Mike Ramsey's post on Justice Thomas and the Indian Commerce Clause reminded me of something that I had written a couple of years ago about the matter. One question concerning the Indian Commerce Clause is whether it extends broadly beyond trade. Jack Balkin relied on statutes passed in 1790 and 1793, that among other things punished any crime against Indians, to conclude that the Clause had a broad meaning. John McGinnis and I briefly responded to this argument, noting some questions that Balkin left unanswered. We wrote that Balkin
Rel[ied] heavily on the enactment of a statute allegedly based on the Indian commerce clause as evidence of a broad meaning of the commerce clause, without explaining why it is not an expected application or a construction and without discussing the numerous alternative constitutional bases for the statute.70
The footnote continued:
Balkin argues that the meaning of commerce must include interactions because the Framers punished crimes of U.S. citizens against Indians in the Trade and Intercourse Acts. Id. at 156. Even assuming that Congress relied on the Indian commerce clause as authority for this statute, this event does not show more than this statute being an expected application of the clause, and Balkin else-where attacks the relevance of expected applications. But even this assumption that the Indian commerce clause was the basis for the statute is warranted only if the Constitution did not provide other authority to punish crimes against Indians. Yet, there are at least three other plausible bases of authority on which the Framers might have relied. As Anthony Bellia and Bradford Clark suggest, it is possible that “a nation became responsible under the law of nations for injuries that its citizens inflicted on aliens if it failed to provide an adequate means of redress—by punishing the wrongdoer criminally, extraditing the offender to the aggrieved nation, or imposing civil liability.” Anthony J. Bellia, Jr. & Bradford R. Clark, The Alien Tort Statute and the Law of Nations, 78 U. CHI. L. REV. 445, 450 (2011). The danger that unpunished crimes would put the United States in violation of the law of nations may well have caused the Framers to believe that they had the authority to impose criminal liability on offenses by their citizens against Indians under the authority to define and punish offenses against the law of nations. See U.S. CONST. art. I, § 8, cl. 10. Unpunished crimes against Indians could also give rise to war with Indian tribes. As a result, Congress may have believed that the combination of the war powers clause and the necessary and proper clause gave it the authority to punish these crimes to make it less probable that the nation would have to go war. U.S. CONST. art. 1, § 8, cl. 11; U.S. CONST. art. 1, § 8, cl. 18. Similar interpretations of the congressional war powers were offered by both Alexander Hamilton, writing as Pacificus, and James Madison, writing as Helvidius. 1 JAMES MADISON, Helvidius, in Answer to Pacificus, on President Washington’s Proclamation of Neutrality (April 22, 1793), in LETTERS AND OTHER WRITINGS OF JAMES MADISON 607 (1884). Finally, George Washington apparently wanted to maintain a policy of peace with the Indians. If that policy constituted the policy of the United States in a foreign affairs sense, it could have been enforced by Congress under its necessary and proper power to give effect to this foreign policy judgment. Similarly, the Neutrality Act has been “understood as a law carrying into execution the President’s residual power to set foreign policy”—in that case Washington’s policy of neutrality in the European wars of the time. See Prakash & Ramsey, supra note 41, at 353 n.538.
MIKE RAMSEY ADDS: Well, I agree with this footnote, especially the part that cites me, but I would also ask this question: Why do Balkin and others think the post-ratification statutes are so important? Congress (a Federalist Congress, i.e., one with a strong view of national power) passed a statute that assumed Congress had power to do what Congress wanted to do, without identifying the source of its power. That does not seem to prove much. Parts of the Judiciary Act of 1789 were held unconstitutional, probably correctly. I don't think we should assume that everything the post-ratification Congresses did was constitutional, especially when it was in their institutional self-interest and they did not think about it too closely. True, the post-ratification enactments are some evidence, but surely not conclusive evidence, of the Constitution's meaning. The explanation could be just that Congress was acting unconstitutionally. I'm not sure why anyone would find that implausible.
MIKE RAPPAPORT FURTHER ADDS: I agree with what Ramsey says. In another paper, I have criticized the use of legislation, passed at the time of a constitutional provision in these circumstances, as evidence of the meaning of the constitutional provision. I wrote:
All we know is that Congress passed a particular law, but we do not know whether it considered the Constitution, and if it did so, how carefully it did so, what its interpretation was, and how strong its arguments for that interpretation were. Overall, then, naked legislation of this type, without the clothing of an explicit constitutional interpretation, tells us very little about what the constitutional interpretation was and how much weight we should give to it.
Posted at 7:59 AM