In his majority opinion, Oliver Wendell Holmes attempts to justify a hierarchy of constitutional principles. Specifically, in construing Article VI’s “authority” clause and its “supreme law of the land” clause, he rates explicitly-stated constitutional prohibitions over implicit prohibitions, and he claims that treaty law overrides the unspecified ‘reserve powers’ of the states, mentioned in the Tenth Amendment.
Holmes’s argument regarding the wording of Article VI has been disputed on the grounds that Article VI’s reference to laws made in pursuance of the Constitution and treaties made under the authority of the United States both refer to the obligation to pay debts contracted during the Revolutionary War under the Articles of Confederation, as well as to future debts contracted under the Constitution. But while these debts are specifically mentioned in the Article’s previous clause, there is no need to assume that the language of the clause under scrutiny refers back to obligations undertaken under the Articles of Confederation alone; clearly, the language refers to future treaties, as well. Moreover, the language of the Tenth Amendment does not overturn the treaty power. Holmes could have confined his decision to those points, which would have forced the plaintiffs to narrow the dispute to whether hunting (as opposed to shipping) migratory wildfowl really falls under the interstate commerce clause. (After all, the birds aren’t being shipped across state lines; they are moving on their own.) He chose not to, but instead took the opportunity to advance a new way of interpreting the Constitution as a whole.
Holmes begins by appearing to have recourse to the ancient Roman principle, ‘the public safety is the supreme law’ or, as his contemporary, John Dewey, might have put it, necessity is as necessity does. But this maxim won’t ‘do’ for Holmes, at least in its naked meaning. It would not restrict a government to its own “authority” any more than it would restrict it to a constitution. “Authority” suggests a distinction between legitimacy and tyranny. Naked necessity could imply an appeal to despotism.
Holmes has almost ventured beyond ‘broad construction’ of the Constitution, into extra-constitutional ground. But he does not want to step too far away from constitutional law. To do so would put at hazard his own authority as a judge. Moreover, he also does not want to step into the extraconstitutional terrain preferred by the Framers, the terrain of natural right, which he regards as a land of myth, a realm harmonized by the mystic chords of memory that Lincoln invoked futilely on the eve of the Civil War.
Holmes makes a different move. He defines the Constitution as “a constituent act” (emphasis added) whereby the Framers “called into life” (note the God-language) a document that is more than a document, more than the sum of its language. The meaning of this document develops, grows, in ways that “could not have been foreseen completely by the most gifted of its begetters.” The Framers hadn’t simply composed a document; they had “had created an organism.”
The Holmesian Constitution is no longer simply a contract, to be construed by careful analysis of its language, whether ‘strict’ or ‘broad.’ Jeffersonian ‘strict construction’ versus Chief Justice John Marshall’s ‘broad construction’ both get brushed aside, as both are bound up in the verbal/contractarian framework. Rather, the new, historicized, ‘living,’ ‘organic’ Constitution must be interpreted historically, by which Holmes does not mean in line with the original intent of the Framers but “in the light of our whole [national] experience and not merely in [the light of] what was said one hundred years ago.” (“In the beginning was the Word? No! In the beginning was the Act!” The new Constitution is Faustian.)
With respect to exegesis, this means that a treaty can only be constitutionally limited if it flatly contradicts some specific “prohibitory words” of the document, some exact ‘Thou shalt not’ of its ‘creators’ or ‘begetters.’ But the vaguer language of the Tenth Amendment is not specifically prohibitory; the meaning of those words is changeable in ‘history,’ meaning in the course of the Constitution’s ‘organic development’ or ‘growth.’ “We must consider what this country [and with it, in the new, organic sense, the Constitution] has become in deciding what [the Tenth Amendment] has reserved [to the states].
Here is Holmes’s exegetical opening. The case now becomes an anticipation of what would be done with the commerce clause in the 1930s. The nation has evolved; corporations transcend state boundaries and so (in the issue before the Court here) do migratory birds. In both instances, social development including technology and commercial industrialism have posed problems in ways the states are no longer competent to solve. The treaty power, suitably ‘misread,’ can be used to solve this problem, reversing the original intent of the framers of the Tenth Amendment. Wedded to a commitment to American nationalism, the hierarchy of explicit over implicit reserved state powers follows from this new, historicist approach to Constitutional interpretation.
What validates this hierarchy? The Framers themselves, as well as Jefferson and even Marshall would reply: Nothing at all. To them, Holmes would be freebooting. ‘This is not constitutional construction at all,’ they would say, ‘except in the sense that Holmes is reconstructing our Constitution. This is not an exercise in contract law, the verbal analysis of a document with a stable meaning delivered by the language of the document itself.’
Thus Holmes abandons natural right, natural law, and contractarianism for natural history or evolutionary organicism. As it plays out in constitutional exegesis, this approach enables him to supersede the Framers intentions in a limited way: Where the Framers explicitly prohibit, he must still respect their intention. But where they are vague, or leave things unstated, he can silently contravene their intention.
What justifies this, in Holmes’s mind? “[W]hat was said a hundred years ago” most emphatically justifies nothing, he contends. But what was said at that time? Exactly one hundred years before 1920, the Missouri Compromised saved the old Constitution, the Constitution as understood by the Framers and by Jefferson and Marshall. But this salvation was only temporary. As Civil War veteran Oliver Wendell Holmes learned in his life’s formative experience, the old way of understanding the Constitution could not save the union the Constitution was intended to solemnize and reinforce. Holmes believes that organicism will better meld ‘nation’ and ‘Constitution’ to ensure an ever-strengthening Union, one that will never again disintegrate into the carnage of modern, techno-industrial war.
The old Constitutional order at best permitted only a temporary Missouri Compromise. Holmes’s new Constitutional order (enunciated, appropriately enough, in a case called MISSOURI v. Holland) brings forth what he hopes will be a permanent Missouri Synthesis, whereby a states-rights challenge to the national government is dialectically and ‘organically’ subsumed, not patched over. The past—the Constitution of “one hundred years ago”—is not authoritative. The true authority of the United States government is now and in the future, as America has grown and will grow.
It may seem faintly comic to load such weighty matters into a dispute over migratory birds. But Holmes might not have thought so. As any resident of Washington, D. C. would have known, in 1914 the last passenger pigeon died in its cage at the Washington Zoo. A major food source for earlier Americans, the seemingly numberless flocks of passenger pigeons had provided food for the burgeoning American populace as it extended its rule from one end of the continent to the other. The pigeon was a victim of precisely the same commercial-industrial economy that called for a rethinking of the commerce clause. This was also the political economy that had helped the United States to win the Civil War against the States-Righters of the Confederacy. How could a thoughtful man of Holmes’s generation not see these linkages: Union and the need for increased power over often-recalcitrant states; but, at the same time, the vast increase and then displacement of rural folk (simultaneous with the very destruction of one of their principal foods) in an industrializing economy, and the consequent need for the national management, the federally supervised conservation, of natural resources that know no conventional, ‘contractual’ state boundaries. Migratory Americans had extinguished a huge population of migratory birds; without nationwide governance from a centralized state, Americans themselves might eventually become extinct.
Quite apart from the question of the legitimacy of Holmes’s constitutional jurisprudence, however, the problem will be this: If you replace the deductive logic of the old constitutionalism with the dialectical logic of ‘growth,’ will not this Hegelian means result in the Hegelian end, a worldwide bureaucratic state? Where does that leave the self-government of “We the People”?
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