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“Resolution VI”: the Virginia Plan and authority to resolve collective action problems under article I, section 8.

American courts have traditionally followed the general principle
of limited
enumerated

 federal power in determining the scope of national
authority. Recently, however, a group of influential constitutional
scholars such as
Jack Balkin

,
Robert Cooter

,
Andrew Koppelman

, Neil
Siegel and others have called for doing away with this traditional
principle and replacing it with the principle declared in Resolution VI
of the
Virginia Plan

. Originally introduced in the Philadelphia
Constitutional Convention, Resolution VI declares that federal power
should be construed to reach all matters involving the “general
interests of the Union,” those to which the “states separately
are incompetent” and those affecting national “harmony.”
Under this principle, Congress has power to regulate all collective
action problems of national importance. In support of their claim,
Resolution VI proponents argue that the members of the
Philadelphia
Convention

 adopted Resolution VI and sent the same to the Committee of
Detail with the expectation that the resulting text would be based on
this overriding principle of national power, and that the framers
accepted the text of Article I, Section 8 as the enactment of Resolution
VI. These scholars also claim (or rely on the claim) that Philadelphia
Convention member James Wilson publicly declared during the
ratification

 debates that the framers based Article I, Section 8 on the principle of
Resolution VI.

A close reading of the historical sources, however, shows that the
framers did not view Article I, Section 8 as having operationalized the
general principle of Resolution VI and authorizing federal action in all
cases in which the “states separately are incompetent.” In
fact, they expressly stated otherwise. Even more importantly, it turns
out that there is no historical evidence that Resolution VI played any
role whatsoever in James Wilson’s speech or anywhere else during
the ratification debates. Claims to the contrary are based on errors of
historical fact.

INTRODUCTION
  I. THE HISTORY OF RESOLUTION VI
     A. May, 1787
     B. July, 1787
        1. Roger Sherman's Proposal
        2. Gunning Bedford's Amendment
 II. CURRENT THEORIES OF "RESOLUTION VI"
     A. Textual Meaning v. Textual Construction
     B. The Claims of Resolution VI Advocates
III. RESOLUTION VI AND THE ORIGINAL INTENT OF THE FRAMERS
     A. The Intent Behind Resolution VI
     B. The Proposed Power of Incorporation in Cases When "Individual
        States May be Incompetent"
 IV. JACK BALKIN, ORIGINAL PUBLIC MEANING AND RESOLUTION VI
     A. James Wilson's "General Principle" of Federal Power
     B. The Two Versions of James Wilson's Speech
CONCLUSION

INTRODUCTION

Currently, the Supreme Court interprets federal power under Article
I, Section 8 in a manner that emphasizes both limited textual

enumeration

 (1) and the need for judicial maintenance of the line
between federal and state authority. (2) Recently, however, a group of
influential constitutional scholars including Jack Balkin, Robert
Cooter, Andrew Koppelman, Neil Siegel and others have suggested that
courts ought to embrace Resolution VI of the 1787 Virginia Plan as the
guiding principle for interpretation or construction of federal power
under Article I, Section 8. (3)
According to

prep.
1. As stated or indicated by; on the authority of:

2. In keeping with:

3.
 Resolution VI, federal
power should be construed to reach all matters involving the
“general interests of the Union,” those “to which the
States are separately incompetent” and those affecting national
“harmony.” (4) As described by most of its advocates,
Resolution VI authorizes Congress to regulate all collective action
problems of national importance. (5)

In support of their claims, Resolution VI scholars argue that the
members of the Philadelphia Convention adopted the resolution and sent
the same to the Committee of Detail with the expectation that the
resulting text would be based on this overriding principle of national
power, and that they accepted the text of Article I, Section 8 as the
enactment of Resolution VI. These scholars also claim (or rely on the
claim) that Philadelphia Convention member James Wilson publicly
declared during the ratification debates that the framers based Article
I, Section 8 on the principle of Resolution VI. A close reading of the
historical sources, however, shows that the framers did not view Article
I, Section 8 as having operationalized the general principle of
Resolution VI and allowing federal action in all cases in which the
“States are separately incompetent.” (6) In fact, they
expressly stated otherwise. (7) Even more importantly, it turns out that
there is no historical evidence that Resolution VI played any role
whatsoever during the ratification debates. Claims to the contrary are
based on an historical mistake.

As amended and ultimately adopted in the Philadelphia Constitution
Convention, Resolution VI declared that Congress should have power
“to
legislate

 in all Cases for the general Interests of the Union,
and also in those Cases to which the States are separately incompetent,
or in which the Harmony of the
United States
 officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world’s third largest country in population and the fourth largest country in area.
 may be interrupted by the
Exercise of individual Legislation.” (8)

According to the advocates of Resolution VI, power to
“legislate … in those Cases where the States are separately
incompetent” allows Congress to act in all cases affecting the
national interest that involve “collective action problems”
where states are unwilling or unable to act individually. (9) In fact,
according to Resolution VI, any subject affecting the “general
Interests of the Union,” or which cannot “competently” be
handled at a state level, or which affects the “Harmony of the
United States” falls within the scope of federal power. (10)

Although briefly and unsuccessfully raised at the time of the New
Deal, (11) the current advocacy of Resolution VI represents a new move
in the ongoing debate over the proper scope of national
regulatory
authority

. Under the
interpretive
   also in·ter·pre·ta·tive
adj.
Relating to or marked by interpretation; explanatory.


in·terpre·tive·ly adv.
 principle announced by Resolution VI,
courts should not be interpreting text and precedent in a manner that
maintains a line between state and federal responsibilities. Instead,
courts should simply determine whether the matter involves an issue of
national importance beyond the “competency” of the individual
states. Under this approach, all congressionally identified
“collective action problems” by definition fall within the
constitutional powers of Congress, regardless of subject matter and
regardless of the intrusion into matters traditionally left to state
control. (12)

If adopted, this approach would mark a dramatic departure from the
current
jurisprudence
 , study of the nature and the origin and development of law.
 of the
United States Supreme Court
 see Supreme Court, United States.
. For more than
seventy years, the opinions of Chief Justice John Marshall in
McCulloch
v. Maryland

 case decided in 1819 by the U.S. Supreme Court, dealing specifically with the constitutionality of a Congress-chartered corporation, and more generally with the dispersion of power between state and federal governments.
 (13) and
Gibbons v. Ogden
 case decided in 1824 by the U.S. Supreme Court. Aaron Ogden, the plaintiff, had purchased an interest in the monopoly to operate steamboats that New York state had granted to Robert Fulton and Robert Livingston.
 (14) have served as the foundation
for judicial construction of federal power. (15) John Marshall’s
interpretive approach in these two cases has proven capacious enough to
justify the post-New Deal regulatory state (16) while at the same time
preserving the basic concept of limited and enumerated federal power.
(17) Although McCulloch is probably best known for its broad reading of
the Necessary and Proper Clause, (18) and
Gibbons

 for its broad reading
of commerce, (19) both decisions expressly embraced the concept of
limited, enumerated power and federalism-based reservations of local
regulatory autonomy. (20) According to Marshall, “[t]he enumeration
presupposes something not enumerated,” (21) and in both McCulloch
and Gibbons he suggested a number of subjects and legal categories that
remained beyond the legitimate reach of Article I, Section 8’s
limited delegation of federal authority. (22) This ”
flip side


to Marshall’s otherwise generous reading of federal power informs
the current Supreme Court’s limited reading of the
Interstate
Commerce

 Clause (23) and its preservation of areas traditionally left to
the exclusive control of the states. (24) This reading of federal power
reflects a principle that extends back to the ratification of the
Constitution. As James Madison explained in
Federalist
  
n.
1. An advocate of federalism.

2. Federalist A member or supporter of the Federalist Party.

adj.
1. Of or relating to federalism or its advocates.

2.
 No. 14, “the
general government is not to be charged with the whole power of making
and administering laws. Its jurisdiction is limited to certain
enumerated objects.” (25) Thus, as broad as contemporary judicial
construction of federal power may be, the mere failure of individual
state action on an issue of national interest (a so-called
“collective action problem”) cannot by itself justify an
assertion of federal authority unless that authority can be derived from
the textual enumeration of Article I, Section 8 in a manner that
preserves areas of judicially
protected state

 autonomy. (26)

Given the long-standing principle of enumerated power, the
traditional limited reading of cases like McCulloch and Gibbons, and the
fact that Resolution VI is not part of the Constitution, advocates of
Resolution VI carry a heavy persuasive burden if they wish to establish
an altogether new principle of national power. (27) The claim most
commonly made on behalf of Resolution VI is that it represents a
principle embraced by the Framers themselves. (28) According to this
argument, the members of the Philadelphia Constitutional Convention
adopted Resolution VI and sent the same to the Committee of Detail with
the expectation that the resulting constitutional text would
operationalize the Convention’s adopted understanding of the proper
scope of national power. (29) Because Resolution VI represented
framers’ understanding of the proper scope of national power,
courts may legitimately rely on Resolution VI as an interpretive guide
to constructing the delegated powers of Article I.” (30)

In some ways, this is a surprising argument. Very few scholars
today accept the search for framers’ intent as a persuasive or even
workable approach to constitutional interpretation.” (31) Original
intent originalism has been subjected to a
withering
  
adj.
Tending to overwhelm or destroy; devastating:


with
 line of scholarly
criticism for more than two decades and has been abandoned by most
contemporary
originalist
  
n.
The belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it.


o·rig
 constitutional theorists. (32) Not only is it
difficult to identify an aggregated “intent,” there seems to
be little normative justification for’ judicial entrenchment of the
framers intent, however determined. (33) The framers themselves, for
example, rejected such an idea and sought to keep their deliberations
secret. (34) Thus, any argument in support of Resolution VI which is
based on original framers’ intent carries the double burden of both
proving this was the actual intent of the framers and establishing that
this is a normatively attractive approach to interpreting the text of
the Constitution. (35)

The form of originalism currently employed by most originalist
theorists seeks the original public meaning of the text. (36) Not only
does this approach avoid a number of methodological and normative
difficulties associated with original intent originalism, it also
appears to be the originalist theory adopted by a majority of the
current Supreme Court. (37) Under this approach, evidence of
framers’ intent could be used as evidence of how
words and phrases

 were publicly used and understood at the time of ratification. (38) The
best evidence, however, would show how the ratification debates included
discussion (and acceptance) of Resolution VI as the operative principle
behind Article I, Section 8. For example, Yale Professor Jack Balkin has
recently claimed that, during the ratification debates, framer James
Wilson publicly declared that the framers intended Resolution VI to
serve as the underlying principle of Article I, Section 8. (39) If
Wilson actually made such an argument, such evidence allows a case to be
made in terms of original public understanding and not just (potentially
secret) framers’ intent. (40)

In fact, James Wilson made no such claim about Resolution VI.
Balkin’s assertion to the contrary is based on an error of
historical fact.41 It turns out that Resolution VI was never once
discussed during the ratification debates. (42) As far as the
Philadelphia framing debates are concerned, the members themselves
expressly denied that the adoption of Article I, Section 8 had the
effect of granting Congress the power to act in cases of national
importance where “the states are separately incompetent.” (43)
Advocates of Resolution VI have completely missed this critical
post-Article I, Section 8 discussion of national power. Thus, even if
one can solve the problems of original intent originalism, there is no
evidence that either the framers or the ratifiers believed that
Resolution VI continued to operate in principle or in fact following the
adoption of Article I, Section 8.

Part I of this article explores the history of Resolution VI during
the framing debates in the Philadelphia Constitutional Convention. Part
II considers and clarifies the theories of Resolution VI advocates,
including those based on both original intent and original meaning. Part
III considers whether the evidence supports a claim that the framers
intended Resolution VI to inform the construction of federal power under
Article I, Section 8. Finally, Part IV considers the claim that
Resolution VI became part of the public debate as state conventions
considered whether to
ratify
 v. to confirm and adopt the act of another even though it was not approved beforehand. Example: An employee for Holsinger’s Hardware orders carpentry equipment from Phillips Screws and Nails although the employee was not authorized to buy anything.
 the proposed Constitution.

I. THE HISTORY OF RESOLUTION VI

A. May, 1787

Resolution VI was part of the Virginia Plan submitted to the
Philadelphia Constitutional Convention by Virginia delegate
Edmund
Randolph

 on May 29, 1787. The original sixth resolution of that Plan
stated in part:

   [T]he National Legislature ought to be [e]mpowered to enjoy the
   Legislative Rights vested in Congress by the Confederation &
   moreover to legislate in all cases to which the separate States
   are incompetent, or in which the harmony of the United States may
   be interrupted by the exercise of individual Legislation.... (44)

The members first discussed Resolution VI on May 31, 1787. (45)

Charles Pinckney

 and
John Rutledge

 both “objected to the vagueness
of the term incompetent, and said they could not well decide how to vote
until they should see an exact enumeration of the powers comprehended by
this definition.” (46)
South Carolina
 state of the SE United States. It is bordered by North Carolina (N), the Atlantic Ocean (SE), and Georgia (SW).
Facts and Figures

Area, 31,055 sq mi (80,432 sq km). Pop. (2000) 4,012,012, a 15.
 delegate
Pierce Butler

 feared
that “we were running into an extreme in taking away the powers of
the States,” and he asked Edmund Randolph to explain “the
extent of his meaning.” (47)

In response, Randolph “disclaimed any intention to give
indefinite powers to the national Legislature” and insisted that
“he was entirely opposed to such an
inroad
  
n.
1. A hostile invasion; a raid.

