The

congressional authority is to be collected, not from tacit

implication,” he said, “but from the positive grant ex-

pressed in the” proposed Constitution. The states, he

argued, could have powers not mentioned in any docu-

ment. For the federal government, however, “everything

which is not given, is reserved.””

* Charles Pinckney, Speech to the South Carolina House of

Representatives (Jan. 16, 1788) in 4 ELuiot’s DEBATES 259 (emphasis

added).

“ Tue FEDERALIST No. 45, at 313 (Madison) (Jan. 26, 1788).

Madison repeated the argument, in the attempt to defeat the national

bank in 1791. James Madison, Debate in the House of Representatives,

1 ANNALS 1945, 1st Cong., 3d Sess. (1791) (saying that the Constitution

“is not a general grant, out of which, particular powers are excepted; it

is a grant of particular powers only, leaving the general mass in other

hands”), see also James Madison, Address to the People of Virginia (Jan.

23, 1799), in 6 MADISON WRITINGS 333-36:

For the honor of American understanding, we will not be-

lieve that the people have been allured into the adoption of

the Constitution of undefined powers.... [T]he preamble

would admit a reading which would erect the will of Con-

gress into a power in all cases, and therefore limited in

none, [but] the objects for which the Constitution was

formed were attainable only by a particular enumeration

and specification of power granted to the Federal Govern-

ment; reserving all others to the People, or to the States.

“ James Wilson, Speech to Public Meeting in Philadelphia (Oct. 6,

1787), in 13 DOCUMENTARY History 339.

18

2. But there was no “expressly delegated”

limit in text.

The proponents of the Constitution should not have

said that Congress would have only powers expressly

delegated to it because that misrepresented the document.

Thomas Jefferson in Paris treated the argument that all

powers were listed with disdain:

To say, as Mr. Wilson does that ... all is reserved

in the case of the general government which is

not given ... might do for the Audience to whom

it was addressed, but is surely gratis dictim, op-

posed by strong inferences from the body of the

instrument, as well as from the omission of the

clause of our present confederation [Article II],

which declared that in express terms.”

The Anti-Federalists devastated the claim that the

enumerated powers were exhaustive. “Let us compare

Wilson’s claim that all powers not granted are reserved,”

said a Republican in New York, “with the sense of the

framers, as expressed in the instrument itself.” In his

first essay, Brutus noted especially the absence of the

“expressly delegated” limitation and concluded from its

absence that “[t/his is as much one complete government

as that of New York or Massachusetts [and] has as abso-

lute and perfect powers to make and execute all laws.”

Brutus also labeled Wilson’s argument that all which is

not given is reserved as “rather specious than solid.”

“(T]he powers granted to the general government by this

™ Letter from Thomas Jefferson to James Madison (Dec. 10, 1787),

in 10 JEFFERSON Papers 439, 440. LATIN WORDS AND PHRASES FOR

LAWwYERs (B.S. Vasan ed., 1980) translates gratis dictim as a “voluntary

statement or assertion to which a person may not be legally bound.”

” A Republican I: To James Wilson, Esquire, NEW YORK J. (Oct. 25,

1787), reprinted in 13 DocumMENTARY History 478.

“ Brutus I, New YorkK J. (Oct. 18, 1787), reprinted in 18 DOCUMEN-

TARY History 414.

19

constitution,” he said, “are complete.™ Centinel in Phila-

delphia said that the Constitution did not limit Congress

to powers expressly delegated by proper authority and

instead made laws of Congress paramount to all State

authorities.” “If this doctrine is true,” said “A Democratic

Federalist” in Pennsylvania, “it ought at least to have been

clearly expressed in the plan of government.™ Arthur Lee

wrote in Virginia that “Mr. Wilson’s sophism has no weight

with me when he declares . . . that in this Constitution we

retain all we do not give up, because I cannot observe upon

what foundation he has rested this curious observation.™

The intentional deletion of the “expressly delegated”

limitation makes it impossible to read the Constitution as

if the writing limited Congress to expressly delegated

powers. In our Constitution, it is the writing that binds us

and not the loose lips of the proponents.

3. Loose talk does not amend the Constitu-

tion.

It should also be permissible to use arguments from

the ratification debate only for the limited purpose of

understanding what the Constitutional language says.

” Brutus II, New York J. (Nov. 1, 1787), reprinted in 13 DocuMEN-

TARY History 524, 526.

“ Centinel Il, PHILADELPHIA FReeMAN’s J. (Oct. 24, 1787), re-

printed in 13 DOCUMENTARY HISTORY 457, 460; see also Cincinnatus I,

To James Wilson, Esquire, NEw YORK J. (Nov. 1, 1787) (arguing that the

Articles said at the outset that what is not expressly given is reserved,

but the Constitution makes no such reservation, such that the framers

of the proposed constitution presumably did not mean to subject it to

the same exception), reprinted in 13 DOCUMENTARY HISTORY 530.

