Jesse Cross (Independent) has posted National ‘Harmony’: An Inter-Branch Constitutional Principle and its Application to Diversity Jurisdiction (Nebraska Law Review, Vol. 93, p. 501, 2014, Forthcoming) on SSRN. Here is the abstract:

Most constitutional interpretation continues, in the words of John Hart Ely, to be “clause-bound” in nature: it presumes that each constitutional clause can be studied in isolation from each other clause. As a result of this shortsighted methodology, constitutional scholars have overlooked a single organizing metaphor that was used at the Constitutional Convention to shape a host of constitutional clauses scattered across Articles I and III: the metaphor of national “harmony.” Within the rhetoric of Enlightenment science, the term “harmony” was used in the Founding era to identify those forces that extended between the independent parts of a larger system – most notably, between the planets of the solar system. As this article shows, the Founders self-consciously borrowed from this rhetorical tradition, referencing national “harmony” to identify those matters that, much like the vectors of gravitational force that extend between independent planets, were observed to extend across multiple states. In this regard, the organizing metaphor of national “harmony” was used to articulate an overarching principle that animated many Article I and Article III powers: that federal power should apply to interstate matters.

This harmony-based view has substantive implications for many areas of constitutional law, including for Article III diversity jurisdiction. For example, it supports the constitutionality of congressional statutes that make broad use of diversity jurisdiction – statutes that some have argued are unconstitutional due to their use of federal courts to promote efficiency in interstate cases, even when these cases do not pose threats of local bias. The harmony-based view also suggests the need for reform of personal jurisdiction rules for federal courts – rules that have consistently prevented federal courts from handling much multistate litigation, and that thereby have prevented diversity jurisdiction from performing the full range of its intended functions. And this view casts new light upon twentieth-century developments in state court personal jurisdiction – developments that were the Court’s attempt in the postwar era to provide adequate judicial oversight of the newly emergent interstate economy (and therefore to compensate for Congress’s refusal to allow the federal courts to serve their originally intended role in our constitutional scheme).

For myself, I perfer “clause-bound” interpretation (what some might call “what the text actually says”) to a “metaphor” (even a metaphor the founding generation used).

That’s not to say that a founding-era metaphor, or a generalized goal of the founding era, isn’t relevant or useful.  It is part of the context in which the text was written, and thus can be important evidence of what the text means.

But a generalized goal, standing alone, only tells us so much.  There may be multiple ways of implementing a generalized goal.  There may be competing considerations that cause the framers to pursue the generalized goal only to any extent, not to its fullest.  The text is what tells us how, and to what extent, the framers implemented their generalized goal.  That’s why I don’t regaard “clause-bound” as an insult but rather as an appropriate direction: the clause (the text) is what binds, although its meaning may be determined by consulting multiple sources.

Michael D. Ramsey
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