2. An advance, especially at another’s expense; an encroachment. Often used in the plural:
 on the State
jurisdictions.” (48) However, it was too early in the debates to
try and specify the proposed powers of the national government.
According to Randolph, “it would be impossible to define the powers
and the length to which the federal Legislature ought to extend just at
this time.” (49) According to James Madison, the convention had
been “wandering from one thing to another without seeming to be
settled in any one principle.” (50) For the convention to move
forward, Madison advised, “it was necessary to adopt some general
principles on which we should act.” (51) The assembly quickly
disposed of the matter and voted 9-0 (with one state delegation split)
in favor of “giving powers, in cases to which the States are not
competent” and accepted the additional clauses “giving powers
necessary to preserve harmony among the States…. with[ou]t debate or
dissent.” (52)

B. July, 1787

It was not until mid-July, more than a month later, when the
Convention returned to Resolution VI and discussed federal power
“to legislate in all cases to which the separate States are
incompetent; or in which the harmony of the U.S. may be interrupted by
the exercise of individual legislation.” (53) By that time, the
Convention had debated and settled some of the most critical issues of
the Convention. The New Jersey Plan, which proposed only a minor
increase in federal power, had been debated and rejected. (54) Likewise,
Alexander Hamilton’s “British Plan” (55) which envisioned
a complete consolidation of the states into a single national government
had been debated and subsequently ignored in favor of the “first
plan” (Virginia’s). (56) The greatest symbol of the
Convention’s commitment to following a course somewhere between
complete nationalism and mere confederation was the adoption of the
“great compromise” which
apportioned
  
tr.v. ap·por·tioned, ap·por·tion·ing, ap·por·tions
To divide and assign according to a plan; allot:  
 the House by population
but provided states equal representation in the Senate. (57) With the

stumbling block

n.
An obstacle or impediment.


Noun

any obstacle that prevents something from taking place or progressing

Noun 1.
 of representation now behind them, the assembly could
now move towards defining the proposed powers of the federal government.

On July 16th, the Convention resumed its discussion of Resolution
VI. Starting where he had left off, Pierce Butler “call[ed] for
some explanation of the extent of this power; particularly of the word
incompetent. The vagueness of the terms rendered it impossible for any
precise judgment to be formed.” (58) Echoing earlier counsels of
patience, Massachusetts delegate
Nathaniel Gorham

 replied that the time
for precision had not yet come and that, until it did, it was better to
leave the principle undefined. As Gorham explained, “It] he
vagueness of the terms constitutes the
propriety
  
n. pl. pro·pri·e·ties
1. The quality of being proper; appropriateness.

2. Conformity to prevailing customs and usages.

3. proprieties The usages and customs of polite society.
 of them. We are now
establishing general principles, to be extended
hereafter

 into details
which will be precise & explicit.” (59)

John Rutledge chaffed at the continued delay and “urged the
objection started by Mr. Butler and moved that the clause be should be
committed to the end that a specification of the powers comprised in the
general terms, might be reported.” (60) This time, Rutledge and
Butler had more members on their side. The vote on Rutledge’s
motion to
recommit
  
tr.v. re·com·mit·ted, re·com·mit·ting, re·com·mits
1. To commit again.

2. To refer (proposed legislation, for example) to a committee again.
 ended in a tie, 5-5, (61) which had the effect of
maintaining the
status quo

. It was clear, however, that after more than
a month there was a growing desire to define the powers of the national
government. (62)

1. Roger Sherman’s Proposal

The next day, on July 17th, Connecticut’s Roger Sherman moved
to replace the wording of Resolution VI with the following:

   To make laws binding on the People of the United States in all
   cases which may concern the common interests of the Union: but not
   to interfere with the government of the individual States in any
   matters of internal police which respect the government of such
   States only, and wherein the general welfare of the United States
   is not concerned. (63)

This was not so much an amendment as it was a complete revision of
Resolution VI. The original proposal said nothing about power to
regulate for “the common interest.” Resolution VI instead
limited congressional power to those matters beyond the
“competency” of the states or which somehow threatened
national “harmony.” Also, there had been nothing in Resolution
VI about limiting such power in order to protect the retained powers of
the states in matters of “internal police.” Sherman’s
proposal amounted to an altogether different formulation of the
principle that should guide the ultimate division of state and federal
powers.

James Wilson immediately seconded Sherman’s proposal and
described the new language “as better expressing the general
principle.” (64) Mr. Morris, on the other hand, opposed
Sherman’s language on the ground that States would claim
independent
police powers
 n. from the 10th Amendment to the Constitution, which reserves to the states the rights and powers “not delegated to the United States” which include protection of the welfare, safety, health and even morals of the public.
 that “ought to be infringed in many
cases.” (65)

Morris’s objection prompted Sherman to clarify the scope of
federal power under his amended Resolution. Accordingly, “in
explanation of his ideas,” Sherman “read an enumeration of
powers, including the power of levying taxes on trade, but not the power
of direct taxation.” (66) Morris
pounced
  
v. pounced, pounc·ing, pounc·es

v.intr.
1. To spring or swoop with intent to seize someone or something:
 on this omission and wryly
suggested that, since taxes on consumption would be deficient, “it
must have been the meaning of Mr. Sherman, that the Genl. Govt. should
recur to quotas & requisitions, which are subversive of the idea of
Govt.” (67) Finding himself on the defensive, Sherman conceded that
“[s]ome provision … must be made for supplying the deficiency of
other taxation, but he had not formed any.” (68)

According to Jack Rakove, Sherman’s fellows probably
considered such an omission to be “a fatal defect” in his
plan. (69) Sherman’s proposed amendment to Resolution VI failed on
a vote of 2-8, with Wilson joining the Pennsylvania delegation’s
negative vote. (70)

2. Gunning Bedford’s Amendment

Immediately following Sherman’s failed amendment, Delaware
delegate
Gunning Bedford

 moved to alter the language of Resolution VI so
that it read: “[T]o legislate in all cases for the general
interests of the Union, and also in those to which the States are
separately incompetent…. or in which the harmony of the U. States may
be interrupted by the exercise of individual Legislation.” (71)

Edmund Randolph, who originally submitted Resolution VI, was
uncomfortable with the suggested change since “[i]t involves the
power of violating all the laws and constitutions of the States, and of

intermeddling
  
intr.v. in·ter·med·dled, in·ter·med·dling, in·ter·med·dles
To interfere in the affairs of others, often officiously; meddle.
 with their police. The last member of the sentence is
(also)
superfluous
  
adj.
Being beyond what is required or sufficient.


[Middle English, from Old French superflueux, from Latin superfluus, from superfluere, to overflow :
, being included in the first.” (72) Bedford
responded that the change did not amount to any expansion of federal
power over that of Randolph’s original proposal. (73) As Bedford
explained, since Randolph’s proposal anticipated that “no
State being separately competent to legislate for the general interest
of the Union,” Bedford’s own proposal was not “more
extensive or formidable than the clause as it stands.” (74) The
record does not reflect any discussion of Randolph’s point
regarding the “superfluous” control of matters affecting the
“harmony” of the United States. Instead, the convention passed
Bedford’s motion to amend the language of Resolution VI by a single
vote (6-4). (75) Next, the convention voted on Bedford’s proposed
language, which passed on a vote of 8-2. (76)

This was the final discussion of Resolution VI before the assembly
sent the language to the Committee of Detail on July 23, 1787. (77) What
emerged from that Committee is the familiar list of
enumerated powers

 contained in Article I, Section 8. Resolution VI was never mentioned
again during the Convention, nor was the Resolution mentioned at any
time during the ratification debates. The proceedings of the Convention
were kept secret at the time and were not made public for several
decades. (78) Accounts of the Convention proceedings and the submission
of Resolution VI of the Virginia Plan first appeared in 1821 with the
publication of Convention Secretary William Jackson’s Journal of
the Convention. (79) The first constitutional
treatise

 by
St. George
Tucker

 makes no mention of Resolution VI, (80) and, to the extent that
the Resolution is mentioned in later nineteenth century treatises, it is
only as part of the story of the Convention and is never presented as a
principle or rule for interpreting federal power. (81)

No eighteenth or nineteenth century state or federal judicial
opinion mentions Resolution VI. In fact, Resolution VI does not first
appear in the U.S. Reports until more than a century later when cited in
a 1908 dissent by Justice
William Henry

 Moody. (82) Justice Oliver
Wendell Holmes may have referred to Resolution VI in the 1920 case

Missouri v. Holland

, (83) but no Supreme Court majority clearly refers
to Resolution VI until 1936 and the decision in Carter v. Carter Coal
Co. (84) when the Court raised the Resolution only to dismiss it as a
reliable guide to constitutional interpretation. (85)

Of the framers themselves, we have but one available comment on the
convention’s use of Resolution VI, that of James Madison. Writing
in response to John Taylor’s 1833 accusation of a secret plan in
the Philadelphia Convention to eradicate the sovereign existence of the
states–an accusation based in part on revelations regarding the
convention’s adoption of Resolution VI–Madison explained:

      Let it next be seen what were the powers proposed to be lodged
   in the Govt. as distributed among its several Departments.

      The Legislature, each branch possessing a right to originate
   acts, was to enjoy 1. the Legislative rights vested in the Congs.
   of the Confederation, (This must be free from objection, especially
   as the powers of that description were left to the selection of the
   Convention.

      2. cases to which the several States, would be incompetent or in
   which the harmony of the U. S. might be intercepted by individual
   Legislation. (It can not be supposed that these descriptive phrases
   were to be left in their indefinite extent to Legislative
   discretion. A selection & definition of the cases embraced by them
   was to be the task of the Convention. If there could be any doubt
   that this was intended, & so understood by the Convention, it would
   be removed by the course of proceeding on them as recorded, in its
   Journal. many of the propositions made in the Convention, fall
   within this remark: being, as is not unusual general in their
   phrase, but if adopted to be reduced to their proper shape &
   specification. (86)

According to Madison, Resolution VI was no more than a placeholder
of sorts, adopted with the expectation that its scope would be later
defined through the adoption of a list of enumerated powers. (87) In
this way, the scope of federal power would not be left to
“Legislative discretion.”

II. CURRENT THEORIES OF “RESOLUTION VI”

Despite the lack of textual inclusion and historical reliance, a
growing number of contemporary constitutional scholars claim that
Resolution VI ought to inform the proper interpretation of
constitutionally enumerated federal powers. The interpretive method by
which Resolution VI is brought to bear on contemporary issues of federal
power varies. Some scholars adopt a purely instrumentalist methodology
and use Resolution VI as representing an early and wise approach to
determining the scope of national power, regardless of the original
understanding of the Constitution. (88) Others scholars claim that
Resolution VI somehow informed the original meaning of the text itself.
Some scholars in this latter group rely on original framers’
intent, while others rely on a combination of original framers’
intent and original public understanding. I will analyze each of these
originalist approaches in detail below. Before doing so, however, it is
important to understand how none of these approaches actually involve an
interpretation of the actual text of the Constitution.

A. Textual Meaning v. Textual Construction

One of the major advances in current originalist methodology
involves the distinction between the determining the semantic meaning of
a text and determining the legal effect of that text. (89) The former
involves an effort of textual interpretation and the latter involves the
application of a rule of construction. Both textual meaning and possible
construction or application may have been part of the discussion
surrounding the adoption of a text. Nevertheless, determining the
textual meaning of the words is not the same thing as determining how
those words, once understood, should be applied in a particular legal
dispute.

This distinction between interpretation and construction has a long
history in law (90) and it was well understood by Founding-era
constitutional theorists. (91) Construction generally comes into play in
situations where a degree of textual meaning can be assigned, but some
remaining aspects of the text remain ambiguous or vague, at least in
terms of how the text might apply in particular case. (92) So, for
example, we might be able to identify a certain non-controversial core
meaning to the phrase “commerce among the several states”
(such as the movement of commercial products from one state to another),
but not know with certainty whether commercially-produced air pollution
which moves across state lines falls within the original understanding
of the text. Applying the text to this latter situation requires an act
of construction. Construction of a text cannot
contradict
  
v. con·tra·dict·ed, con·tra·dict·ing, con·tra·dicts

v.tr.
1. To assert or express the opposite of (a statement).

2. To deny the statement of. See Synonyms at deny.
 the identified
core textual meaning of a text, but the construction itself is not
itself part of that identified textual meaning.

B. The Claims of Resolution VI Advocates

Defining the difference between meaning and construction may seem
an odd detour into linguistic theory, but it is an important
distinction. It is not always clear whether Resolution VI theorists are
making claims about the meaning of constitutional text, or the proper
construction or application of constitutional text. Andrew Koppelman,
for example, claims that Resolution VI was “translated by the
Committee of Detail into the present enumeration of powers in Article I,
Section 8, which was accepted as a functional equivalent by the
Convention without much discussion.” (93) Similarly, Jack Balkin
claims that “the purpose of enumeration was not to
displace
  
tr.v. dis·placed, dis·plac·ing, dis·plac·es
1. To move or shift from the usual place or position, especially to force to leave a homeland:
 the
principle [of Resolution VI] but to enact it.” (94) These appear to
be strong claims regarding the relationship between the principle of
Resolution VI and the meaning of Article I, Section 8. If taken at full
value, such claims appear to present a “replacement theory”
whereby the text of Article I, Section 8, because it carries the same
meaning as Resolution VI, can simply be replaced by Resolution VI, with
no loss of meaning. (95)

If these scholars are claiming that the text of Article I, Section
8 literally (textually) means Resolution VI, then their claims are
simply
implausible
  
adj.
Difficult to believe; not plausible.


im·plausi·bil
. Whatever role Resolution VI played in the drafting
and adoption of the text of Article I, Section 8, it cannot serve as the
textual meaning of Article I, Section 8. No matter how hard one tries,
one cannot plausibly conclude, for example, that the words “no
Appropriation of Money to that Use shall be for a longer Term than two
Years” (96) literally means “[Congress shall have power] to
legislate in all cases for the general interests of the Union, and also
in those to which the States are separately incompetent, or in which the
harmony of the United States may be interrupted by the exercise of
individual legislation.” (97) No doubt, one could build an argument
explaining how this restriction on appropriations is consistent with the
principle announced in Resolution VI. But then, one can derive the
textual meaning of the military funding Clause without any recourse to
Resolution VI whatsoever. In fact, it is difficult to see how Resolution
VI in such a case provides any additional textual meaning whatsoever.
For those who continue to resist this point, flip it around–if we sent
Resolution VI to a thousand
linguists

 around the world and asked them to
translate the text into their native language, is it possible that any
of them would produce a text meaning “no appropriation of money to
that use shall be for a longer term than two years” (as would be
true if this actually were a “translation”)?