“ A Democratic Federalist, PENNSYLVANIA HERALD (Oct. 17, 1787),

reprinted in 13 Documentary History 387; accord An Old Whig II,

PHILADELPHIA GAZETTEER (Oct. 17, 1787) (arguing that the powers were

not enumerated or reserved by the Constitution and that Congress may

judge what is necessary and proper in all cases) reprinted in 13

DOCUMENTARY HISTORY 402.

" Letter from George Lee Tuberville to Arthur Lee (Oct. 28, 1787),

in 13 DocumEeNTaryY History 506.

The Constitution was written in Philadelphia and once it

left Philadelphia the ink was dry and the meaning of the

writing was set. The ratification conventions came to

adopt what amounted to a closed rule for debate on the

Constitution: the conventions would recommend amend-

ments to the first Congress, but they would not make

amendments that were preconditions to ratification.”

Thus the ratifiers were in a take-it-or-leave-it position on

the Constitution without being able to influence the

meaning. The unified meaning of the Constitution, the

‘official idea,’ was set in Philadelphia. The Philadelphia

delegates argued from May to September to reach a single

draft. All were bound by the written words.

After Philadelphia, however, there was never again

any procedure or discipline to force a single draft or single

entire seaboard with a population of 3 million. Reading the

debates, one often wonders what document they are

talking about, or at least one sees a shift on the order of

“enough about you, let us talk about me.” Readers in the

debates commonly missed the point, or came up with

interpretations that we do not find as matching the words,

although that was what they understood to be the mean-

ingful point to discuss. There was, as Joseph Story said,

“[njo certainty, either that different state conventions . .

gave the same interpretation to its language, or that, even

in a single state convention, the same reasoning prevailed

even within a majority. Putting in an “expressly dele-

gated” limitation that was not there was easy to get away

“ See, e.g., James Madison, Speech to the Virginia Ratification

Convention (June 24, 1788), in 3 ELLior’s DeBaTes 618-619 (arguing

that every state will propose contradictory amendments and be unable

to agree on them); Convention records (June 24, 1788), in id. at 653-55

(Virginia convention defeats Anti-Federalist motion for amendments

prior to ratification).

“ JoserH Srory, 1 ConsTITUTIONAL COMMENTARY 388-389 (1833).

See also Leonard Levy, Ratifying Intent, ENCYCLOPEDIA OF THE CONSTI.

TUTION: SUPPLEMENT 40 (1991) (attacking the “utter looseness” of the

argument that ratifier intent governs).

21

with within the loosey-goosey discipline of the ratification

debates. It is a written Constitution that binds us, how-

ever, and the document was written in Philadelphia. The

written Constitution does not have an expressly delegated

limitation because the Framers took it out.

The records of the constitutional convention were

are not binding authority. Still, the debates clarify our

understanding of the binding written Constitution. They

are persuasive as to what the Constitution means because

they fit the writing. By contrast, the claim in the ratifica-

tion debate that Congress had only the powers expressly

delegated to it does not fit the writing and is neither

authority nor persuasive.

4. The Tenth Amendment: No “expressly

delegated” limit.

The Tenth Amendment, which provides that the states

expressly given is reserved, but the Constitution makes no such

tent with Mason's charge, because it is a symbolic truism,

has, whether expressed or implied.

“ August 18, 1789, 1 ANNALS 790, Ist Cong., Ist Sess.

" McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 406-07 (1819)

(Marshall, J.).

™ See Charles A Lofgren, The Origins of the Tenth Amendment, in

CONSTITUTIONAL GOVERNMENT IN AMERICA 331 (Ronald Collins, ed

1980) (explaining that nothing in the Tenth Amendment undercuts the

strong nationalism of the Constitution).

” Aedanus Burke, Aug. 15, 1789, 1 ANNALS 774.

™ George Mason to John Mason (July 31, 1789), in 3 PAPERS OF

GEORGE MASON 1164.

™ 11 U.S. 32 (1812) (Johnson, William, J). See Gery Rowe, The

Sound of Silence, 101 YALE L. J. 919, 936-39 (1992); Bruce ACKERMAN,

THE FAILURE OF THE FOUNDING FATHERS 233-40 (2005).

