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06/06/2018

Robert Natelson on Enumerated Powers
Michael Ramsey

Recently published, in The Federalist Society Review (vol. 19, May 2018), Robert Natelson (Independence Institute): The Founders Interpret the Constitution: The Division of Federal and State Powers.  Here is the introduction:

Perhaps the leading issue dividing proponents and opponents during the debates over whether to ratify the Constitution was whether the document granted, or could be construed to grant, excessive authority to the federal government. The well-known demand by opponents of ratification—the Antifederalists—for a bill of rights was merely one important aspect of the larger concern. To at least partially disarm this opposition, the Constitution’s advocates—the Federalists—agreed to adopt a bill of rights.

Less well known is that the Federalists repeatedly informed the public of specific powers the Constitution would leave entirely within the jurisdiction of the states and their citizens. This endeavor was not surprising or unusual, nor would it be today. After the sponsors of a legal proposal present it, they generally are asked to explain further its scope and meaning, and they respond by clarifying their proposal in greater detail. That is what the Federalists did after proposing the Constitution.

After a legal measure is adopted, the lawyers and judges interpreting it generally give great credibility to the replies given by the original sponsors. They are considered authoritative expositions and representations from those most familiar with the proposal, especially because those who adopted it likely relied upon them. The essays in The Federalist are a premier example of such replies in support of the proposed Constitution, which is one reason we prize them as guides to constitutional interpretation. Unfortunately, the replies made by Federalists enumerating powers reserved exclusively to the states have largely been overlooked. ...