This may seem an obvious and trivial point, but it illustrates what
scholars likely mean when they claim that Article I, Section 8 is the
“translation,” “functional equivalent,” or “the
enactment” of Resolution VI. What they probably mean is that
Article I, Section 8 represents the framers’ conception of the
general principle (or concept) of
federalism

1 In political science, see federal government.

2 In U.S. history, see states’ rights.


federalism

Political system that binds a group of states into a larger, noncentralized, superior state while allowing them
 announced in Resolution VI.
(98) In cases where the meaning of a particular text (or conception)
remained ambiguous or unclear (which is probably not the case with the
military funding clause), any additional construction or application of
the text should be consistent with the general principle or concept from
which the text was derived.

Understood this way, Resolution VI advocates might be understood as
making a fairly common move in terms of constitutional construction.
American legal and political literature is thick with claims that the
Constitution as a whole, or particular clauses, should be construed to
reflect broader principles, such as those contained in the Preamble, or
in the Declaration of Independence. (99) But such claims are brought to
bear only in cases where the semantic meaning of a text is not clear. No
one calls on the Preamble or the Declaration of Independence to
determine the textual meaning of “each Senator shall have one
Vote.” (100) Similarly, in our case, Resolution VI advocates are
not calling on the court to use the Resolution to determine the meaning
of textually clear provisions such as the two-year military funding
restriction. Instead, the Resolution is called upon to assist the court
in construing the contested meaning of clauses such as those empowering
Congress to “regulate Commerce … among the several States.”
(101) Rules of construction apply in cases where the textual meaning is
not clear.

But the principle of federal power supposedly represented by
Resolution VI is only one of many possible principles or rules of
construction that might be brought to bear in applying the text of
Article I, Section 8 to a legal dispute. Other rules include federalist
rules of “strict construction,” (102) or institutional rules
of
judicial deference

, (103) or rules that maximize particular
conceptions of liberty. (104) Choosing Resolution VI (whatever its
meaning) over other possible rules of construction requires a normative
theory that justifies the use of Resolution VI. According to most
Resolution VI advocates, the fact that the Resolution reflects the
original intention of the framers and possibly the original public
understanding of Article I, Section 8 gives us good reason use that
principle as guide to contemporary construction of federal power. (105)
In the next section, I address whether the historical evidence supports
the claims of Resolution VI advocates under either form of originalism.

III. RESOLUTION VI AND THE ORIGINAL INTENT OF THE FRAMERS

Because Resolution VI was not added to the text of the
Constitution, and because its use was limited to the then-secret debates
framing in Philadelphia, any plausible originalist argument in favor of
using Resolution VI must rely on some form of original framers’
intent originalism. As we shall see, there is no evidence that
Resolution VI played any role in the public debates over the
ratification of the Constitution. (106) Therefore, the advocates of
Resolution VI must establish that the framers intended the text of
Article I, Section 8 to reflect and
conform to

 the over-arching
principle of Resolution VI.

Although an early phase of originalism purported to seek the
original intent of the framers, that approach has since been broadly
criticized on both normative and methodological grounds. (107) In terms
of methodology, it is difficult to
conceptualize
  
v. con·cep·tu·al·ized, con·cep·tu·al·iz·ing, con·cep·tu·al·iz·es

v.tr.
To form a concept or concepts of, and especially to interpret in a conceptual way:
 a single
“aggregated intent” of the framers. (108) And even if it were
possible to isolate “group intent,” there does not appear to
be any normative reason why courts should
entrench
   also in·trench
v. en·trenched, en·trench·ing, en·trench·es

v.tr.
1. To provide with a trench, especially for the purpose of fortifying or defending.

2.
 that intent as a
matter of constitutional law. (109) The framers themselves did not
have–and did not claim to have–any authority whatsoever to establish
fundamental law. That authority was held and exercised by the ratifiers
in the state ratifying conventions. As James Madison later explained

   [W]hatever veneration might be entertained for the body of men who
   formed our Constitution, the sense of that body could never be
   regarded as the oracular guide in expounding the Constitution. As
   the instrument came from them it was nothing more than the draft of
   a plan, nothing but a dead letter, until life and validity were
   breathed into it by the voice of the people, speaking through the
   several State Conventions. If we were to look, therefore, for the
   meaning of the instrument beyond the face of the instrument, we
   must look for it, not in the General Convention, which proposed,
   but in the State Conventions, which accepted and ratified the
   Constitution. (110)

The framers themselves did not believe their statements in
convention should play any role in the public debate, and accordingly
kept the proceedings secret. It is for this reason that scholars have
long criticized the search for the framers’ original intent as
inconsistent with the original intent of the framers. (113)

Actually, most originalists today agree with these criticisms. This
is why the mainstream of contemporary originalism today seeks the
original public meaning of the text, not the original intent of the
framers. (112) This is a far more plausible approach to originalism and
one that I address in some detail below. Nevertheless, because some
originalists still follow original intent originalism, (113) and because
all originalists (and all advocates of Resolution VI) (114) believe that
information regarding the framers’ understanding of their work is
at least relevant to understanding the public meaning of words and
phrases contained in the final text, it is worth exploring what we know,
and do not know, about the intentions of the members who framed and
adopted Resolution VI.

A. The Intent Behind Resolution VI

The framers’ intent argument regarding Resolution VI seems
simple enough: the framers intended Article I, Section 8 to be read in a
manner that effectuates the principles of Resolution VI. So, for
example, in its final form Resolution VI stated that Congress has power
“to legislate in all cases for the general Interests of the Union,
and also in those Cases to which the States are separately incompetent,
or in which the Harmony of the United States may be interrupted by the
Exercise of individual Legislation.” (115) If Article I is to fully

effectuate
  
tr.v. ef·fec·tu·at·ed, ef·fec·tu·at·ing, ef·fec·tu·ates
To bring about; effect.


[Medieval Latin effectu
 or “enact” the principle of Resolution VI, then
potentially any purported exercise of power under Article I that
involves “the general Interests of the Union,” or is a matter
“to which the States are separately incompetent,” or is a case
“in which the harmony of the United States may be interrupted by
the Exercise of individual Legislation,” is
presumptively
  
adj.
1. Providing a reasonable basis for belief or acceptance.

2. Founded on probability or presumption.


pre·sump
 constitutional.

Resolution VI advocates do not specify whether every clause in
Article I Section 8 should be read as the “functional
equivalent” or the “enactment” of Resolution VI, (116) or
whether only some of them should be read as a functional equivalents, or
whether none of them individually contains the full breadth of
Resolution VI but only the aggregated clauses contain the full breadth
of power represented by Resolution VI. (117) Most often, Resolution VI
scholars focus on the Commerce Clause (though not exclusively) and argue
that at least that clause should be read in a manner that fulfills the
principle of Resolution VI. (118) Thus, power to “regulate commerce
among the several states” should be read as allowing Congress to
regulate any matter involving the “general interests of the
Unions,” or collective action problems “to which the states
are incompetent” or “interrupt the harmony of the United
States.” (119) Again, it is unexplained how an entire Resolution,
one that supposedly informs the full text of Article I Section 8, can be
applied in full to one sentence in Section I.

But putting that aside, there is an even more fundamental
assumption made by Resolution VI advocates that is left unexplained.
These scholars presume that the framers intended Resolution VI to inform
the original meaning of Article I, Section 8, rather than intending that
Article I Section 8 inform the original meaning of Resolution VI. After
all, Resolution VI is itself an ambiguous provision. The framers could
have understood the Resolution to mean “Congress shall have power
to regulate all cases (now or hereafter) that involve the general
interests of the United States, or to which the states are incompetent
or which involve state legislation that interrupts national
harmony.” On the other hand, the framers may have understood
Resolution VI to mean “Congress shall have power to regulate all
cases (that this Convention will eventually determine are matters) that
involve the general interests of the United States, or to which the
states are incompetent, or involve state legislation that interrupts
national harmony.” The former would be a broad grant of
discretionary federal power. The latter understanding would make
Resolution VI a kind of placeholder until Congress ultimately went
through the difficult effort of defining those matters that a majority
of the convention believed ought to be placed under federal control.

This ambiguity in the meaning of Resolution VI is best described by
historian Jack Rakove:

   This open-ended language [of Resolution VI] may be interpreted in
   two ways. On the one hand, it may be viewed as an authentic formula
   for a national government whose legislative power would extend as
   its own discretion saw fit. On the other, it can also be read as a
   textual placeholder to be used so long as the great issue of
   representation remained unresolved, but then to be modified or even
   replaced by a list of particular powers. (120)

Rakove concludes, “the process that unfolded during [the
Committee of Detail’s] ten days of labor is better explained as an
effort to identify particular areas of governance where there were
‘general Interests of the Union,’ where the states were
‘separately incompetent,’ or where state legislation could
disrupt the national ‘Harmony.” (121) Although it is true that
no one in the convention objected to Article I, Section 8 as conflicting
with Resolution VI, the convention’s lack of objection could simply
reflect that framers consensus belief “that the scope of national

lawmaking
  
n.
One who makes or enacts laws; a legislator. Also called lawgiver.


lawmak
 would remain modest.” (122) As Rakove writes, even with
the addition of the Necessary and Proper Clause, “[t] here is no
reason to think that the framers believed [that Clause] would covertly
restore the broad discretionary conception of legislative power in the
Virginia Plan.” (123)
In other words

, simply because no one
objected to Article I, Section 8 does not mean that the text should be
construed to fit a broad conception of Resolution VI. If anything, the
abandonment of Resolution VI and the ultimate adoption of a text of
enumerated powers suggests that one ought not look to the Resolution VI
as declaring an
overarching
  
adj.
1. Forming an arch overhead or above:

2. Extending over or throughout:
 principle of constitutional construction.

Had the convention understood Resolution VI as controlling the
meaning of Article I, Section 8 and not the other way around, then once
having adopted Article I, Section 8, the convention would have
understood themselves as having granted Congress power to legislate (1)
in all cases involving the general interests of the Union, (2) in all
cases where the states were incompetent, and (3) in all cases where
state legislation interrupted national harmony. In fact, we know for
certain that the convention did not perceive itself as having conferred
such power on Congress.

B. The Proposed Power of Incorporation in Cases When
“Individual States May be Incompetent”

On August 6, 1787 the Committee of Detail presented the list of
enumerated powers which became Article I, Section 8 of the federal
Constitution. (124) Just over one month later, on September 14, the
Convention discussed whether to give Congress the power to grant
charters of incorporation. (125) The impetus for the discussion was
Madison’s belief that Congress would need to create corporations
for the building of an
interstate system

 of canals. (126)

If the members already believed Congress had the power to legislate
in “all cases involving the general interests of the Union,”
or in all cases where states were incompetent, or in cases where state
legislation interrupted national harmony, then the members would have
thought they already had such power. (127) From the following
conversation, it is clear they did not share such a belief, nor did they
believe the principle of Resolution VI informed the scope of power that
they had just conferred on Congress through the adoption of Article I,
Section 8.

Here is the discussion as noted by James Madison:

Mr. Madison suggested an
enlargement

n an increase in size.

enlargement, Dilantin,
n.pr See hyperplasia, gingival, Dilantin.

enlargement, idiopathic,
n
 of the motion into a power
“to grant charters of incorporation where the interest of the U. S.
might require & the legislative provisions of individual States may
be incompetent”. His primary object was however to secure an easy
communication between the States which the free intercourse now to be
opened, seemed to call for–The political obstacles being removed, a
removal of the natural ones as far as possible ought to follow. Mr.
Randolph 2ded. the proposition.

Mr King thought the power unnecessary.

Mr Wilson. It is necessary to prevent a State from obstructing the
general welfare.

Mr King–The States will be prejudiced and divided into parties by
it–In Philada. &
New York
 Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of
, It will be referred to the establishment
of a Bank, which has been a subject of contention in those Cities. In
other places it will be referred to mercantile monopolies.

Mr. Wilson mentioned the importance of facilitating by canals, the
communication with the Western Settlements–As to Banks he did not think
with Mr. King that the power in that point of view would excite the
prejudices & parties apprehended. As to mercantile monopolies they
are already included in the power to regulate trade.

Col: Mason was for limiting the power to the single case of Canals.
He was afraid of monopolies of every sort, which he did not think were
by any means already implied by the Constitution as supposed by Mr.
Wilson.

The motion being so modified as to admit a distinct question
specifying & limited to the case of canals.

N–H–no–Mas. no. Ct. no–N–J–no–Pa ay. Del. no–Md. no. Va.
ay. N–C–no–S–C. no–Geo. ay. [Ayes–3; noes–8.] (128)

In this short but important conversation, we learn a number of
things. First, no one in the convention thought that Congress had been
granted power to regulate matters in the “general interest of the
Union” or to which the states were incompetent. Otherwise,
Madison’s proposal “to grant charters of incorporation where
the interest of the U.S. might require & the legislative provisions
of individual States may be incompetent” (129) would be needless.