:

E

up of concessions from the several states — — what

endorsed the doctrine of limited or enumerated power, in

dicta on the way to justifying a national bank: “This

government is acknowledged by all to be one of enumer-

ated powers,” Chief Justice John Marshall said, and “[t)he

principle, that it can exercise only the powers granted to

it, fis] now universally admitted.” Still, while an embat-

tled Marshall wrote dicta accepting it, the enumerated

power doctrine is hard to maintain as a matter of the

writing of the Constitution or its original intent. A return

to the original writing of the Constitution, and to a puri-

Jefferson in attempting to limit Congress to the

enumerated powers argued that the first clause of section

™ Id. at 33.

” Letter from Thomas Jefferson to Albert Gallatin (June 16, 1817),

in 12 JEFFERSON Papers 71.

™ McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

™ Id. at 4065.

preface, to be given a more

specifically or namely for the powers of clauses 2-17.” The

subsequent enumerated powers, Jefferson are to

give an “exact definition” of the general welfare language.”

In FEDERALIST No. 41, Madison argued that the fact that

the phrase, “common Defence and general Welfare,” in

Article I, section 8, clause 1 was not “separated by a longer

event, “dees net cay ‘“to provide for the common defence,

and general welfare, in manner following, viz.,’ which,” as

™ Letter from Thomas Jefferson to Albert Gallatin (June 16, 1817),

in 12 JEFFERSON PAPERS 71-73 (referring to “the exact definition of

powers immediately following” the general welfare clause).

” Tue FeperAList No. 41, at 277 (Madison) (Jan. 19, 1788). James

Madison, Memorandum not used in letter to Andrew Stevenson (Nov.

25

Story noted, “would be the natural expression, to indicate

such an intention.””

7. Close reading of the text refutes the “ex-

pressly delegated” interpretation.

If we use close-reading of the text, we will conclude

that the text of section 8 is more consistent with the

ejusdem generis (illustrative) interpretation of the enu-

merated powers than with expressio unius est exclusio

alterius exclusio (exhaustive) interpretation. On the face of

them, the listed powers in clauses 2-17 of section 8 are not

statements of the great goals of government. They are just

specific programs or instruments the drafters thought they

would like to do in the short run. They often have cumber-

some detail. Clauses 11-15, for example, allow Congress to

raise and support an army and a navy for the common

defense, but over five paragraphs. It is difficult, for in-

stance, to imply from the detail in those paragraphs that

the Framers were trying to deny Congress the power to

defend the country by ways not detailed. We may, for

instance, need to find power to draft for the Air Force or

even a space force to provide for the common defense,

without shoehorning a draft for a military force in air or

space into enumerated powers to provide for a military

force on land or a naval force on water. They were not

denying alternative methods to provide for the common

defense just by listing some instruments they wanted, and

some rules they wanted (no more than two-years of appro-

priation at once) about those instruments. The enumera-

tion of section 8 is simply not a list of great powers or

noble goals of government. The great goal of the national

government is in clause 1, to provide for the common

defense and general welfare.

™ 2 JosepH Story, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES §§ 908, 910, 911, at p. 371-72 (1833).

26

Il. The Original Commerce Clause

The commerce clause was written to allow

Congress to adopt a number of programs to

punish imports, grant monopoly franchises

and punish foreign shippers, all within the

then dominant economic philosophy of mer-

cantilism. No issue subjected to any debates

has any application to problems in the twenty-

first century.

Clause 3 of Article I, section 8 allows Congress to

regulate commerce with foreign nations, and among the

several states. The original intent of the commerce clause

was to provide authority for a number of mercantilist

programs, none of which have any appeal in the twenty-

first century. Interstate commerce did not come up in the

debates. Neither the original intent nor founding debates

on the commerce clause provide any evidence of the values

of the Founders helpful to resolution of issues of the

general jurisdiction of the federal government.

To understand words of a historical document, one

must first understand the core programs that words were

written to accomplish.” In the original debates over

adoption of the Constitution, “regulation of commerce” was

used, almost exclusively, as a cover of words for specific

mercantilist proposals related to deep-water shipping and

foreign trade. The Constitution was written before Adam

Smith, laissez faire and free trade came to dominate

economic thinking. The commerce clause draws its original

meaning from the preceding mercantilist tradition. The

concrete programs intended to be forwarded by giving

Congress the power to regulate commerce were restric-

tions on imports, to preserve precious specie, were restric-

tions on international trade to give subsidy or protection to

” See, e.g., Quentin Skinner, Meaning and Understanding the

History of Ideas in MEANING AND UNDERSTANDING: QUENTIN SKINNER

AND HIS CRITICS 3, 55-65, 260 (James Tully, ed., 1988).

27

favored domestic merchants or were penalties on foreign

shippers to induce foreign nations to drop their protection-

ist policies. Neither trade with the Indians nor interstate

commerce were debated or thought about.

