Recently published, in the Federalist Society Review, Robert Natelson (Independence Institute): More News on Powers Reserved Exclusively to the States (20 Fed. Soc. Rev. 92 (2019)). Here is the introduction (footnotes omitted):
This essay updates and supplements an article published last in the Federalist Society Review entitled The Founders Interpret the Constitution: The Division of Federal and State Powers. That article explained how during the Constitution’s ratification debates (1787-90), leading Federalists (the Constitution’s advocates) issued authoritative enumerations of powers that would remain outside the federal sphere under the Constitution if ratified. Most of the enumerators were highly respected American lawyers. The two most important non-lawyers were Tench Coxe and James Madison. Coxe was a Philadelphia businessman and economist, member of the 1789 Confederation Congress, and future assistant secretary of the treasury.
Coxe’s ratification-era writings were highly influential among the general ratifying public—perhaps as influential as the essays in The Federalist. Subsequent interpreters of legal texts generally give considerable weight to representations of meaning presented by a measure’s sponsors. The Federalists enumerating powers the Constitution denied to the central government clearly intended that the ratifying public rely on their representations. These representations squarely contradict claims by some commentators that the Constitution conferred near-plenary authority on the federal government.
This essay serves two purposes. First, it briefly addresses and refutes claims that near-plenary federal power lurks within two seemingly straightforward constitutional grants: the Commerce Clause and the Necessary and Proper Clause. Second, it summarizes how materials reproduced in three newly published volumes in the Documentary History of the Ratification of the Constitution of the United States reinforce the conclusion of last year’s article.
Plus, pp. 94-96, a direct counter to John Mikhail’s expansive theory of the necessary and proper clause (see John Mikhail, A Tale of Two Sweeping Clauses, 42 Harvard J. L. & Pub. Pol’y 29 (2018); and John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045 (2014)).
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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