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Jud Campbell: Four Views of the Nature of the Union
Michael Ramsey

Jud Campbell (Stanford Law School) has posted Four Views of the Nature of the Union (47 Harvard Journal of Law and Public Policy 13 (2024)) (25 pages) on SSRN.  Here is the abstract:

This Essay summarizes four Founding-Era views about the nature of the Union and the key interpretive implications that followed from those views. In doing so, it emphasizes the importance of social-contract theory and engages a recent scholarly debate over the influence of the law of nations on Founding-Era constitutional interpretation. Without taking a position about which view of the Union was correct, the Essay aims to illuminate the range of interpretive possibilities, including ones informed more by social-contractarian premises than by the law of nations.

And from the introduction (footnotes omitted):

One of the most enjoyable yet challenging aspects of studying American constitutional history is that the earlier generations often did not share our vision of constitutional law. For us, the written Constitution grounds constitutional argument. We treat the text as the source of our fundamental law, and then as Justice Scalia would say, the rest is “a matter of interpretation.”

In taking this approach, we have mostly rejected other ways of grounding constitutional law—including through invocations of social-contract theory, natural rights, and natural law. These are things that might come up in a philosophy class, but they have little relevance to legal doctrine. Not coincidentally, we also have mostly moved beyond the fights over sovereignty and the “nature of the Union” that dominated the first century of American constitutional debate.

But Americans from the Founding through Reconstruction did not share this perspective. For them, the text mattered a great deal. But there were deeper foundations—and more fundamental sources of authority—than the written document. Americans thus often debated how the text of the Constitution fit within a broader matrix of fundamental law. This was especially true of federalism disputes, which frequently turned on social-contractarian assumptions about the locus of sovereignty within the federal system. So in order to think historically, we need to imagine the nature of constitutional law—and the grounding of constitutional law—in these older ways.