In The Panda’s Thumb: The Modest and Mercantilist

Original Meaning of the Commerce Clause,” I collect a

sample of 161 uses of the phrase “regulation of commerce”

closely tied to the debates leading to the Constitution. The

samples can be summarized quickly.

A. Regulation of commerce meant first to tax it.

“Regulation of commerce,” most importantly and

commonly, meant taxing imports on the national level.

New York had a tax on imports, called an “impost,” by

which it paid for purely state purposes by taxing imports

through New York harbor. Connecticut and New Jersey

hated the tax. In Connecticut, the proponents of the

Constitution warned that those “gentlemen in New York

who receive large salaries ... know that their offices will

be more insecure ... when the expenses of government

shall be paid by their constituents, than while paid by us.”

New York had rendered Connecticut and New Jersey

tributary to New York, Publius said, by its “commercial

regulations.” Nationalizing the New York and other state

imposts would also allow the federal government to

increase the rate of tax on imports because it would

prevent one state from undercutting rates by providing a

lower tax and an end run around high imposts. Under the

(now discredited) mercantilist economics then dominant,

any suppression of imports by tax or restriction would

preserve precious specie and serve the national welfare.

” Calvin Johnson, The Panda’s Thumb: The Modest and Mercantil-

ist Original Meaning of the Commerce Clause, 13 WM. & MARY BILL OF

Ricuts J. 1 (2004).

" Editorial, CONNECTICUT COURANT (Dec. 24, 1787) reprinted in 15

DOCUMENTARY HISTORY 82.

“ THE FEDERALIST NO. 7, at 40 (Hamilton) (Nov. 7, 1787).

28

Federal revenue was also critical to the Founders to

restore the public credit so they could borrow in the next

and inevitable war. While nationalizing the state imposts

was the most important “regulation of commerce” issue,

clause 1, the tax clause, is itself sufficient to authorize

nationalization of the state imposts. Nothing is added by

the commerce clause.

B. Nontax regulation of commerce referred

to mean-spirited mercantilist programs

that were never adopted. :

Beyond tax, “regulation of commerce” was used as a

reference to three restrictive mercantilist programs that

never had enough political strength behind them to be

seriously considered: (1) an American Navigation Act, giving

Northern shippers a monopoly on the export of Southern

commodities, (2) a retaliatory impost against the British to

induce the British to open up the West Indies ports to Ameri-

can ships, and (3) port preferences requiring that all dealings

with foreigners be conducted through preferred ports. None

of the three programs — a monopoly for American shippers, a

retaliatory impost against the British, or port preferences —

were ever adopted and indeed port preferences were banned

by the Philadelphia Convention itself. This is of course to be

celebrated. All of the programs were mean-spirited programs

that would ultimately hurt American consumers. With the

demise of mercantilism as a guiding light, it would be

terrible if we were bound by the Founders to adopt programs

with such little true economic merit. :

C. Interstate commerce was not a material

issue in the constitutional debates.

There was no substantial debate or program in 1787-

1788 within the category of interstate commerce because

the Founders saw no substantial burdens on interstate

commerce that needed to be discussed or corrected.” The

” The Panda's Thumb at 42-46.

29

Articles of Confederation had already prohibited a state’s

imposing taxes or regulations on an out-of-state American

that it was unwilling to impose on its own citizens” and

that norm was almost uniformly followed. The state

imposts or taxes on imports exempted goods of American

growth or produce so that by ratification there were no

state taxes or burdens on interstate commerce. In the only

significant reference to interstate commerce in the entire

debates, Hamilton conceded that a toll on interstate

commerce would require not only a repeal of the Articles’

prohibition, but also an overriding of “the genius of the

people of this country.” The Founders were concerned

with fairness between the states, but the norm shows up

outside of the commerce clause. As one thorough survey

put it, “The thing that strikes one’s attention in seeking

reference to interstate commerce is their paucity.”

When Madison recorded the Convention's agreeing to

the commerce clause, on August 16, 1787, without debate,

he described the clause as the “[cjlause for regulating

commerce with foreign nation and &c.”’ Regulation of

commerce between the states and with the Indians shows

up only within the space allowed by Madison’s “&c.”

The commerce clause exploded in importance from its

original mercantilist meaning only because the best

reading of the Constitution — a general power to provide

for the common defense and general welfare — was blocked

by the false supposition that clauses 2 through 17 were

exhaustive. Returning to the original intent would require

deciding jurisdiction of the Army Corps of Engineers under

Congress’ power to provide fer the general welfare, and not

under its mercantilist power to suppress and channel

commerce.

“ ARTICLES OF CONFEDERATION, art. IV, 19 JCC 215.

“ THE FEDERALIST NO. 22, at 137 (Hamilton).

