Andrew Coan (University of Arizona, James E. Rogers College of Law) & David S. Schwartz (University of Wisconsin Law School) have posted Interpreting Ratification (1 J. Am. Con. Hist. 449 (2023)) (90 pages) on SSRN. Here is the abstract:
For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant.
Focusing on the debate over enumerated powers, this article challenges the unfounded assumptions of Federalist objectivity and Anti-Federalist irrelevance and models the historical method necessary to interpret the ratification debates rigorously. More specifically, the article advances three central claims. First, the probable insincerity of much Federalist advocacy—including The Federalist—significantly undercuts its authority as evidence of a determinate original public meaning. Second, Anti-Federalist advocacy opposing ratification is much more probative evidence of original public meaning than has generally been recognized. Third, the most prominent arguments for privileging Federalist over Anti-Federalist advocacy are internally flawed and historically unfounded. More important, none of those arguments can be squared with the tenets of public-meaning originalism.
All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law.
(Via Larry Solum at Legal Theory Blog, who says “Highly recommended”.)
Related: from earlier this year, by the same authors: The Original Meaning of Enumerated Powers.
I agree that caution is needed in using The Federalist and that anti-federalist writers should be considered as well. I’m not sure that’s especially controversial in originalist circles, at least in theory, but it may sometimes be overlooked in practice. I’m not persuaded by the authors’ challenges to the idea of limited federal power, which I think is pretty clear from the text.
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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- Andrew Coan & David Schwartz: Interpreting Ratification - July 28, 2023
- Charles Pinckney and Moore v. Harper - November 10, 2022