The Framers’ Intent in Cases Involving the National Interest Where the States are “Separately Incompetent”

This is the second in a series of guest-posts on my new article, “Resolution VI”: The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8 and recent efforts to use Resolution VI as a foundational principle for construing federal power under Article I, Section 8. As amended and originally adopted in the Philadelphia Convention, Resolution VI called for the federal government to be granted 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.” Although the framers ultimately chose the language of enumerated powers in Article I, Section 8, a number of scholars have recently argued that Article I, Section 8 should be interpreted in a manner that effectuates the broad principles of Resolution VI. In my article, I argue that these claims are based on both historical omissions and historical error.

Proponents of the Resolution VI-reading of federal power make two key claims: (1) the framers intended Article I, Section 8 to be construed in a manner that effectuates the principle of Resolution VI, and (2) framer James Wilson delivered a speech during the Pennsylvania Ratifying Convention in which he expressly linked Resolution VI to the framers’ understanding of Article I, Section 8. Although my article goes into far greater detail, in this and my next post I will try to give some idea of why I believe both claims are demonstrably incorrect.

On August 6, the Committee of Detail presented the list of enumerated powers that became Article I, Section 8 of the federal Constitution. Just over one month later, on September 14, the Convention discussed whether to give Congress the power to grant charters of incorporation. 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.

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 are separately incompetent,” or in cases where state legislation interrupted “national harmony,” then the members would have thought they already had such power. From the following conversation, it appears that 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 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, 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.]”

In this short but important conversation, we learn a number of things. First and most importantly, no one in this discussion believed that, by adopting Article I, Section 8, the Convention had granted Congress power to regulate matters in the national interest to which the states were “separately incompetent.” If they had, they would have either supported Madison’s proposal as being consistent with Resolution VI or they would have pointed out that Congress already had the power to act in cases “where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent.” Instead, not only did Madison and Wilson deny Congress had any such power (though they believed it should), the convention voted down the proposition to grant Congress such power.

Second, not only did the framers expressly deny that Congress power to act in cases involving the national interests where states separately were incompetent, no framer believed the prior adoption of Resolution VI was even relevant either to understanding the scope of those powers that had been granted or the kinds of additional powers that ought to be granted. Finally, a majority rejected granting power in a situation that would have literally met the criteria of Resolution VI—a matter of general interest to the United States to which the efforts of the states separately were incompetent.

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. Even if one can cleanly divide an intended principle from the intended application of that principle, this objection misses the thrust of the above-quoted 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” shows that the convention had not intended to adopt the general principle of Resolution VI when they adopted the enumerated powers language of Article I, Section 8.

In my third and final substantive post, I will address claims by Resolution VI scholars that James Wilson expressly linked Article I, Section 8 to Resolution VI during the debates in the Pennsylvania Ratifying Convention.