“ Albert S. Abel, The Commerce Clause in the Constitutional

Convention and in Contemporary Comment, 25 MINN. L. REV. 470, 481

(1941).

” (Aug. 16, 1787) 2 FARRAND’S RECORDS 308.

30

The debates that give original meaning to the Consti-

tution were debates about some very unattractive mercan-

tilist programs. There were no debates about interstate

commerce and no opportunity for the values of the Foun-

ders to show up there. To defer to the Founders on the

scope of interstate commerce would be to defer to a consti-

tutional nothing — they did not think about the scope of

interstate commerce one way or the other. To try to base a

twenty-first century government on 18th century debates

on inter-state commerce is like trying to build a Cathedral

on a swamp ooze, maybe on nonexistent swamp ooze.

It is, on the other hand, perfectly consistent with the

values of the Founders that congressional power should

expand to cover the necessities and the general interests of

the union, where the sovereign Congress voted for it.

Where Congress has determined that preservation of clean

water and wetlands is in the general welfare, that is

sufficient to make the activity constitutional.

CONCLUSION

Original intent does not confine the federal govern-

ment to a narrow corral. The Constitution written allows

Congress to provide for the “common Defence and general

Welfare” of the United States. Under this standard, the

United States Army Corps of Engineers may under the

Clean Water Act deny a permit to build a multi-unit

condominium which would cause extreme damage to the

wetlands and pollute waters, and may punish illegal

dumping and filling. Protecting the water of the country

from pollution falls squarely under a national power to

protect the general welfare of the country.

For these reasons the decisions of the Sixth Circuit in

Carabell v. Army Corps of Engineers and Rapanos v.

United States should be affirmed.

Respectfully submitted,

CALVIN H. JOHNSON

Amicus Curiae, pro se.

. 4

No. 04-1034 consolidated with No. 04-1384

JOHN A. RAPANOS et al., JUNE CARABELL et al.,

Petitioners, Petitioners,

Vv. Vv.

UNITED STATES, UNITED STATES ARMY

Respondent. CORPS OF ENGINEERS

et al.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURLE CHARLES R. JOHNSON, ATLANTIC

LEGAL FOUNDATION, DEFENDERS OF PROPERTY RIGHTS,

AND NEW ENGLAND LEGAL FOUNDATION IN SUPPORT OF

PETITIONERS ON THE MERITS

MARTIN S. KAUFMAN MICHAEL E. MALAMUT

Counsel of Record for Amicus Counsel of Record for Amici

Atlantic Legal Foundation Andrew R. Grainger

60 East 42nd St., Ste. 2102 Martin J. Newhouse

New York, NY 10165 New England Legal

Tel.: (212) 867-3322 Foundation

Fax: (212) 867-1022 150 Lincoln St.

mskaufman@ atlanticlegal.org § Boston, MA 02111

Tel.: (617) 695-3660 x 204

Fax: (617) 695-3656

michaelmalamut@nelfonline.org

QUESTIONS PRESENTED

Does the Clean Water Act prohibition on unpermitted

discharges to “navigable waters” extend to

nonnavigable wetlands that do not even abut a

navigable water?

Does extension of Clean Water Act jurisdiction to every

intrastate wetland with any sort of hydrological

connection to navigable waters, no matter how tenuous

or remote the connection, exceed Congress’

constitutional power to regulate commerce among the

states?

_ TABLE OF CONTENTS

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a ciicirteneaensiittindiniitieneinciansinnitininaiaciipianipusiiittutein iii

ee ae erecceerttetccetinsttennitrneticnennsaisinaicminn 1

rE IU teiinesincustrisneisintctttesiteicinitianiteinsciniteistinanii SOS

ePID SENET stincsnprscntinsinicitniapsisbisieininnipansinsansitiannsuaetinien 7

ee rinicccsisinittcinitanieiiitiiitaiintninniibinsieniietisintismpintidnsieisaintiitiittinsl 8

I. The “hydrological connection rule,” which

would extend the Corps’ regulatory

authority to all inland wetlands, is

inconsistent with this Court’s holding that

the Corps’ dredge-and-fill authority is

limited to wetlands adjacent to navigable

Il. The dredge and fill permit requirements

under Section 404 of the Clean Water Act

can extend only to wetlands adjacent to

actual navigable and tidal waters ...................ccc00 18

EIT IEEE Uisiashipsivichthtemetihcteehtasiiatiiisidaeihadebisaesnieciaieiiaigtlimaeinlisitealh deal 23

TABLE OF AUTHORITIES

CASES

Carabell v. United States Army Corps of Eng’rs,

391 F.3d 704, cert. granted, 126 S. Ct. 415 (2005) ......... 8,

13,15

The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871) .......-sccceseseseseees 10

