Book Review

This book evokes a certain nostalgia. Most constitutional scholarship in recent decades has been driven more or less directly by the renewed judicial activism that began with the Warren Court. Constitutional history and theory has been centrally concerned with the types of social issues that have occupied the Court's attention in its most celebrated cases of the postwar period, such as Brown and Roe. Given the title of this book, a reader can be forgiven for coming to it expecting more of the same, especially given the clear parameters of debates over the primacy of "original intent" in constitutional interpretation. But Lynch is not primarily interested in enlisting in those debates with this book, and the author provides only a minimal sense of that extensive literature. Instead, Negotiating the Constitution evokes the constitutional debates of the New Deal era or even the fascinating arguments of the 1820s reacting to the Bank case and the Missouri Compromise.	1
In this book, Lynch is much less concerned with historical roots and antecedents of contemporary originalist theory than with defending a nationalist interpretation of the Constitution's necessary and proper clause. Such an argument hardly seemed necessary in the aftermath of the New Deal when the Court effectively abandoned any restrictions on congressional authority based on federalism concerns. But, as Lynch notes in his introduction and epilogue, the Rehnquist Court has recently revived the idea that some issues may be beyond the scope of national authority to address, and what was once old has become new again. The primary goal of the book is to demonstrate that "contrary to the opinion of the Court in Lopez, whether or not the powers of the federal government were 'few and defined,' as Madison would have it, was very much a debated question [in the early years of the republic]. And contrary to the view expressed in Printz, Hamilton's declaration in the Federalist regarding the narrow meaning of the Necessary and Proper Clause was completely belied by his post-ratification position on the validity of the bank bill" (7). This disagreement with the arguments of the current Court form the motivation rather than the structure of the book, which for the most part offers a detailed recounting of the debates over, and practice under, the necessary and proper clause from the Philadelphia convention of 1787 through the sixth Congress and the inauguration of Thomas Jefferson as president in 1801. One need not be persuaded that Lynch has accomplished the goal he laid out for himself in order to appreciate the thorough history he provides of the early constitutional debates.	2
The substantive chapters of the book carefully work through the convention debates over the scope of the new national government's power, the ratification debates over that issue, and most of the constitutional debates in the first decade of the government's operation under the new Constitution. These chapters trace individual contributions to the ongoing argument over national powers, often observing the slips and reversals in the positions of various individuals within and across these debates. They also place these, often fairly technical, constitutional arguments within their particular political contexts, arguing that interest was often more important than principle in determining the positions of the various participants. The book is fairly distinctive in tracing these debates through both the adoption of the Constitution and the early administrations under it, which are often treated separately.	3
Perhaps the most important chapter to the argument is the first, which traces the history of the necessary and proper clause within the Philadelphia convention. Given the limited available evidence, Lynch makes a plausible, if not convincing, case that the final textual language was the result of a careful compromise between the North and the South that deferred rather than settled the question of the extent of congressional powers. The language adopted was ambiguous and broad, but not so broad as to prevent the South from accepting the Constitution and believing the ratification debate promises of the Constitution's supporters that the clause only gave Congress incidental powers to carry out the enumerated ones. Lynch's discussion of the convention, as well as later constitutional debates, is marred, however, by his heavy-handed approach to political context and individual motivation. James Madison, in particular, is portrayed as readily manipulating his arguments to serve the political interests of his home state, and Lynch provides no sense of the ways in which these constitutional debates raised real problems of contested and uncertain political principle as well as clashing interests.	4
It is not clear what follows from Lynch's interpretation of the early political practice under the Constitution. In a sense, Lynch is offering a revised version of the New Deal myth of an original nationalist Constitution, but with Alexander Hamilton rather than John Marshall playing the role of the hero. But this revision creates some odd problems. In his judicial opinions, Marshall was at least unequivocal on the nationalist origins and nature of the Constitution. By focusing on these earlier political debates, however, Lynch simultaneously argues that the original Constitution is ambiguous on the scope of congressional powers and that it nonetheless authorizes broad national powers. So the anti-consolidationists were simply suckers for believing the assurances of the Constitution's proponents that congressional powers were limited and there was no general "sweeping" clause? The theoretical uncertainty is only aggravated by Lynch's fondness for quoting Hamilton's statement in the Federalist that "nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society." Lynch's historical argument that the authority of the Framers in constitutional debates often gave way to more pragmatic considerations sometimes borders on the rather different normative claim that a calculus of political utility should trump constitutional limitations on political power.	5
The book offers a good map of the early constitutional debates over congressional power for the uninitiated, but the basic story is familiar and this political interpretation tends to be reductionist. As an analysis of the politics of constitutional development, the book's triumphal conclusion that Hamilton "deserves the title of Father of Constitutional Law" seems misguided and anachronistic (227). Stopping as it does with the election of Jefferson, the book ignores the decidedly limited scope of the national government in the nineteenth century and the significance of the "constitutional revolution" of the early twentieth century for establishing the "Hamiltonian" Constitution that Lynch admires. As a consequence, the substantive chapters shed little light on his concluding point that "despite Madison and Jefferson" the modern Congress recognizes few constraints on its power (224).	6
Keith E. Whittington Princeton University

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