It also appears no one thought Congress had power to legislate in
cases where the actions of the states interrupted the harmony of the
United States. Wilson, for example, supported Madison’s proposal
because he thought Congress did not currently have power to
“prevent a State from obstructing the general welfare.” (130)
Unless we are to think that one can “obstruct the general
welfare” but not interrupt “the harmony of the United
States,” Wilson did not think that either power currently existed
anywhere under Article I, Section 8. In fact, it appears that
Wilson–surely one of the strongest supporters of broad federal
power–did not think Congress had power to incorporate a bank. Thus,
while his response regarding “mercantile monopolies” was that
Congress already had such power, his response to the Bank objection was
that granting such power would not cause as much objection in
Philadelphia and New York as Mr. King claimed. As for Col. George Mason,
he did not think even mercantile monopolies had been authorized under
Article I, Section 8. (131)

Had any member of the convention thought that Resolution VI was in
anyway still operative, either as a rule of construction or as the
“functional equivalent” of what they had accomplished in
adopting Article I, Section 8, surely someone would have answered
Madison’s concerns by pointing out that Congress already had the
power in all cases where “the legislative provisions of individual
States may be incompetent.” (132) No one, in fact, said a word
about Resolution VI, despite Madison’s use of the same language as
one of the critical provisions in Resolution VI–the one most often
relied upon by Resolution VI advocates. Instead, on a vote of 8 to 3,
the majority voted against adding the very power that Resolution VI
advocates claim the convention already thought it had enacted. (133)
Thus, it is simply not true that “there is no evidence that the
convention rejected the structural principle stated in Resolution VI at
any point during its proceedings.” (134) The debates over the
incorporation power confirm that the Convention had in fact abandoned
Resolution VI in favor of a limited set of enumerated powers.

Some Resolution VI advocates might object that we ought not be
bound by the expected application of a principle originally adopted at
the time of the Founding. However, even if it makes sense to adopt the
text of Resolution VI because that was the framers’ intention, but
nevertheless reject the framers’ intent regarding the scope of
their own principle, this objection still misses the thrust of the above
dialogue. The rejection of the power of incorporation even in cases
“where the interest of the U. S. might require & the
legislative provisions of individual States may be incompetent”
(135) shows that the convention had not adopted the general structural
principle of Resolution VI when they abandoned that language in favor of
the enumerated powers of Article I, Section 8.

In sum, we do not know whether the Convention as a whole, or any
individual member of the convention, understood Resolution VI as
anything more than a placeholder. There is no evidence that any member,
much less a majority, thought that Article I, Section 8 was the
“functional equivalent” or “the enactment” of
Resolution VI. Instead, there is express evidence that the convention,
once it had adopted the enumerated powers of Article I, Section 8, did
not believe it had granted Congress power in “all cases where the
state are incompetent” (136) or where the actions of individual
states threaten to obstruct the harmony of the United States. At most,
members believed that the convention had empowered Congress in some
cases that the Convention believed required federal action.

IV. JACK BALKIN, ORIGINAL PUBLIC MEANING AND RESOLUTION VI

Perhaps we should not be looking for the framers intent at all.
After all, most originalists now seek the original meaning, or public
understanding, of the text. (137) According to this approach, the
meaning of a text is its likely public understanding at the time of its
adoption. Evidence of framers’ intent may or may not be helpful in
determining original public meaning, depending on whether the evidence
illuminates the ultimate public understanding of the text. Not only do
most (though not all) originalist scholars today adopt some form of
original public meaning originalism, this appears to be the form of
originalism preferred by a majority of the current Supreme Court. (138)

To date, only one scholar has presented evidence that could support
the claim that Resolution VI represented the public understanding of
Article I, Section 8. In a recent article, (139) and in his book, Living
Originalism, Yale Professor Jack Balkin argues that Resolution VI was
the ”
animating
  
tr.v. an·i·mat·ed, an·i·mat·ing, an·i·mates
1. To give life to; fill with life.

2. To impart interest or zest to; enliven:
 principle” behind the enumerated powers of
Article I and that this principle was part of the original understanding
of the text. (140) According to Balkin, Resolution VI is a critical
framework principle of the original Constitution, one that has
structured and justified the development of the modern regulatory state.
It is precisely because this framework principle can be traced back to
the original understanding of the Constitution that people today can and
should accept broad readings of federal power as “our law.”
(141)

As with other Resolution VI advocates, much of Balkin’s
argument is built on claims of original framers intent. For example,
Balkin argues that “the purpose of enumeration was not to displace
the principle [of Resolution VI] but to enact it.” (142) He does
not expressly say so, but it is clear from the context that he is
speaking of the framers’ purpose in enumerating the powers of
Article I. Sometimes Balkin’s reliance on original intent is clear,
as when he argues that Wilson’s speech at the Philadelphia
Ratifying Convention represented “the structural assumptions of the
drafters in Philadelphia.” (143) Other times, the reference to
framers’ intent must be constructed out of Balkin’s use of
passive language, as when he states that “[t]he structural
principle of Resolution VI … was designed to be adaptable to changing
circumstances,” (144) or where he argues that “all of
Congress’s powers were designed to realize the structural principle
of Resolution VI.” (145) The missing subjects in these sentences
are the framers in the Philadelphia Convention. As an argument of
original intent, Balkin’s reading fails for the same reasons
described in the previous section. There is no reason to think the
framers intended to “enact” Resolution VI at all, and strong
evidence suggesting they did not.

One of Balkin’s key arguments, however, moves beyond original
framers intent and attempts to tie Resolution VI to the original public
understanding of the text. In the opening of his discussion of
Resolution VI, Balkin relies on statements made by James Wilson in the
Pennsylvania Convention. According to Balkin, “[t]he basic
principles underlying the list of enumerated powers were well stated by
one of the key Founders, James Wilson, in the Pennsylvania ratifying
convention in November of 1787.” (146) Balkin then quotes Wilson:

   Whatever object of government is confined, in its operation and
   effects, within the bounds of a particular state, should be
   considered as belonging to the government of that state; whatever
   object of government extends, in its operation or effects, beyond
   the bounds of a particular state, should be considered as belonging
   to the government of the United States. (147)

According to Balkin, “Wilson was doing no more than
summarizing the structural assumptions of the drafters in Philadelphia.
The origins of Congress’s powers go back to the sixth of the
resolutions prepared by the Virginia delegation….” (148) Then, in
another key passage, Balkin explains:

   [T]here is no evidence that the convention rejected the structural
   principle stated in Resolution VI at any point during its
   proceedings. Indeed, this principle was the animating purpose of
   the list of enumerated powers that appeared in the final draft, and
   it was the key explanation that Framer James Wilson offered to the
   public when he defended the proposed Constitution at the
   Pennsylvania Ratifying Convention. Wilson was a member of the
   Committee of Detail and he would certainly have known if the
   Committee had abandoned the principle of Resolution VI. As Wilson
   explained, however, the purpose of enumeration was not to displace
   the principle but to enact it:

      [T]hough this principle be sound and satisfactory, its
      application to particular cases would be accompanied with much
      difficulty, because, in its application, room must be allowed
      for great discretionary latitude of construction of the
      principle. In order to lessen or remove the difficulty arising
      from discretionary construction on this subject, an enumeration
      of particular instances, in which the application of the
      principle ought to take place, has been attempted with much
      industry and care. (149)

Balkin’s use of James Wilson’s speech in the Pennsylvania
Convention marks an important departure from arguments based solely on
original intent. It allows him to make an argument that draws upon
evidence of both original intent and original public meaning. As Balkin
puts it in his general discussion of “structural
principles”–principles which the reader will learn include
Resolution VI–“[m]any of these structural principles were intended
by people who drafted the Constitution and they explained their ideas in
debates about the Constitution.” (150)

Balkin’s belief that Wilson was referring to Resolution VI
accomplishes a number of important tasks at once. First, without Wilson,
there is no evidence that the Committee of Detail understood the final
text as enacting the principle of Resolution VI. (151) As Jack Rakove
has pointed out, Resolution VI may have been intended as nothing more
than a placeholder with the members anticipating its ultimate
replacement with a more precise (and limited) statement of national
power. (152) We also know that this is quite likely the case, given the
discussion regarding the proposed power of incorporation. However, if
Wilson is in fact referring to Resolution VI as the guiding principle
for Article I, Section 8, then this would be evidence that at least one
member saw a connection between the Resolution and Article I.

Secondly, even if the language of Article I, Section 8 was in fact
viewed as following the principle of Resolution VI to the letter,
nothing in the records of the Convention tells us whether the framers
understood the Resolution as presenting a broad, moderate or narrow view
of federal power. For example, resolutions like that of Roger
Sherman’s could be viewed as extremely narrow (Sherman’s own
view) or quite broad (thus explaining why Wilson preferred
Sherman’s language until he heard Sherman’s explanation).
(153) Likewise, even the detailed language of Article I, Section 8 was
capable of broad or narrow readings, as we saw in the discussion
regarding the power of incorporation. (154) Thus, if James Wilson was
speaking about Resolution VI, and if his views are representative, then
his speech is evidence of a broad understanding of the Resolution’s
underlying principle. This would allow Balkin to resolve an otherwise
inescapable ambiguity regarding the framers’ vision of Resolution
VI.

Third, and
most importantly

, if Wilson publicly linked Resolution
VI to the final draft of the Constitution early in the ratification
debates, then this opens the door to claims that this understanding of
Article I, Section 8 was part of the public debates about the meaning of
the Constitution. (155) This would be an argument about original public
meaning, and not just an argument about original framers’ intent.
In other words, if Wilson was talking about Resolution VI, then this
overcomes the most serious problem with relying on a text presented in
the secret Philadelphia debates.

There is only one problem: Wilson was not speaking about Resolution
VI.

A. James Wilson’s “General Principle” of Federal
Power

It turns out that Resolution VI was never mentioned during the
Ratification Debates. This includes the speech of James Wilson in the
Pennsylvania Convention.156 As explained in the opening section of this
essay, Resolution VI was not publically known prior to the initial
publication of the Philadelphia debates–an event occurring years after
the adoption of the Constitution. (157) As far as I can tell from my
research, it was not until the twentieth century that anyone claimed
Resolution VI had anything to do with the meaning of Article I, Section
8. So what makes Balkin think otherwise?

Balkin has mistakenly assumed that, when James Wilson referred to
the “general principle” of federal power that guided the
drafting of Article I, Wilson was referring to the articulated principle
of Resolution VI. (158) He was not. Wilson was speaking of the general
principle articulated by Roger Sherman’s proposed
amendment–language that Wilson described at the time “as better
expressing the general principle.” (159) This becomes clear when
one compares the language of Resolution VI with that of Sherman’s
amendment and Wilson’s “general principle.”

Here is the final version of Resolution VI: “[T]o legislate in
all Cases for the general Interests of the Union, and also in those to
which the States are separately incompetent or in which the Harmony of
the United States may be interrupted by the Exercise of individual
Legislation.” (160)

Here is Sherman’s amendment:

   [T]o make laws binding on the people of the (United) States in all
   cases (which may concern the common interests of the Union); but
   not to interfere with (the Government of the individual States in
   any matters of internal police which respect the Govt. of such
   States only, and wherein the General) welfare of the U. States is
   not concerned. (161)

Here is Wilson’s “general principle” as quoted by
Balkin:

   Whatever object of government is confined, in its operation and
   effects, within the bounds of a particular state, should be
   considered as belonging to the government of that state; whatever
   object of government extends, in its operation or effects, beyond
   the bounds of a particular state, should be considered as belonging
   to the government of the United States. (162)

Wilson’s “general principle” is the same as
Sherman’s amendment; only the internal order of subjects is
reversed. Sherman’s amendment ends with powers reserved to the
states, while Wilson begins with powers reserved to the states. Both
Sherman and Wilson’s principle have the same structure and content.
They both address how powers are to be divided between the state and
national governments. They also both announce the same theory: matters
that involve only the internal concerns of a single state are reserved
to the state, while matters that involve the general interests of the
Union belong in the hands of the federal government. Resolution VI, on
the other hand, has completely different content and a completely
different structure. Its sole subject is federal power and the
Resolution lacks the “mirror image” structure of
Sherman’s and Wilson’s principles. Balkin has simply assumed
that Wilson must have been talking about the Convention’s generally
preferred version of the “general principle.” He was not.
Wilson was referring to his preferred version of the “general
principle,” the one Wilson thought was “better” than
Resolution VI.

One might think this makes little difference, since one could
construct a similar theory of federal power out of either Wilson’s
or the Convention’s preferred “general principles.” In
fact, Wilson’s preference of his own principles over that of the
Convention makes all the difference in the world in regard to whether
Resolution VI represents a publicly accepted principle of construction
for interpreting the enumerated powers of Article I. If Wilson was not
speaking of Resolution VI, then this means that there is no evidence
that Resolution VI was mentioned at all during the ratification debates.
This removes the only available argument that the language of Resolution
VI informed the public understanding of Article I, Section 8.

B. The Two Versions of James Wilson’s Speech

There is more. Professor Balkin invests a great deal of time
discussing the meaning of Wilson’s phrase “operations and
effects” in the belief that this is Wilson’s and the
framers’ phrase for describing the principle of Resolution VI.
(163) Indeed, the phrase “operations and effects” is one of
the subheadings of his article on Resolution VI and the Commerce Power.
(164) To Balkin, the term “operations” refers to
Congress’s traditional power to regulate “whatever crosses
state lines.” (165) The term “effects,” however, has much
broader implications. As Balkin puts it:

   What kinds of interactions have effects beyond a single state?
   These are interactions that create spillover effects or collective
   action problems. In the words of Resolution VI, commerce is "among
   the several states" when the states are "separately incompetent" to
   deal with a particular issue, "or [when] the Harmony of the United
   States may be interrupted by the Exercise of individual
   Legislation." (166)

This is a key passage in Balkin’s work. To Balkin, Wilson was
speaking about Resolution VI when he used the phrase “operations
and effects,” and that this reflected both the framers’
intentions and would have informed the public’s understanding of
Article I, Section 8. Balkin also quotes Wilson’s reported
declaration that “room must be allowed for great discretionary
latitude of construction of the principle” and concludes that
Wilson’s speech conclusively disproves claims by Professor
Randy
Barnett

 that the framers’ ultimately rejected Resolution VI. (167)

The problem is, we cannot be sure Wilson ever used the phrase
“operation and effects,” or, if he did, whether anyone outside
the Pennsylvania convention hall ever found out. It turns out that there
are two versions of James Wilson’s speech of November 24. Only one
of these versions contains the phrase “operations and effects”
and talks about “great discretionary latitude of
construction,” and this was not the version first published and

widely distributed

 after Wilson’s speech.