Economy Light and Power Co. v. United States,

De SIN wet ctnscnritincactntsitetattinsinindsintonsamvanniincenin 10

Edward ]. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &

Constr. Trades Council, 485 U.S. 568 (1988) ................. 23

FD & P Ents., Inc. v. United States Army Corps of Engineers,

239 F. Supp. 2d 509 (D.N.J. 2003) .......c.cccccesseseeeseees 14,15

Gibbons v. Ogden, 22-U.S. (9 Wheat.) 1 (1824) ...........0. positon: 10

Gonzalez v. Raich, 125 S. Ct. 2195 (2005) ......cccecsseseseeeeeeeees 19,20

Headwaters v. Talent Irrigation Dist., 243 F.3d 526

SEI: GID. nesestactinvascenssctnamiinatinnnsiamniinedinmmmmenmnts 15

Idaho Rural Council v. Bosma, 143 F. Supp. 2d 1169

eS ED irnesierctepesnincavieniiiensnntnneniadcenanigumenmtermnns 12

In re Needham, 354 F.3d 340 (5th Cir. 2003) «0.0.0... 12,13,15

McDermott Int'l, Inc. v. Wilander, 498 U.S. 337 (1991) ............ 10

Rice v. Harken Exploration Co., 250 F.3d 264 (5th Cir. 2001)....15

Solid Waste Agency of Northern Cook County v. United States

Army Corps of Engineers, 531 U.S. 159 (2001) ......passim

Treacy v. Newdunn Assoc., LLP, 344 F.3d 407

FG ID cetrcintcnnapeiceienistennmnmnnnnminnnnieniienieianes 15

United States v. Appalachian Elec. Power Co.,

SOR GRD, SOF Ge sciteccntesiesnerinnninsiniiisaiiacisaiandiititaia 10

United States v. Deaton, 332 F.3d 698 (4th Cir. 2003),

cart. Garahad, SER US. SV8 GIO cceccessessessscsreservevensessnsese 15

United States v. Lopez, 514 U.S. 549 (1995) .......cccc00e 18,19,21,22

United States v. Morrison, 529 U.S. 598 (2000) .............. 18,19,22

United States v. Rapanos, 190 F. Supp. 2d 1011 (E.D. Mich.

2002), rev'd, 339 F.3d 447 (6th Cir. 2003),

cert. denied, 541 U.S. 972 (2004) ............cccccsssssseseessereees 14

United States v. Rapanos, 339 F.3d 447 (6th Cir. 2003),

cert. denied, 541 U.S. 972 (2004) ...........csccssssesesereeseenes 7,12

United States v. Rapanos, 376 F.3d 629 (6th Cir. 2004),

cert. granted, 126 S. Ct. 414 (2005) .........cccceseeeees 12,15,16

United States v. Reuth Dev. Co., 335 F.3d 598 (7th Cir.),

cert. denied, 540 U.S. 1050 (2003) ..........ccccccseeeeeseereeneeeee 15

United States v. Riverside Bayview Homes, Inc.,

ot een ee 10

United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) ......... 20,21

CONSTITUTION, STATUTES, AND REGULATIONS

Const. Art. I, § 8, cl. 3 (Commerce Clause) ........... 8,18,19,21,22

33 U.S.C. §§ 1251 et seq. (Clean Water Act (“CWA”)).....passim

FP ers I GD wrccssescssensaineniniititinintananlinadiiademaa 18,21

am ee passim

Se BF ae a CCG etrcttcccsencneciereennnietninanaa 9,17

iv

ID canentcerencneseenesicsesenscicorvcssnnssecststncsnsin 17

LLL Ee Te 12

33 CFR § 323.2 (a) (5) (1978) ceccecccvccvecsecsesecssesessesessssavsessssssseseseee 9

51 Fed. Reg. 41217 (1986) ..cccccccscssssssvssvesvssseeesseseeeeeennnsns “>> arene 9

MISCELLANEOUS

The Wetlands Permitting Process: Is It Working Fairly:

Hearing Before the Subcommittee on Water Resources

& Environment of the House Committee on

Transportation and Infrastructure, 107th Cong.

