This article was originally presented at The Jacksonian Party.
This is an article of The Jacksonian Party.
On 25 MAY 2010 Glenn Reynolds linked to an interesting, indeed compelling, article by Nicholas Rosenkranz on The Subjects of the Constitution. This article will be followed with another on The Objects of the Constitution and a later book to explore this conception of judicial review of Constitutional law and cases. I have previously written on this topic looking at formulations of Constitutional Structure with Strictly constructed or not? In that I attempted to discern the differences between Strict Consturctionism, Originalism and Textualism. I do not come to this topic from the law perspective, per se, and have no legal training just some common man familiarity with law. The Constitution is, in and of, itself not law, save for the few crimes and penalties mentioned within the text (ex. Treason and Impeachment). The Constitution is a system of powers that are limited, enumerated, and sovereign within the limitations and enumerations, that is to say they are the exercise of sovereign power by the Nation of the United States of America. It is a system of how one makes and designs a government to make laws, how that government works and just who gets which powers. Thus it is a system of rules agreed upon by those who agree to abide by them and they state who they are in the Preamble. Note that the Preamble is a statement of those individuals and what they agree to do and only invoke the Constitution as one means to do so at the very end of their statement.
To me this is a form of mechanical design theory (Wikipedia, YMMV):
In economics and game theory, mechanism design is the study of designing rules of a game or system to achieve a specific outcome, even though each agent may be self-interested. This is done by setting up a structure in which agents have an incentive to behave according to the rules. The resulting mechanism is then said to implement the desired outcome. The strength of such a result depends on the solution concept used in the rules. It is related to metagame analysis, which uses the techniques of game theory to develop rules for a game.
Thusly the Constitution can be viewed via metagame analysis, and is a set of metarules for making the rules of a game, which we call the federal government and how it works internally and externally under the Law of Nations conception of Nation State structure.
Nicholas Rosenkranz utilizes Formal Grammar of the English Language with the Subject, Verb, Object agreement system as its basis thus forming a systemic functional grammar basis analysis of how Constitutional law cases should be evaluated. SFG is described thusly (Wikipedia, YMMV):
Systemic functional grammar (SFG) or systemic functional linguistics (SFL) is a model of grammar developed by Michael Halliday in the 1960s. It is part of a broad social semiotic approach to language called systemic linguistics. The term "systemic" refers to the view of language as "a network of systems, or interrelated sets of options for making meaning"; The term "functional" indicates that the approach is concerned with the contextualized, practical uses to which language is put, as opposed to formal grammar, which focuses on compositional semantics, syntax and word classes such as nouns and verbs.
Systemic functional grammar is concerned primarily with the choices the grammar makes available to speakers and writers. These choices relate speakers' and writers' intentions to the concrete forms of a language. Traditionally the "choices" are viewed in terms of either the content or the structure of the language used. In SFG, language is analysed in three different ways (strata): semantics, phonology, and lexicogrammar. SFG presents a view of language in terms of both structure (grammar) and words (lexis). The term "lexicogrammar" describes this combined approach.
Notice that such an analysis can be done fully within a mechanical design theory approach as Formal Grammar for English, and analysis from same, are mechanism design systems. In fact such a systemic analysis can yield structure beyond the mechanism, itself, and reveal much of the operation of the mechanism as designed via its grammatical composition. The article does not utilize the logical notation system that the metarules can be boiled down to, but sticks to a more conversational approach that is more a reminder of simple sentence construction classes than of a Law Review article (although it is gloriously footnoted throughout). Thus the objective of the actor is to present a highly coherent presentation of grammar as applied to the Constitution via the activity of presentation.
This analysis is one of the most compelling of the structural analysis reviews of the Constitution that I have run across as it gives an inherently logic-based review of the Constitution via its grammar and syntax. Thus a key change in judicial review that started with the Progressive Era in full swing was the movement away from the Supreme Court to say who violated the Constitution and when they did so. This shift from actors taking action at a discrete time starts with utilizing imprecise language for the basis of Supreme Court judicial reviews and even creates a blurring of the lines of who and when the Constitution to the point that statutes are seen as unconstitutional, not the actors who created such actions. As all actions are taken by an entity, for such an action to be unconstitutional, then the entity that is doing that is in violation of the Constitution by the enumerated and limited powers it defines. There are only three actors in the federal government: Congress (the Legislative Branch), the President (the Executive Branch) and the Supreme Court (the Judicial Branch). There are unconstitutional actions outside the federal government (the various limitations on the States), but for simplicity the systemic approach is used on the federal government and, once learned, then can be applied to all levels of Constitutional cases and law.