The first version of Wilson’s speech was a summary composed by

Alexander J. Dallas

 and published in the Pennsylvania Herald on November
28, 1787.168 On the same day, a longer version, also from Dallas’s
notes, was reprinted as a pamphlet and, as the
DHRC

DHRC Diversity & Human Rights Consortium
 puts it
“circulated throughout the country.” (169) By January 7, 1788,
Dallas’s version had been reprinted in eleven
newspapers in
Massachusetts

,
New Hampshire
 one of the New England states of the NE United States. It is bordered by Massachusetts (S), Vermont, with the Connecticut R. forming the boundary (W), the Canadian province of Quebec (NW), and Maine and a short strip of the Atlantic Ocean (E).
,
Rhode Island
 island, 15 mi (24 km) long and 5 mi (8 km) wide, S R.I., at the entrance to Narragansett Bay. It is the largest island in the state, with steep cliffs and excellent beaches.
, Connecticut, and New York.
(170) The pamphlet raised immediate objections by some of Wilson’s
supporters who claimed it was “very inaccurate, and not only parts
are omitted and the leading points often lost for want of seizing the
exact expression, but some parts are absolutely misstated.” (171)
Accordingly, Thomas Lloyd prepared a second version that promised to be
Wilson’s speech “without
mutilation

See also Brutality, Cruelty.

Mutiny (See REBELLION.)

Absyrtus

hacked to death; body pieces strewn about. [Gk. Myth.: Walsh Classical, 3]

Agatha, St.

had breasts cut off. [Christian Hagiog.
 or

misrepresentation

.” (172) This second version, however, was not
printed until February 7, 1788, well after the initial circulation and
responses to, Dallas’s initial version. (173)

Here is the relevant passage of Dallas’s initial and widely
circulated version of Wilson’s speech of November 24th:

   Another, and perhaps the most important obstacle to the proceedings
   of the Federal Convention arose in drawing the line between the
   national and the individual governments of the states.

      On this point a general principle readily occurred, that
   whatever object was confined in its nature and operation to a
   particular state ought to be subject to the separate government of
   the states, but whatever in its nature and operation extended
   beyond a particular state ought to be comprehended within the
   federal jurisdiction. The great difficulty, therefore, was the
   application of this general principle, for it was found
   impracticable to enumerate and distinguish the various objects to
   which it extended; and as the mathematics, only, are capable of
   demonstration, it ought not to be thought extraordinary that the
   Convention could not develop a subject involved in such endless
   complexity. If however, the proposed Constitution should be
   adopted, I trust that in the theory there will be found such
   harmony, and in the practice such mutual confidence between the
   national and individual governments, that every sentiment of
   jealousy and apprehension will be effectually destroyed. (174)

Just for comparison, here is the (somewhat longer) Thomas Lloyd
version of the same passage that was published months after the fact:

   They found themselves embarrassed with another of peculiar delicacy
   and importance; I mean that of drawing a proper line between the
   national government and the government of the several states. It
   was easy to discover a proper and satisfactory principle on the
   subject. Whatever object of government is confined in its operation
   and effects within the bounds of a particular state should be
   considered as belonging to the government of that state; whatever
   object of government extends in its operation or effects beyond the
   bounds of a particular state should be considered as belonging to
   the government of the United States. But though this principle be
   sound and satisfactory, its application to particular cases would
   be accompanied with much difficulty; because in its application,
   room must be allowed for great discretionary latitude of
   construction of the principle. In order to lessen or remove the
   difficulty arising from discretionary construction on this subject,
   an enumeration of particular instances, in which the application of
   the principle ought to take place, has been attempted with much
   industry and care. It is only in mathematical science that a line
   can be described with mathematical precision. But I flatter myself
   that upon the strictest investigation, the enumeration will be
   found to be safe and unexceptionable; and accurate too in as great
   a degree as accuracy can be expected in a subject of this nature.
   (175)

In the first and most widely circulated version, Wilson speaks of
“object[s] …
confined
  
v. con·fined, con·fin·ing, con·fines

v.tr.
1. To keep within bounds; restrict:  See Synonyms at limit.
 in [their] nature and operation,”
(176) not “operation and effects.” (177) Also, in the first
version, there is no mention of how “room must be allowed for great
discretionary latitude of construction of the principle,” (178) the
quote Balkin relies on in response to Barnett as proof that “the
purpose of enumeration was not to displace the principle but to enact
it.” (179) It may well be that Balkin is relying on the more
accurate account of Wilson’s actual speech–though we cannot know
that. (180) Even if so, this is not the version of Wilson’s speech
the public first saw printed in the newspaper days after the speech, nor
was this the version that the wider public saw as it was reprinted in
eleven different states from November 28, 1787 through February 7, 1788.
(181)

The version Balkin relies upon was not printed until months after
Wilson’s speech, long after almost all of the major commentary on
the speech had been written and published. (182) I have not found a
single newspaper that reported this later version of Wilson’s
speech, nor have I been able to locate a single example of anyone other
than Wilson who at any time during the ratification debates described
federal power as extending to those matters that in their
“operation and effects” extended beyond a single state. Given
that no one else repeated his views, it would be hard enough to
establish that the first version of Wilson’s speech played any role
in the public understanding of Article I, Section 8. (183) Establishing
such a point in regard to a second much later, and far less distributed,
version is even more unlikely.

In short, even if Balkin’s version of Wilson’s is the
more accurate, it cannot serve to establish a claim that Wilson believed
Resolution VI represented the general principle that informed the
drafting of Article I, Section 8, much less establish that Resolution VI
played any role in the ratification debates. Neither version of
Wilson’s speech contains any mention of Resolution VI, and the
version Balkin and others (184) rely on was not the version widely
distributed to the public. Thus, not only is there no evidence Wilson
was talking about Resolution VI, there is little reason to think his
discussion of “operation and effects” and the need to
“allow[] … for great discretionary latitude of construction of
the principle” (185) played any significant role in the public
debate and understanding of the text of Article I, Section 8–if in fact
Wilson actually used these words at all.

CONCLUSION

There may be, in fact, good instrumental or normative reasons to
move from a system of judicially limited enumerated power to one of

majoritarian
  
adj.
Based on majority rule:  

n.
An advocate of majoritarianism.
 oversight of national “harmony.” But such
arguments must stand on their own merits without the normative and
rhetorical assistance of originalism. Resolution VI never made it to the
text of the Constitution. Once the framers moved from general principle
to operative specifics they never mentioned Resolution VI again. Instead
they acted on the assumption that the federal government would not have
power to solve all collective action problems of national import. Most
of all, those who debated and adopted the text of Article I, Section 8
knew nothing about Resolution VI. Scholarly claims that James Wilson
publicly linked Article I, Section 8 to Resolution VI and congressional
power to regulate “operations and effects” are doubly
incorrect.

Instead, the available historical record tells a very different
story. When faced with Anti-Federalist claims that Article I, Section 8
would grant the national government unlimited power and eradicate the
sovereign independence of the states, the Federalists responded that the
text must be read as following a principle of limited enumerated power.
According to Hamilton in the New York Ratifying Convention,
“whatever is not expressly given to the federal head, is reserved
to the members.” (186) According to Charles Pinckney in the South
Carolina debates, “no powers could be executed, or assumed [by the
federal government], but such as were expressly delegated.” (187)
During the ratification debates, Madison insisted that the proposed
federal government’s “jurisdiction is limited to certain
enumerated objects,” (188) and in 1791 he reminded the House of
Representatives that the proponents of the Constitution had assured the
state conventions that “the general government could not exceed the
expressly-delegated powers.” (189) This principle of textual
enumeration presupposes the existence of other powers not enumerated and
reserved to the states. As John Marshall put it, “[t]he enumeration
presupposes something not enumerated.” (190) Marshall also

presciently
  
adj.
1. Of or relating to prescience.

2. Possessing prescience.


[French, from Old French, from Latin praesci
 noted that the struggle to identify the “line between
‘what is truly national and what is truly focal'” (191)
would “probably continue to arise, so long as our system shall
exist.” (192) The perpetual struggle to maintain this distinction
exists because the framers abandoned Resolution VI and adopted instead a
system of enumerated powers.

(1) Chief Justice John Marshall established the principle of
limited enumerated power. See McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316, 411 (1819) (noting that “a great substantive and independent
power” such as levying taxes required express enumeration and
“cannot be implied as incidental to other powers, or used as a
means of executing them”); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,
195 (1824) (“[T]he enumeration presupposes something not
enumerated….”). These two cases currently serve as foundational
precedents for the modern jurisprudence of federal power. For current
cases relying on the limited enumerated federal power reasoning of
Gibbons and McCulloch, see
infra
 prep.
 notes 2, 15-17, and 23-24.

(2) See, e.g.,
United States v. Morrison
 is a United States Supreme Court decision that examined the limits of Congress’s power to make laws under the Commerce Clause and the Fourteenth Amendment of the Constitution.
, 529 U.S. 598, 616 n.7,
617-18 (2000) (citing Gibbons and asserting that proper construction of
federal power “requires a distinction between what is truly
national and what is truly local”); see also United States v.
Comstock, 130 S. Ct. 1949, 1967-68 (2010) (Kennedy, J.
concurring
  
intr.v. con·curred, con·cur·ring, con·curs
1. To be of the same opinion; agree:  See Synonyms at assent.

2.
)
(discussing the Court’s Necessary and Proper jurisprudence,
including the decision in McCulloch v. Maryland and concluding
“[i]t is of fundamental importance to consider whether essential
attributes of state sovereignty are compromised by the assertion of
federal power under the Necessary and Proper Clause; if so, that is a
factor suggesting that the power is not one properly within the reach of
federal power”).

(3) See JACK M. BALKIN, LIVING ORIGINALISM 906 (2011);Jack M.
Balkin, Commerce, 109
MICH

. L. REV. 1, 6-15 (2010); Robert D.
Cooter
  
n. Lower Southern U.S.
1. An edible freshwater turtle of the genus Chrysemys.

2. Any of various turtles or tortoises. See Regional Note at goober.
 & Neil S. Siegel, Collective Action Federalism: A General Theory of
Article I, Section 8, 63 STAN. L. REV. 115, 123 (2011); Andrew
Koppelman, Bad News for Mail Robbers: The Obvious Constitutionality of
Health Care Reform, 121 YALE L.J. ONLINE 1, 12 (2011); David M. Metres,
Note, The National Impact Test: Applying
Principled
  
adj.
Based on, marked by, or manifesting principle:
 Commerce Clause
Analysis to Federal Environmental Regulation, 61 HASTINGS L.J. 1035,
1051 (2010);
Stephen F. Williams

,
Preemption

: First Principles, 103 NW.
U. L. REV. 323, 326 (2009); see also Donald H. Regan, How to Think About
the Federal Commerce Power and Incidentally Rewrite
United States v.
Lopez

 was the first United States Supreme Court case since the Great Depression to set limits to Congress’s power under the Commerce Clause of the United States Constitution.
, 94 MICH. L. REV. 554, 555 (1995) (arguing that Resolution VI
provides the correct interpretive framework for considerations of
federal power). Even when not made the focus of constitutional theory,
Resolution VI sometimes plays an oblique role in scholarly accounts of
federal power. Consider, for example, the following footnote in Akhil
Amar’s recent book on the American Constitution:

   Federal power over genuinely interstate and international affairs
   lay at the heart of the plan approved by the Philadelphia
   delegates. According to the Convention's general instructions to
   the midsummer Committee of Detail, which took upon itself the task
   of translating these instructions into the specific enumerations
   of Article I, Congress was to enjoy authority to "legislate in all
   Cases for the general Interests of the Union, and also in those
   Cases in which the States are separately incompetent, or in which
   the Harmony of the United States may be interrupted by the Exercise
   of individual Legislation."

AKHIL REED AMAR

, AMERICA’S CONSTITUTION 108 n.* (2005) (citing
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 131-32 (
Max Farrand

 ed., 1911)); see also Akhil Reed Amar, America’s Constitution and
the Yale School of Constitutional Interpretation, 115 YALE L.J. 1997,
2003 n.23 (2006) (reiterating the same point). One can also find
increasing use of Resolution VI in briefs filed before the United States
Court in cases involving the proper construction of federal power. See,
e.g., Brief of
Amicus Curiae

 Constitutional Accountability Center in
Support of Appellees and Affirmance at 6, Seven-Sky v. Holder, 661 F.3d
1 (D.C. Cir. 2011) (No. 11-5047) 2011 WL; Brief of
Amici

 Curiae State
Legislators in Support of Defendants-Appellants at 3, 10-11, U.S. Dept.
of Health & Human Servs. v. Florida, 648 F.3d 1235 (11th Cir. 2011)
(Nos. 11-11021-HH, 11-11067-HH), 2011 WL 1461595 (arguing that court
should use Resolution VI as a guide to interpreting the scope of federal
power); Brief of Amicus Curiae Constitutional Accountability Center in
Support of Appellant and Reversal at 4,
Virginia v

. Sebelius, 656 F.3d
253 (4th Cir. 2011) (Nos. 11-057, 11-1058), 2011 WL 792217 (same).

(4) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21 (Max
Farrand ed., 1911) [
hereinafter
  
adv.
In a following part of this document, statement, or book.


Adverb

Formal or law from this point on in this document, matter, or case

Adv. 1.
 FARRAND’S RECORDS] (Journal of the
Convention).

(5) See, e.g., Cooter & Siegel,
supra

 note 3, at 115.

(6) 2 FARRAND’S RECORDS, supra note 4, at 21.

(7) See infra note 124 and accompanying text.

(8) 2 FARRAND’S RECORDS, supra note 4, at 131-32. The original
Resolution VI did not include language referring to power to
“legislate in all cases for the general interests of the
Union.” Gunning Bedford successfully proposed the final amended
language on July 17, 1787. See id. at 21.

(9) See Balkin, supra note 3, at 12-13; Jack M. Balkin, The
Reconstruction Power, 85 N.Y.U.L. REv. 1801, 1809 (2010); Cooter &
Siegel, supra note 3, at 117; Koppelman, supra note 3, at 12-15.

