Author Archive | Kurt Lash, guest-blogging

Jack Balkin’s Response to My Article on Resolution VI

I am glad to report that Jack Balkin has posted an extended response to my new article on Resolution VI. His doing so allows me to both clarify my arguments and our points of disagreement. Jack’s scholarship on constitutional theory and history is deep and profound, and Jack himself is a warm and gregarious colleague. Both of these points are obvious to anyone familiar with Jack and his work, but given the criticisms in my article, I should acknowledge both facts up front. My claim in this article is nothing more than, on this particular point, Jack and others have erred in regard to their claims about Resolution VI.

It is important to clarify these claims because Jack seems to misapprehend my arguments. They are directed solely at historical claims made by proponents of a Resolution VI-based reading of Article I, Section 8. These are claims of original intent and historical fact. The relevance of any historical evidence depends on one’s theory of interpretation. This article has no quarrel with Jack’s or anyone else’s particular theory of interpretation and construction. My quarrel, if you want to think of it that way, is with the factual claims relied upon by Jack and others in building their case.  For those first joining the discussion, my general argument is presented here, here, here, and here.

Our Respective Claims

First, Balkin claims that I have mischaracterized his position about Resolution VI. Balkin does in fact have a creative theory of constitutional meaning and construction, one that I do not address in my article or in my posts. It may well be (though I am not convinced) that the evidence presented in my article makes no difference to his particular theory of Article I, Section 8. However, in the course of […]

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Neil Siegel and the Claims of Resolution VI Proponents (a reply)

My thanks to Neil Siegel for his willingness to engage the historical arguments presented in my new paper on Resolution VI.  In this final post, I will address why the discussion is important and also respond to Neil’s comments and some of the comments made by others during the week.

I should state from the outset that my article is directed at historical claims recently made in support of a Resolution VI-based reading of Article I, Section 8. Neither my paper nor my posts here at the Volokh Conspiracy address the relative merits of Cooter and Siegel’s instrumentalist case for adopting the principle of Resolution VI.  That said, I believe it is important to understand what it is Resolution VI proponents are asking for. Cooter and Siegel, for example, believe that a Resolution VI-based reading of Article I, Section 8 support revisiting the analysis in United States v. Butler and allowing Congress to regulate “for the general welfare” (properly understood). Andrew Koppelman insists that courts should rely on Resolution VI because the Resolution is the “functional equivalent” of Article I, Section 8—as in, Resolution VI “functions as the equivalent” of Article I, Section 8.

I think this is an accurate description of what Resolution VI proponents are about—effectuating the general principle of the Resolution should be the standard by which we measure proper interpretations of the text, as should be the case if they were functional equivalents. Any reading of the text that does not allow Congress to regulate for the “general interests of the Union,” or in cases where the “states are separately incompetent,” or where state action “interrupts national harmony,” is an incorrect reading of the text.  Here is how Wydra and Kendall put it in their briefs, “Only if ‘commerce’ is read in light of this broader […]

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James Wilson, Resolution VI and Original Public Meaning

This is my third and final substantive guest-post 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.

To recap my last post, proponents of Resolution VI claim that the framers intended Article I, Section 8 to enact the principle that Congress have power to legislate in “all cases for the general interests of the Union,” where “states are separately incompetent,” and where individual legislation in the states interrupted the “harmony of the United States.” However, during a portion of the convention debates which occurred after the adoption of Article I, Section 8, James Madison attempted—unsuccessfully—to add congressional power to grant charters of incorporation in cases “where the interest of the U.S. might require & the legislative provisions of individual States may be incompetent.” This is a power that literally falls within the scope of Resolution VI. Had Madison understood the convention as having already granted such power through the adoption of Article I, Section 8, his proposal would have been unnecessary.

James Wilson agreed with Madison that the addition of such power was “necessary” despite the adoption of Article I, Section 8, and Wilson expressly distinguished Madison’s proposed power from other powers he believed already granted as part of Article I, Section 8. Thus, in what appears to be the only discussion of the principles of Resolution VI that occurred after the adoption of Article I, Section 8, framers like Madison and Wilson assumed Congress had not drafted a text that “enacted” Resolution VI and the convention as a whole rejected an attempt to add power in a case where the national interest was at stake and the […]

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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 […]

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Resolution VI in Current Scholarship and the ACA Debate

My thanks to Eugene and the Volokh Conspiracy for giving me the opportunity to blog a bit on my new paper, “Resolution VI”: The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8. In brief, the paper argues that recent efforts to make an historical case for using Resolution VI of the original Virginia Plan as the fundamental principle for construing federal power under Article I, Section 8 are fatally flawed due to both historical omission and historical error.

I am pleased to join Neil Siegel as a co-guest blogger on the subject of Resolution VI, and in later posts I plan on responding to Neil’s comments. For now, I plan three substantive posts. This first post presents Resolution VI and the claims of its current proponents. The second and third will address key pieces of historical evidence that I develop in more detail in my article. Because I can only hope to scratch the surface of the historical evidence presented in the article, I am hopeful that those interested in the matter will investigate the fully developed arguments in the scholarly literature, including my own article and others such as the insightful paper by Neil Sielgel and Robert Cooter in the Stanford Law Review.

I begin with Resolution VI of the Virginia Plan. As amended and ultimately adopted in the Philadelphia Convention, Resolution VI declared that Congress should have power:

“[To] legislate in all Cases for the general interests of the Union,
and also in those Cases in 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 adopted early in the Convention, the language of Resolution VI was never added to the Constitution. The framers chose instead to […]

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