Modern Supreme Courts have moved from identifying actors, or who violates the Constitution, as a means to not get involved in political fights, by and large. That means the imprecision of their rulings can and do create confusion about just what is and is not Constitutional and on what basis. This means that proceedings that should be questioning a law's Constitutionality may be addressed to the wrong actor by plaintiffs, and the Supreme Court has allowed such proceedings which further confuse the issue of who violates the Constitution and when.
Thus, in something like the Raich case of medical marijuana in California, the defense team argued that the violation of the Commerce Clause was done by the Executive Branch. The Commerce Clause has a particular actor attached to it and that is Congress, thus any violation of the Commerce Clause in its extent of reach is not one of the Executive but the Legislative branch of government. By attempting a Due Process procedure case, they did not bring a Congressional power over-reach case. The difference is that in the Executive a singular action on a Constitutional law is the violation at one, singular time while in the Congressional instance the entire law is in violation from the moment it was passed. The Executive, when acting within all other Constitutional constraints cannot be the target of a Commerce Clause case: only the Legislative branch and Congress by name, have the power to utilize the Commerce Clause and direct others in how to execute it.
In trying to blame the Executive on over-reach and admitting that Congress had the power to regulate interstate commerce, the case against intrusion into intrastate commerce was not made as that would be argued as an over-reach of Congressional (not Executive) power and a direct violation of the Tenth Amendment. By making the procedure an enforcement case, the Raich case was not doomed to failure, but was doomed to see its Executive part of the case fail as they did not address the power being used at the direction of its holder, which was and is Congress. Not only did the Raich team make scant use of this argument, the Supreme Court only addresses it in a single footnote which, Mr. Rosenkranz rightly observes, should have been the opening statement of a judgement as it contained the subject, the who, of the power and the extent of that power as written in the Constitution.
In looking at the Depression era case of Wickard v. Filburn, the farmer producing wheat to for private purposes, which was upheld mainly due to the District Court not addressing the actual case and, instead, writing much about how the Agriculture Act had been campaigned for by Congress. Later United States v. Lopez would put some restrictions on the intrusion of federal interstate commerce as the prior case set no real limits on it and could be seen as an open door to federal intrusion into State sovereignty. In the Lopez and Raich case the government deployed the rubric of intrastate commerce if it 'significantly impacted' interstate commerce, and this has never been properly addressed as a concept in direct violation of the limited powers of Congress pertaining only to interstate commerce. Under a precise grammatical review would there be any question of this rubric even being valid? The power grant is exclusively for interstate commerce and the outcome of it is not given to the federal government to decide: there is to be equality of law and application between the States for commerce and the power is silent, thus not granting any power, on commerce within a State. The sovereign power grant for one aspect is singular and complete, outside of that there is nothing: no grant, no provision, no support whatsoever.
This view of the active voice parts of the Constitution with definite actors is a vital review of the concept and the subject, as it allows much of the imprecise, ill-worded and ill-conceived rulings to be examined as to their actual following of the logic of the grammatical construction of the Constitution itself. Those constructions have meaning as they are sovereign power grants by the people to their government for the Nation of the United States of America. When Courts, professional lawyers and professors of law attempt to cloud the language, to invite imprecise words and concepts into their everyday work with the Constitution we all begin to suffer as the meaning of the words and their sentences can be read clearly and easily by a layman. Congress used to cite their powers in the bills they authorized so there would be no question of the power grant, its source and its extent. By muddying that as a concept and no longer even bothering to include it, Bills and then Acts become unclear as to their power, their extent and the content of what is being done with that power.
I very much look forward to The Objects of the Constitution and the passive voice sections and Amendments to see where this analysis goes in those realms.