(10) See Balkin, supra note 3, at 12-15.

(11) Compare Robert L. Stern, That Commerce Which Concerns More
States Than One, 47
HARV

HARV High Altitude Research Vehicle
HARV High Altitude Reconnaissance Vehicle
. L. REV. 1335, 1337-38, 1366 (1934) (arguing
that courts should rely on Resolution VI), with Carter v. Carter Coal
Co., 298 U.S. 238, 257-58 (1936) (acknowledging Resolution VI only to
reject it as a principle of constitutional interpretation). Although
later New Deal Cases rejected the narrow view of federal power embraced
by the majority of Carter Coal, no Supreme Court majority has ever
accepted the invitation to rely on Resolution VI.

(12) According to Andrew Koppelman, for example, “Congress has
the authority to solve problems that the states cannot separately solve.
It can choose any reasonable means to do that.” Koppelman, supra
note 3, at 3. Similarly, Professor Jack Balkin claims that the
Interstate Commerce Clause “gives Congress the ability to solve
problems that it reasonably believes to exist.” Balkin, supra note
3, at 33. In an accompanying footnote, Balkin further clarifies that
“a reasonableness test applies to two different questions: The
first is whether there is a sufficient
spillover
  
n.
1. The act or an instance of spilling over.

2. An amount or quantity spilled over.

3. A side effect arising from or as if from an unpredicted source:
 effect, collective
action problem, or other effect on interstate commerce to justify
regulation. The second is whether Congress’s choice of regulation
is sufficiently adapted to achieving its purposes in regulating.”
Id. at 33 n.121. Although this appears to limit congressional power to
matters involving “interstate commerce,” Balkin believes that
“commerce” includes any “interaction,” whether
social, commercial or otherwise, that affects the national interest. See
id. at 15-29. Thus, any interaction occurring in the states that
Congress reasonably views as affecting the nation as a whole would be
subject to federal regulation. Under such a view, the text of the
Constitution and judicial enforcement of the same plays no more than a
trivial role.

(13) 17 U.S. (4 Wheat.) 316 (1819).

(14) 22 U.S. (9 Wheat.) 1 (1824).

(15) Compare, e.g.,
Hammer v. Dagenhart

, 247 U.S. 251, 269-70
(1918) (
invalidating
  
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.


in·val
 congressional regulation of local labor standards),
with United States v. Darby, 312 U.S. 100, 113 (1941) (upholding the
same with repeated citations to Gibbons). According to New Deal Justice

Felix Frankfurter

, Chief Justice Marshall’s declaration in
McCulloch that “it is a constitution we are
expounding
  
v. ex·pound·ed, ex·pound·ing, ex·pounds

v.tr.
1. To give a detailed statement of; set forth:

2.
” was
the “most important, single sentence in American Constitutional
Law.” DR. HARLAN B. PHILLIPS, FELIX FRANKFURTER REMINISCES 166
(Harlan B. Phillips ed., 1960). The contemporary Supreme Court continues
to look to McCulloch and Gibbons as representing a particularly
authoritative approach to interpreting Article I, Section 8. See, e.g.,
United States v. Lopez, 514 U.S. 549, 568 (1995) (Kennedy, J.,
concurring) (describing Chief Justice John Marshall’s decision in
Gibbons as “an early and authoritative recognition that the
Commerce Clause grants Congress extensive power and ample discretion to
determine its appropriate exercise”).

(16) See, e.g., Wickard v. Filhurn, 317 U.S. 111, 120 (1942)
(“[Gibbons] described the federal commerce power with a breadth
never yet exceeded.”).

(17) See Gibbons, 22 U.S. (9 Wheat.) at 203 (“Inspection laws,

quarantine
 , isolation of persons, animals, places, and effects that carry or are suspected of harboring communicable disease.
 laws, health laws of every description, as well as laws for
regulating the internal commerce of a State” are but a small part
“of that immense mass of legislation … not surrendered to the
general government.”); see also, United States v. Lopez, 514 U.S.
549, 566 (1995) (citing both McCulloch and Gibbons as presenting a
limited vision of federal power which reserves areas of local or state
regulatory autonomy).

(18) McCulloch, 17 U.S. (4 Wheat.) at 421 (“Let the end be
legitimate, let it he within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the
Constitution, are constitutional.”)

(19) Gibbons, 22 U.S. (9 Wheat.) at 193 (“To what commerce
does this power extend? The Constitution informs us, to commerce
‘with foreign nations, and among the several States, and with the
Indian tribes.’ It has, we believe, been universally admitted, that
these words comprehend every species of commercial intercourse between
the United States and foreign nations.”) (quoting U.S.
CONST

CONST Constitution
CONST Under Construction
CONST Commission for Constitutional Affairs and European Governance  
. art.
I, [section] 8, cl. 3)).

(20) For a general discussion of Marshall’s view of broad yet
limited enumerated federal power, see III-IV G.
EDWARD WHITE

,
HISTORY OF
THE SUPREME COURT OF THE UNITED STATES

: THE MARSHALL COURT AND CULTURAL
CHANGE, 1815-35, at 541-67 (Paul A. Freund & Stanley A. Katz eds.,
1988). By “federalism,” I refer to
entrenched
   also in·trench
v. en·trenched, en·trench·ing, en·trench·es

v.tr.
1. To provide with a trench, especially for the purpose of fortifying or defending.

2.
 and judicially
enforceable distinctions between matters local and matters national. See
id. at 566 (discussing Marshall’s view of the Court’s role in
limiting the scope of enumerated federal power and preserving the line
between state and national power). It is important to distinguish
constitutional federalism from the related principle of
subsidiarity

Noun

the principle of taking political decisions at the lowest practical level

Noun 1. subsidiarity – secondary importance
subordinateness
 that suggests leaving regulatory control at the lowest efficient level.
Subsidiarity is not a doctrine of entrenched constitutional principle
but one that leaves the ultimate decision of regulatory control in the
hands of national political majorities and counsels judicial deference
to the same. See
Stephen Breyer

, Making Our Democracy Work: The Yale
Lectures, 120 YALE L.J. 1999, 2024 (2011) (distinguishing federalism
from the related idea of “subsidiarity,” and describing the
latter as “the idea of placing authority to carry out a particular
public task in the hands of the smallest unit able effectively to
perform it”). Thus, while advocates of Resolution VI sometimes
speak as if they are preserving a distinction between national and local
authority, the distinction is left in the hands of national political
majorities. See supra note 12.

(21) Gibbons, 22 U.S. (9 Wheat.) at 195.

(22) See Gibbons, 22 U.S. (9 Wheat.) at 203 (“[Inspection
laws] form a portion of that immense mass of legislation, which embraces
every thing within the territory of a State, not surrendered to the
general government: all which can be most advantageously exercised by
the States themselves. Inspection laws, quarantine laws, health laws of
every description, as well as laws for regulating the internal commerce
of a State, and those which respect
turnpike
 road paid for partly or wholly by fees collected from travelers at tollgates. It derives its name from the hinged bar that prevented passage through such a gate until the toll was paid. See also road.
 roads, ferries, &c.,
are component parts of this mass.”); McCulloch, 17 U.S. (4 Wheat.)
at 411 (noting that a “great substantive and independent
power” such as levying taxes required express enumeration and
“cannot be implied as incidental to other powers, or used as a
means of executing them”); id. at 423 (indicating that the Court
would
invalidate
  
tr.v. in·val·i·dat·ed, in·val·i·dat·ing, in·val·i·dates
To make invalid; nullify.


in·val
 any pretextual use of congressional power “for the
accomplishment of objects not entrusted to the government”).

(23) See, e.g., United States v. Lopez, 514 U.S. 549, 566 (1995)
(citing Marshall’s reasoning in McCulloch and Gibbons in support of
federalism-protective rules of constitutional construction).

(24) See United States v. Morrison, 529 U.S. 598, 616 n.7, 617-18
(2000) (citing the state regulatory autonomy language of Gibbons and
repeating the assertion in Lopez that proper construction of federal
power “requires a distinction between what is truly national and
what is truly local”); see also United States v. Comstock, 130 S.
Ct. 1949, 1967-68 (2010) (Kennedy, J., concurring) (discussing the
Court’s Necessary and Proper jurisprudence, including the decision
in McCulloch and concluding “[i]t is of fundamental importance to
consider whether essential attributes of state sovereignty are
compromised by the assertion of federal power under the Necessary and
Proper Clause; if so, that is a factor suggesting that the power is not
one properly within the reach of federal power”).

(25) THE FEDERALIST NO. 14, at 102 (James Madison) (Clinton
Rossiter ed., 1961).

(26) The clearest example of this would be the Court’s
decision to invalidate the take-title provisions of the Low-Level
Radioactive Waste Policy Act in
New York v. United States

, 505 U.S. 144,
174-77 (1992), despite the fact that Congress was responding to a
failure of individual states to make provision for the storage of

hazardous waste

Any solid, liquid, or gaseous waste materials that, if improperly managed or disposed of, may pose substantial hazards to human health and the environment. Every industrial country in the world has had problems with managing hazardous wastes.
, thus creating a national problem of interstate movement
of hazardous waste. Here is how Justice Kennedy recently summarized the
Supreme Court’s long-standing embrace of both federalism and broad
federal power:

   It is correct in one sense to say that if the National Government
   has the power to act under the Necessary and Proper Clause then
   that power is not one reserved to the States. But the precepts of
   federalism embodied in the Constitution inform which powers are
   properly exercised by the National Government in the first place.
   It is of fundamental importance to consider whether essential
   attributes of state sovereignty are compromised by the assertion of
   federal power under the Necessary and Proper Clause; if so, that is
   a factor suggesting that the power is not one properly within the
   reach of federal power.

United States v. Comstock, 130 S. Ct. 1949, 1967-68 (2010)
(Kennedy, J., concurring) (citations omitted).

(27) Although advocates of Resolution VI do not seek to
overrule

 cases like McCulloch and Gibbons, the general claim is that both these
precedents and the text of Article I, Section 8 should be read in a
manner that effectuates the principle of Resolution VI. See, e.g.,
Balkin, supra note 3, at 33 & n.121; Cooter & Siegel, supra note
3, at 180-81; Koppelman, supra note 3, at 18. The principle thus takes
primacy of place.

(28) All of the sources cited in note 3, supra, rely, either in
whole or in part, on a theory of original framers’ intent. The
reliance is inevitable given the fact that only the framers in the
Philadelphia Convention knew about Resolution VI at the time of the
Founding. Even Cooter and Siegel, who otherwise focus on instrumentalist
reasons for adopting the principle of Resolution VI, nevertheless argue
that the principle is grounded in the original intention of the framers.
See Cooter & Siegel, supra note 3, at 121 (“The structure of
governance established by the
Articles of Confederation

 often prevented
the states from acting collectively to pursue their common interests.
Solving these problems of collective action was a central reason for
calling the Constitutional Convention. These facts bear on the proper
interpretation of the constitution that emerged from the
Convention….”) (footnotes omitted).

(29) See Balkin, supra note 3, at 8-11; Koppelman, supra note 3, at
12; Stern, supra note 11, at 1340.

(30) See, e.g., Balkin, supra note 3, at 12 (“The list of
enumerated powers was designed so that the new federal government would
have power to
pass laws

 on subjects and concerning problems that are
federal by nature; that is, problems that require a federal solution, as
opposed to national problems that occur in many places, but that do not
require coordinated action and a single approach. This is the key
insight of Resolution VI, and it is still true to this day.”);
Koppelman, supra note 3, at 12 (suggesting that, rather than enforce a
distinction between economic and noneconomic activity, “[a] better
rule would implement the line that the Framers of the Constitution
drew”); Stern, supra note 11, at 1366 (“The Court can avoid
the possibility of placing the nation in a defenseless position by
returning to the original conception of the commerce clause….”).
This is not to say that all Resolution VI advocates themselves are
wedded to the methodology of original framers’ intent originalism.
For example, in his recent book, Jack Balkin distinguishes his
structural arguments from those based on original public meaning,
original understanding, or original intent. See BALKIN, supra note 3, at
906-07. Like other Resolution VI advocates, however, Balkin insists that
the framers intended Article I, Section 8 to be the textual enactment of
Resolution VI. See infra notes 94, 142 and accompanying text.

(31) See Lawrence B.
Solum
  
n. pl. so·la or so·lums
The upper layers of a soil profile in which topsoil formation occurs.


[Latin, base, ground.
, What is Originalism? The Evolution of
Contemporary Originalist Theory, in THE CHALLENGE Or ORIGINALISM 12, 12
(Grant Huscroft & Bradley W. Miller eds., 2011); see also Larry
Alexander & Saikrishna Prakash, “Is That English You’re
Speaking?” Why Intention Free Interpretation Is an
Impossibility

See also Unattainability.

belling the cat

mouse’s proposal for warning of cat’s approach; application fatal. [Gk. Lit.
,
41
SAN DIEGO
 , city (1990 pop. 1,110,549), seat of San Diego co., S Calif., on San Diego Bay; inc. 1850. San Diego includes the unincorporated communities of La Jolla and Spring Valley. Coronado is across the bay.
 L. REV. 967, 976 (2004) (“Whenever someone reads the
Constitution or any other text, he explicitly or implicitly does so with
an author in mind. And he has no choice but to do so.”).

(32) See, e.g., Paul Brest, The
Misconceived
  
tr.v. mis·con·ceived, mis·con·ceiv·ing, mis·con·ceives
To interpret incorrectly; misunderstand.


mis
 
Quest for

 the Original
Understanding, 60 B.U. L. REV. 204, 204-05 (1980); H.Jefferson Powell,
The Original Understanding of Original Intent, 98 HARV. L. REV. 885,
885-86 (1985).

(33) See supra note 32; see also Solum, supra note 31, at 17-19
(discussing criticism of original intent originalism).

(34) See
JacK N. RAKOVE

, ORIGINAL MEANINGS 13 (1996).

(35) As pointed out in note 30, supra, although not all Resolution
VI advocates embrace the theory of original intent originalism, all rely
on arguments based at least in part on claims of original framers’
intent.