SIG TA IED cscersnsichnsnensthncntensieseitiveeneenacenmmmeasanecasomennnensseess 12

Brian Knutsen, Asserting Clean Water Act Jurisdiction over

Isolated Waters: What Happens after the SWANCC

Decision, 10 Alb. L. Envtl. Outlook J. 155 (2005) ....... 16

Robin Kundis Craig, Beyond SWANCC: The New

Federalism and Clean Water Act Jurisdiction,

is SID a ctsisinteiceeeniccncseeneasennesnensens 12,13

Bradford C. Mank, The Murky Future of the Clean Water Act

after SWANCC: Using a Hydrological Connection

Approach to Saving the Clean Water Act,

30 Ecology L.Q. 811 (2003) ...........c:cssecesesessersssseeneees 14,22

Columbia Encyclopedia, Watershed, available at

http://www.bartleby.com/65/wa/ watershe.html .....13

Conservation Technology Information Center, Perdue

University, Groundwater & Surface Water:

Understanding the Interaction, available at

http://www.ctic.purdue.edu/KYW/Brochures/

SITS SIRIIITT voiicensisireneonieseonseustunisusesasenasqesccnaeese 13

Continental Divide, available at http://answers.com/

topic/ continental-divide-1&method=6 ...............-.-++«. 13

Great Basin, available at http://www.answers.com/

RR ERO CREED cecncnnemssnsemneenecsemnemememenemecenecsnes 13

United States Corps of Army Engineers, Administration

to Reaffirm Commitment to No Net Loss of Wetlands

and Address Approach to Protecting Isolated Waters

in Light of Supreme Court Ruling on Jurisdictional

Issues, News Release (Jan. 10, 2003), available

at http://www.usace.army.mil/inet/functions/cw/

hot_topics/admin_affirm_nr.pdf .............0s00e00000 11,22

United States Geological Survey, Geological Provinces of the

United States: Basin & Range Province, available at

http://wrgis.wr.usgs.gov/docs/parks/province/

DED ceccccscensencsnnsenniinesnstinscnstensscinmnansstensia 13

vi

Tee ee ee ee

Supreme Court of the United States

October Term, 2004

No. 04-1034 consolidated with No. 04-1384

JOHN A. RAPANOS et al., JUNE CARABELL et al.,

Petitioners, Petitioners,

V. V.

UNITED STATES, UNITED STATES ARMY

Respondent. CORPS OF ENGINEERS

et al.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURLE CHARLES R. JOHNSON, ATLANTIC

LEGAL FOUNDATION, DEFENDERS OF PROPERTY RIGHTS, AND

NEW ENGLAND LEGAL FOUNDATION IN SUPPORT OF

PETITIONERS ON THE MERITS

INTEREST OF AMICI CURLE

Amici Charles R. Johnson (“Johnson”), Atlantic Legal

Foundation (“Atlantic Legal”), Defenders of Property Rights

(“Defenders”), and New England Legal Foundation (“NELF”)

seek to bring to the Court's attention their views, and the views

of their supporters, concerning the authority of the Army Corps

of Engineers to regulate filling of inland wetlands under 33

U.S.C. § 1344, Section 404 of the Clean Water Act, 33 U.S.C.

§§ 1251 et seq. (“CWA”).

1 Pursuant to Supreme Court Rule 37.6, counsel for amici states that

neither counsel for Petitioners nor Respondent authored this Brief in whole

Amicus Curie Charles R. Johnson is a 73 year-old

cranberry farmer from Carver, Massachusetts. He purchased

his first cranberry bog in 1958 and currently farms

approximately 140 acres of cranberry bogs. The Wetlands

Permitting Process: Is It Working Fairly: Hearing Before the

Subcommittee on Water Resources & Environment of the House

Committee on Transportation and Infrastructure, 107th Cong. 56

(Oct. 3, 2001) (statement of Charles R. Johnson) (“Wetland

Permitting Process”).

In 1999, the Environmental Protection Agency (“EPA”)

commenced a civil case in the United States District Court for

the District of Massachusetts against Mr. Johnson, his wife, his

son, and a family-owned limited partnership (collectively, “the

Johnsons”) for filling activity in wetlands associated with the

creation and maintenance of his cranberry bogs, allegedly

without a required permit under Section 404 of the Clean Water

Act (“CWA”), 31 U.S.C. § 1344. United States v. Charles Johnson et

al., Civ. No. 99-12465-EFH (D. Mass.).

The Johnsons’ principal defense to liability was that the

cranberry bogs in question are remote from navigable waters

and the only water flow from their property to the nearest

navigable waterway was indirect, through a series of

unnavigable (and often unnamed) tributaries. In other words,

their argument is similar to that of the Petitioners that their

property is too remote from navigable waters to come within

EPA authority under Section 404 of the CWA, as clarified by

this Court's decision in Solid Waste Agency of Northern Cook

or in part and no person or entity other than amici made a monetary

contribution to the preparation or submission of the brief. Pursuant to

Supreme Court Rule 37.3 (a), counsel for Amici have submitted consents by

both parties to the filing of this Brief.