(36) See Solum, supra note 31, at 22-23.

(37) See
District of Columbia
 federal district (2000 pop. 572,059, a 5.7% decrease in population since the 1990 census), 69 sq mi (179 sq km), on the east bank of the Potomac River, coextensive with the city of Washington, D.C. (the capital of the United States).
 v. Heller, 554 U.S. 570, 585 (2008);
McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010) (applying
Heller’s holding on the Second Amendment to the states through the

Fourteenth Amendment
 addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections.
Section 1

Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens
).

(38) All original intent theorists believe this by definition, and
all public meaning originalists accept that framers’ usage may be
evidence of contemporary semantic meaning, even if not
conclusive
evidence

. See Solum, supra note 31, at 19-20.

(39) See Balkin, supra note 3, at 8-9; see also infra note 146 and
accompanying text (highlighting the Wilson argument).

(40) Balkin himself does not expressly make such an argument,
though he does claim Resolution VI was discussed during the ratification
debates, and Wilson’s speech is the only evidence Balkin cites as
involving a discussion of Resolution VI during the ratification debates.
See infra note 148 and accompanying text; see also BALKIN, supra note 3,
at 1217 (“The framers and ratifiers may have stated a wide variety
of principles at various levels of scope and
generality
  
n. pl. gen·er·al·i·ties
1. The state or quality of being general.

2. An observation or principle having general application; a generalization.

3.
, or they may
have stated no principles at all that have come down to us. The proper
question, however, is what principles we should
ascribe
  
tr.v. as·cribed, as·crib·ing, as·cribes
1. To attribute to a specified cause, source, or origin:  
 to the text the
framers and ratifiers made into law.” (emphasis added)). Thus,
although Balkin distances himself from arguments based on original
meaning and original intent, he is clearly relying on what readers will
perceive as an argument based at least in part on original intent and
original understanding originalism. See, e.g., Cooter & Siegel,
supra note 3, at 120 n.8 (describing Balkin’s discussion of power
to address collective action problems in his Commerce article as
“especially concerned with the original public meaning of the
Commerce Clause”); Elizabeth B. Wydra, An Originalist Defense of
Health Care Reform, CONSTITUTIONAL ACCOUNTABILITY CENTER (Mar. 8, 2011),
http://www.theusconstitution.org/ blog.history/?p=2824 (describing the
author’s brief in Virginia v. Sebelius and its Balkin-inspired
description of Resolution VI as making an argument about the
“original meaning” of the Commerce and Necessary and Proper
Clauses). However Wilson’s speech fits into Balkin’s actual
theory of constitutional interpretation, there is no evidence that
Wilson said anything about Resolution VI during the ratification
debates. See infra note 158 and accompanying text.

(41) See infra Part IV.A.

(42) See infra Part IV.

(43) See infra Part III.B.

(44) 1 FARRAND’S RECORDS, supra note 4, at 21. The full text
of the original resolution read:

   Resolved that each branch ought to possess the right of originating
   Acts; that the National Legislature ought to be [e]mpowered to
   enjoy the Legislative Rights vested in Congress by the
   Confederation & moreover to legislate in all cases to which the
   separate States are incompetent, or in which the harmony of the
   United States may be interrupted by the exercise of individual
   Legislation; to negative all laws passed by the several States,
   contravening in the opinion of the National Legislature the
   articles of Union; and to call forth the force of the Union agst.
   any member of the Union failing to fulfill its duty under the
   articles thereof.

Id.

(45) Id. at 53 (Madison’s notes).

(46) Id.

(47) Id.

(48) Id.

(49) Id. at 60 (Pierce’s notes) (emphasis added).

(50) Id.

(51) Id. In fact, at this point Madison was growing increasingly
doubtful about the “practicability” of an “enumeration
and definition of the powers necessary to be exercised by the national
Legislature.” Id. at 53 (Madison’s notes).

(52) Id. at 53-54.

(53) 2 FARRAND’S RECORDS, supra note 4, at 17 (Madison’s
notes).

(54) 1 FARRAND’S RECORDS supra note 4, at 322 (Madison’s
notes).

(55) Id. at 282-93 (Madison’s notes). Hamilton himself viewed
his plan as suggested “amendments” to the Virginia Plan. See
id. at 291 (Madison’s notes).

(56) Id. at 327 (Yate’s notes). Hamilton’s plan expressly
called for the
erasure

 of state sovereignty. See id. at 283
(Madison’s notes) (“[N]o amendment of the confederation,
leaving the States in possession of their sovereignty could possibly
answer the purpose.”); id. at 323 (Madison’s notes) (“By
an abolition of the States, he meant that no boundary could be drawn
between the National & State Legislatures; that the former must
therefore have indefinite authority. If it were limited at all, the
rivalship of the States would gradually subvert it…. As States, he
thought they ought to be abolished.”). In fact, a number of members
rejected the idea that the states had ever enjoyed independent sovereign
status. See, e.g., id. at 323-24 (“Mr. King … doubted much the
practicability of
annihilating
  
v. an·ni·hi·lat·ed, an·ni·hi·lat·ing, an·ni·hi·lates

v.tr.
1.
a. To destroy completely:
 the States; but thought that much of
their power ought to be taken from them.”); id. at 324 (“Mr.
Wilson, could not admit the doctrine that when the Colonies became
independent of G. Britain, they became independent also of each other.
He read the declaration of Independence, observing thereon that the
United Colonies were declared to be free & independent States; and
inferring that they were independent, not Individually but Unitedly and
that they were confederated as they were independent, States.”);
see also id. (“Col. Hamilton, assented to the doctrine of Mr.
Wilson.”).

(57) For a discussion of the compromise over representation and its
importance to the success of the convention, see RAKOVE, supra note 34,
at 53-93.

(58) 2 FARRAND’S RECORDS, supra note 4, at 17 (Madison’s
notes).

(59) Id. In his notes, Madison spells Gorham’s name
“Ghorum.”

(60) Id. In his notes, Madison spells Rutledge’s name
“Rutlidge.”

(61) Id.

(62) According to Jack Rakove, even though the vote ended in a

stalemate
  
n.
1. A situation in which further action is blocked; a deadlock.

2. A drawing position in chess in which the king, although not in check, can move only into check and no other piece can move.

tr.v.
 and the continuation of the status quo, the fact that there
were now five votes in favor of replacing the Resolution with a list of
enumerated powers “already pointed to the course debate would
take.” See RAKOVE, supra note 34, at 178.

(63) 2 FARRAND’S RECORDS, supra note 4, at 21 (Journal), 25
(Madison’s notes).

(64) Id. at 26 (Madison’s notes).

(65) Id. (emphasis added).

(66) Id.

(67) Id.

(68) Id.

(69) RAKOVE, supra note 34, at 81.

(70) 2 FARRAND’S RECORDS, supra note 4, at 26 (Madison’s
notes).

(71) Id.

(72) Id.

(73) Id. at 27.

(74) Id.

(75) Id.

(76) Id.

(77) See id. at 95-96 (Madison’s notes). The Committee
consisted of Oliver Ellsworth (CT), Nathaniel Gorham (MA), Edmund
Randolph (VA),John Rutledge (SC), and James Wilson (PA). Id. at 97
(Journal).

(78) See RAKOVE, supra note 34, at 13.

(79) 3 JAMES MADISON, THE WRITINGS OF JAMES MADISON, COMPRISING HIS
PUBLIC PAPERS & HIS PRIVATE CORRESPONDENCE, INCLUDING HIS NUMEROUS
LETTERS & DOCUMENTS NOW FOR THE FIRST TIME PRINTED (
Gaillard Hunt

 ed., 1900), available at http://
oll.libertyfund.org/?option=com_staticxt&staficfile=show.php%3Ftitle= 1935&chapter=118621&layout=html&Itemid=27 (last visited
Mar. 7, 2012).

(80) See 1 ST. GEORGE TUCKER,
BLACKSTONE’S COMMENTARIES

 WITH
NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL
GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA, app. D
(Augustus M. Kelley 1969) (1803).

(81) For example, in his Commentaries, Joseph Story mentions
Resolution VI only as part of his discussion regarding the origins of
the power tax for the general welfare–language that Story believed was
borrowed from Resolution VI. See 2 JOSEPH STORY, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES
 document embodying the fundamental principles upon which the American republic is conducted. Drawn up at the Constitutional Convention in Philadelphia in 1787, the Constitution was signed on Sept.
, & 925 (Fred. B. Rothman & Co.
1991) (1833). Story says nothing about Resolution VI serving as a
principle for understanding delegated federal power. Other early
treatises say nothing at all about Resolution VI. See, e.g., PETER Du
PONCEAU, A BRIEF VIEW OF THE CONSTITUTION OF THE UNITED STATES (1834);
1-4
JAMES KENT

, COMMENTARIES ON AMERICAN LAW (Legal Classics Library
1986) (1826-1830); see also
WILLIAM RAWLE

, A VIEW OF THE
CONSTITUTION OF
THE UNITED STATES OF AMERICA

 79 (William S. Hein Co., Inc. 2003) (2d ed.
1829) (“The enumerated powers, which we now proceed to consider,
will be all found to relate to, and be consistent with, the main
principle; the common defen[se] and general welfare.”).

(82) The Emp’rs Liab. Cases, 207 U.S. 463, 521 (1908) (Moody,
J., dissenting).

(83) 252 U.S. 416, 433 (1820) (“What was said in that case
with regard to the powers of the States applies with equal force to the
powers of the nation in cases where the States individually are
incompetent to act.”).

(84) 298 U.S. 238 (1936).

(85) Id. at 292. See also Brief for the United States at 94 n.41,
A.L.A.
Schechter Poultry Corp. v. United States

, 295 U.S. 495 (1935)
(Nos. 854, 864), 1934 WL 31976, at 94-96 n.41 (discussing Resolution VI
and its later clarification).

(86) See 3 FARRAND’S RECORBS, supra note 4, app. A at 526-27
(quoting a letter from James Madison to
John Taylor

 that “appears
was not sent”) (second emphasis added).

(87) Madison’s letter seems to capture the broad sense of the
framers, even if Madison himself entertained “doubts” about
the “practicability” of enumeration early in the Convention.
See 1 FARRAND’S RECORDS, supra note 4, at 53 (Madison’s notes)
(“Mr. Madison said that he had brought with him into the Convention
a strong bias in favor of an enumeration and definition of the powers
necessary to be exercised by the national Legislature; but had also
brought doubts concerning its practicability. His wishes remained
unaltered; but his doubts had become stronger. What his opinion might
ultimately be he could not yet tell.”).

(88) See, e.g., Cooter & Siegel, supra note 3, at 123.

(89) See generally Lawrence B. Solum, The
Interpretation-Construction Distinction, 27 CONST. COMMENT. 95, 100–08
(2010) (explaining the difference between meaning and construction).

(90) See Lawrence B. Solum, Semantic Originalism 13-24 (Ill. Pub.
Law & Legal Theory Res. Papers Series, Paper No. 07-24, 2008),
available at http://papers.ssrn.com/ so13/papers.cfm?abstractid=1120244
(last visited Mar. 10, 2012).

(91) See, e.g’., JOHN TAYLOR, CONSTRUCTION CONSTRUED AND
CONSTITUTIONS VINDICATED 21-23 (Lawbook Exch. 1998) (1820); see also
Kurt T. Lash, Leaving the
Chisholm Trail
 route over which vast herds of cattle were driven from Texas to the railheads in Kansas after the Civil War. Its name is generally believed to come from Jesse Chisholm, a part-Cherokee trader who, in the spring of 1866, drove his wagon, heavily loaded
: The
Eleventh Amendment

 and the
Background Principle of Strict Construction, 50 WM. & MARY L. REV.
1577, 1604 (2009) (discussing, among other things, Founding period
concerns about unduly broad “constructions” of constitutional
text).

(92) See Solum, supra note 90, at 87 (discussing how
“construction is required” when “meaning runs out”).

(93) Koppelman, supra note 3, at 12 (emphases added).

(94) Balkin, supra note 3, at 11.

(95) Here, I refer to “meaning” as “textual
meaning.” See Solum, supra note 90, at 2-3 (discussing the possible
meanings of “meaning”). It is possible that the assertion
“Article I, Section 8 means Resolution VI” is not a claim of
textual meaning, but is instead a claim regarding the
teleological
  
n. pl. tel·e·ol·o·gies
1. The study of design or purpose in natural phenomena.

2. The use of ultimate purpose or design as a means of explaining phenomena.

3.
 purpose of Article I, Section 8. Id. (emphasis added). If so, then this
is a claim of original intent that I address in the next section.

(96) U.S. CONST. art. I, [section] 8, cl. 12.

(97) 2 FARRAND’S RECORDS, supra note 4, at 21 (Journal).

(98) I am using the concept-conception to mean that Resolution VI
represents a contested concept, with Article l, Section 8 representing
the Convention’s conception of the broader concept. See, e.g.,
Lawrence B. Solum, Legal Theory Lexicon: Concepts & Conceptions,
LEGAL THEORY BLOG (Jan. 2, 2011, 10:16 AM), http://Isolum.typepad.com/
egaltheory/2011/01/legal-theory-lexicon-concepts-conceptions.html.

(99) See, e.g., Amar, supra note 3, at 33 (explaining how the
Preamble provided a context for understanding the articles of the
Constitution).

(100) U.S. CONST. art. I, [section] 3, cl. 1. Though they might in
arguments seeking to remove that clause. See SANFORD LEVINSON, OUR
UNDEMOCRATIC CONSTITUTION 16 (2006).

(101) U.S. CONST. art. I, [section] 8, cl. 3.

(102) See, e.g., Lash, supra note 91, at 1598-99.

(103) See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH
111–98 (2d ed. 1986).

(104) See, e.g., RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION
53 (2004) (explaining the role of liberty in natural rights protected
under the Constitution).

(105) This is not to say that all Resolution VI advocates believe
that constitutional construction must always follow the original
intentions of the framers or the original public understanding of the
text. Some, in fact, expressly deny such restrictions on contemporary
construction of the Constitution. See BATON, supra note 3, at 906-07.
Nevertheless, all Resolution VI advocates use evidence of framers intent
to
legitimize
  
tr.v. le·git·i·mized, le·git·i·miz·ing, le·git·i·miz·es
To legitimate.


le·git
 and support their argument in favor of contemporary
reliance on Resolution VI. See supra notes 3, 30. Reliance on original
intent or original meaning is not, of course, self-legitimating; use of
original intentions or original understandings as guides to construction
must itself be justified. For the purposes of this article, I explore
only whether the originalist claims regarding Resolution VI meet the
requirements of
internal consistency

 in terms of being supported by
available historical evidence.

(106) See infra Part IV.A.

(107) See supra notes 31, 32 and accompanying text.

(108) See Solum, supra note 31, at 8-9.

(109) There is the additional problem that original intent
originalism must distinguish framers intentions which inform the actual
meaning of the text, and those intentions which courts should use as a
guide to construction, or application, of the text.

(110) 5
ANNALS
  
pl.n.
1. A chronological record of the events of successive years.

2. A descriptive account or record; a history:  
 OF CONG. 776 (1796) (remarks of Rep. James Madison).
Madison’s theory of
ratifier
  
tr.v. rat·i·fied, rat·i·fy·ing, rat·i·fies
To approve and give formal sanction to; confirm. See Synonyms at approve.
 understanding has been the subject of
scholarly criticism. See, e.g., RAKOVE, supra note 34, at 364 (arguing
that Madison embraced the theory of ratifier understanding “less by
his belief that they provided a viable method of interpretation than by
the arguments of other speakers”). For the purposes of this
article, I simply note that most originalists agree that the debates of
the ratifying conventions provide a far more relevant source of original
public understanding of the text than do the secret debates of the
convention. To the extent that one embraces original meaning originalism
as part of the normative theory of
popular sovereignty
 in U.S. history, doctrine under which the status of slavery in the territories was to be determined by the settlers themselves. Although the doctrine won wide support as a means of avoiding sectional conflict over the slavery issue, its meaning
, determining the
consensus understanding of the sovereign ratifiers would be particularly
important.

(111) See, e.g., Powell, supra note 32, at 937-39 (discussing
Madison’s discomfort with the ratifier’s intent dictating the
true meaning of the Constitution).

(112) See Solum, supra note 31, at 20.

(113) See, e.g., Alexander & Prakash, supra note 31, at 970
(explaining the position of
intentionalism
  
n.
The belief or assumption that the meanings of a text are determined mainly by the stated or implied intentions of the author.


in·ten
).

(114) This includes theorists like Jack Balkin who otherwise
eschews relying solely on the original intentions of the framers. See,
e.g., BALKIN, supra note 3, at 912 n.27 (“I have argued that
Resolution VI provides the proper structural principle and the best
explanation for the list of enumerated powers, and, moreover, that this
principle was actually intended by the Philadelphia Convention.”).

(115) 2 FARRAND’S RECORDS, supra note 4, at 131-32.

(116) See, e.g., BALKIN, supra note 3, at 912 n.27 (“In my
view, the principle of Resolution VI underlies and should inform the
proper construction of all of Congress’s enumerated powers.”).

(117) For example, even if the Interstate Commerce Clause itself
could not reasonably be interpreted to reach every collective action
problem of national import, such problems might be adequately addressed
through a combined use of Article I powers. See, e.g., Koppelman supra
note 3, at 4-5.

(118) See, e.g., Balkin, supra note 3, at 13; Koppelman, supra note
3, at 12-13.

(119) Occasionally, Resolution VI advocates leave out the opening
clause involving the power to legislate in “all cases for the
general interests of the Union” when quoting Resolution VI. See,
e.g., Koppelman, supra note 3, at 12 (quoting Resolution VI as power to
“legislate in all cases … to which the States are separately
incompetent, or in which the harmony of the United States may be
interrupted by the exercise of individual legislation”) (
ellipsis

 in original). However, since Koppelman’s argument is that we should
follow the framers’ intentions regarding Resolution VI as adopted,
I presume that he means to refer to Resolution VI in its entirety.

(120) RAKOVE, supra note 34, at 177-78.

(121) Id. at 178.

(122) Id. at 179.

(123) Id. at 180.

(124) 2 FARRAND’S RECORDS, supra note 4, at 177, 181-83
(Madison’s notes).

(125) Id. at 610, 615 (Madison’s notes).

(126) Id. at 615.

(127) Others have pointed out the significance of discussions in
the latter part of the convention that suggest the framers did not
believe they had granted Congress
plenary power

. See, e.g., Robert G.
Natelson & David Kopel, Commerce in the Commerce Clause: A Response
to Jack Balkin, 109 MICH. L. REV. FIRST IMPRESSIONS 55, 59 (2010); Grant
S. Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce Clause:
Applying First Principles to Uphold Federal Commercial Regulations but
Preserve State Control Over Social Issues, 85
IOWA
 , midwestern state in the N central United States. It is bounded by the Mississippi R.
 L. REV. 1, 39-40
(1999). To my knowledge, no previous scholarship has noted the
particular relevance of the discussion
relating to
 relate prep

 relate prep → ,  
 charters of
incorporation and claims that the framers understood Article I, Section
8 as having authorized Congress to regulate matters of national
importance to which the states were separately incompetent.

(128) 2 FARRAND’S RECORDS, supra note 4, at 610, 615-16
(Madison’s notes) (first emphasis added).

(129) Id. at 615 (emphasis added).

(130) Id.

(131) Id.

(132) Id.

(133) Id. at 610, 616.

(134) Balkin, supra note 3, at 11.

(135) 2 FARRAND, supra note 4, at 610, 615 (Madison’s notes)
(emphasis added).

(136) Id.

(137) See supra note 32 (providing scholarly explanations of modern
alternatives to original intent).

(138) See District of Columbia v. Heller, 554 U.S. 570, 576-628
(2008) (containing an extensive investigation of the original
understanding of the Second Amendment).

(139) Balkin, supra note 3.

(140) See BALKIN, supra note 3, at 908.

(141) See id. at 920, 949.

(142) Balkin, supra note 3, at 11.

(143) Id. at 8.

(144) Id. at 10.

(145) Id. at 12.

(146) Id. at 8.

(147) Id. (quoting 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS
ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE
GENERAL CONVENTION AT PHILADELPHIA IN 1787, at 399 (
Jonathan Elliot

 ed.,
2d ed. 1891) (remarks of Rep. James Wilson)).

(148) Id. See also BALKIN, supra note 3, at 912 n.27 (“James
Wilson, who was a member of the Committee of Detail, and one of the
first justices appointed to the Supreme Court, publicly represented that
the principle of Resolution VI was the basis for the choice of
enumerated powers.”).

(149) Balkin, supra note 3, at 11 (alteration in original) (quoting
2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE
FEDERAL CONSTITUTION AS RECOMMENDED BY THE GENERAL CONVENTION AT
PHILADELPHIA IN 1787, at 399 (Jonathan Elliot ed., 2d ed. 1891)
[hereinafter ELLIOT’S DEBATES] (remarks of Rep. James Wilson)).

(150) Id. at 7 (emphasis added). See also BALKIN, supra note 3, at
912 n.27 (“James Wilson, who was a member of the Committee of
Detail, and one of the first justices appointed to the Supreme Court,
publicly represented that the principle of Resolution VI was the basis
for the choice of enumerated powers.”) (emphasis added).

(151) Indeed, some historians have argued that, by adopting a list
of enumerated powers, the Committee of Detail violated the instruction
to produce a draft faithful to the principle announced by the amended
version of Resolution VI. See, e.g.,
FORREST MCDONALD

,
E PLURIBUS UNUM
  [Lat.
 286-302 (2d ed. 1979). If this is true, it makes an even stronger case
for rejecting Resolution VI as representing the framers understanding of
the ultimate text.

(152) RAKOVE, supra note 34, at 177-78.

(153) See supra note 63 and accompanying text (discussing Roger
Sherman’s proposed alteration of Resolution VI).

(154) See supra Part III.B.

(155) See BALKIN, supra note 3, at 905.

(156) See Balkin, supra note 3, at 11.

(157) See supra note 78 and accompanying text.

(158) Balkin was not the first scholar to assume that Wilson was
discussing the general principle of Resolution VI. See, e.g., Mark
Moller, A New Look at the Original Meaning of the Diversity Clause, 51
WM. & MARY L. REV. 1113, 1170 & n.212 (2009).

(159) 2 FARRAND’S RECORDS, supra note 4, at 26 (Madison’s
notes) (emphasis added).

(160) Id. at 131-32.

(161) Id. at 25.

(162) Balkin, supra note 3, at 8 (quoting 2 ELLIOT’S DEBATES,
supra note 149, at 424). The version of Wilson’s speech that Balkin
uses is the version by Thomas Lloyd. This version is also reproduced in
2 DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 350, 355
(
Merrill Jensen

 ed., 1976) [hereinafter DHRC].

(163) See Balkin, supra note 3, at 29-30.

(164) Id. at 29.

(165) Id. at 30.

(166) Id. at 31 (quoting 2 FARRAND’S RECORDS, supra note 4, at
21, 26, 131-32 (Madison’s notes)).

(167) Id. at 11. Here is the portion of Wilson’s speech quoted
by Balkin:

   [T]hough this principle be sound and satisfactory, its application
   to particular cases would be accompanied with much difficulty,
   because, in its application, room must be allowed for great
   discretionary latitude of construction of the principle. In order
   to lessen or remove the difficulty arising from discretionary
   construction on this subject, an enumeration of particular
   instances, in which the application of the principle ought to take
   place, has been attempted with much industry and care.

Id. (quoting 2 ELLIOT’S DEBATES, supra note 149, at 424-25).

(168) See 2 DHRC, supra note 162, at 339.

(169) Id.

(170) Id.

(171) Id. (quoting Letter from Samuel Vaughan, Jr. to
James
Bowdoin

,
Governor of Massachusetts

 (Nov. 30, 1787)).

(172) Id.

(173) Id.

(174) Id. at 344.

(175) Id. at 355.

(176) Id. at 344 (emphasis added).

(177) Id. at 355 (emphasis added).

(178) Id.

(179) Balkin, supra note 3, at 11.

(180) There is (literally) no reason to believe that a version of
the speech published long after the fact by one of Wilson’s
supporters reflects a more accurate version of Wilson’s original
speech than a version published immediately after the fact.

(181) See supra notes 168-175 and accompanying text.

(182) See 2 DHRC, supra note 162, at 339.

(183) Wilson’s
Statehouse
 also state house  
n.
A building in which a state legislature holds sessions; a state capitol.


Noun

NZ a rented house built by the government

Noun 1.
 Speech and his explanation regarding
the omission of the Bill of Rights was extremely influential during the
ratification debates. See PAULINE MAIER, RATIFICATION 77-82 (2010).
However, there is no evidence that the above quoted portions of his
speech in the Pennsylvania Convention had any effect whatsoever. In
fact, the manner in which Pennsylvania conducted its ratifying
convention and suppressed alternative views became something of a
scandal as the debates in other states went forward. See id. at 127.
There are additional problems with relying too heavily on Wilson as
representing a consensus view of federal power in light of his later
unsuccessful efforts to almost completely
eviscerate
  
v. e·vis·cer·at·ed, e·vis·cer·at·ing, e·vis·cer·ates

v.tr.
1. To remove the entrails of; disembowel.

2.
 the states as
independent entities in the Philadelphia Convention. See
Henry Paul

 Monaghan, We the People[s], Original Understanding, and Constitutional
Amendment, 96 COLUM. L. REV. 121, 140-43 (1996); see also
Chisholm v.
Georgia

, 2 U.S. (2 Dall.) 419, 457-58 (1793) (opinion of Wilson, J.)
(arguing that claims of state sovereignty rested on a
feudal
  
adj.
1. Of, relating to, or characteristic of feudalism.

2. Of or relating to lands held in fee or to the holding of such lands.


feu
 conception
of sovereignty which, although “degrading to man,”
nevertheless “still retains its influence over our sentiments and
conduct, though the cause, by which that influence was produced, never
extended to the American States”). Although Madison originally
shared Wilson’s views, see Monaghan, supra, at 140-41, Madison
moved to a more balanced Federalist view of national power following the
adoption of the ”
Connecticut Compromise

” which gave states
equal representation in the Senate. See, e.g., THE FEDERALIST NO. 39,
supra note 25, at 246 (James Madison) (“[The proposed Constitution
is] neither wholly national nor wholly federal….”); see also

GORDON S. WOOD

, EMPIRE OF LIBERTY 32 (2009).

(184) See, e.g., Amar, supra note 3, at 2003 n.23; Cooter &
Siegel, supra note 3, at 124.

(185) 2 ELLIOT’S DEBATES, supra note 149, at 399 (remarks of
Rep. James Wilson).

(186) 2 ELLIOT’S DEBATES, supra note 149, at 342 (remarks of
Rep. Alexander Hamilton).

(187) 4 ELLIOT’S DEBATES, supra note 149, at 259 (remarks of
Rep. Charles Pinckney).

(188) THE FEDERALIST NO. 14, supra note 25, at 102 (James Madison).

(189) 4 ELLIOT’S DEBATES, supra note 149, at 414.

(190) Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824).

(191)
Gonzales v. Raich

, 545 U.S. 1, 38 (2005) (Scalia, J.
concurring) (quoting United States v. Lopez, 514 U.S. 549, 567-68
(1994)).

(192) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819).

Kurt T. Lash, The author thanks Randy Barnett,
Michael McConnell

,
Henry Monaghan, Stephen Presser, Robert Pushaw, Neil Siegel, Lawrence
Solum and G. Edward White for their helpful comments and suggestions. I
also thank Jack Balkin for his help in clarifying both his and my
differing positions regarding the nature and implications of the
historical evidence.