2

County v. United States Army Corps of Engineers, 531 U.S. 159

(2001) (“SWANCC”).

The District Court granted partial summary judgment

against the Johnsons on liability by order of May 6, 2004, and

summary judgment on remedy by order of January 13, 2005.

On March 22, 2005, the Johnsons filed their notice of appeal to

the United States Court of Appeals for the First Circuit, where

the case is now pending. United States v. Johnson, No. 05-1444

(1st Cir.).

Atlantic Legal Foundation is a nonprofit, nonpartisan

public interest law firm incorporated in Pennsylvania in 1976.

Its mission is to advance the rule of law by advocating limited,

effective government, free enterprise, individual liberty, school

choice, and sound science. Atlantic Legal’s goal is to advance

the cause of economic and individual freedom by making

government — federal, state, and local— more accountable and

less intrusive. Atlantic Legal seeks to advance these goals

through litigation and public advocacy and education. Atlantic

Legal provides pro bono legal representation to individuals,

corporations, trade associations, and similar groups.

Atlantic Legal’s supporters include individuals,

business enterprises and philanthropic foundations. Atlantic

Legal Foundation’s board of directors and legal advisory

committee consist of legal scholars, corporate legal officers,

business executives, retired public officials and judges, and

prominent scientists.

Atlantic Legal has appeared in this Court and in

numerous federal and state appellate courts as an amicus or as

counsel to amici. Among the cases in this Court involving

property rights, excessive regulation of land use, or

environmental regulation in which Atlantic Legal has appeared

. 3

include Keystone Bituminous Coal Association v. DeBenedictis, 480

U.S. 470 (1987); RCK Properties, f/k/a Forest Properties v. United

States, 528 U.S. 951 (1999); Cole v. County of Santa Barbara, 537

U.S. 973 (2002); Hansen v. United States, 535 U.S. 1111 (2002);

and Tahoe-Sierra Preservation Council v. Tahoe Regional Planning

Agency, 535 U.S. 302 (2002). sae

Other cases in this Court involving issues of

constitutional or public policy importance in which Atlantic

Legal has appeared as amicus or counsel for amici include

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);

General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co.

v. Carmichael, 526 U.S. 137 (1999); Board of Regents of University of

Wisconsin System v. Southworth, 529 U.S.217 (2000); Crosby v.

National Foreign Trade Council, 530 U.S. 363 (2000); and Rumsfeld

v. Forum for Academic and Institutional Rights, No. 04-1152

(October Term 2005).

Defenders of Property Rights is the only national legal

defense foundation dedicated exclusively to protecting private

property rights. Based in Washington, D.C., Defenders was

founded as a non-profit, public interest legal foundation in

1991 and has 23,000 members. Its mission is to protect

vigorously those rights considered essential by the Framers of

the Constitution, and to promote a better understanding of the

relationship between private property rights and individual

liberty.

Defenders engages in litigation across the country on

behalf of its members and the public interest to prevent

government incursion into protections guaranteed by the Bill of

Rights. Since its inception, Defenders has participated in every

major property rights case before the U.S. Supreme Court. See,

e.g., Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 S.

a

Ct. 2764 (2005); Kelo v. City of New London, 125 S. Ct. 2655

(2005); San Remo Hotel, L.P. v. City and County of San Francisco,

125 S. Ct. 2491 (2005); Lingle v. Chevron U.S.A., Inc., 125 S. Ct.

2074 (2005); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S.

Ct. 1517 (2005); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l

Planning Agency, 535 U.S. 302 (2002); Palazzolo v. Rhode Island,

533 U.S. 606 (2001); Solid Waste Agency of Northern Cook County

v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); City of

Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687

(1999); Phillips v. Washington Legal Foundation, 524 U.S. 156

(1998); Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725

(1997); Bennett v. Spear, 520 U.S. 154 (1997); Dolan v. City of

Tigard, 512 U.S. 374 (1994); Keene Corp. v. United States, 508 U.S.

200 (1993); and Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992).

Amicus Curi# NELF is a non-profit, public interest law

firm, incorporated in Massachusetts in 1977. It is

headquartered in Boston. Its membership consists of

corporations, law firms, individuals, and others who believe in

NELF’s mission of promoting balanced economic growth for

the United States and the New England region, protecting the

free enterprise system, and defending economic rights. NELF’s

more than 130 members and supporters include a cross-section

of large and small corporations from all parts of New England

and the United States.

NELF’s members are affected by the business climate in

New England, which depends, in part, upon a fair balance of

regulation in regard to property development and growth. A

healthy real estate development climate is a mark of a vital and

vibrant economy and depends on secure rights for property

owners. Furthermore, some of NELF’s members are directly

interested in the issue of real estate development and land use

5