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 states were separately incompetent.
My last post represents an argument against Resolution VI proponent claims of original intent. However, as I explain in my article, there is good reason to reject original intent regardless of what one thinks about the framing debates. Scholars have severely criticized original intent originalism on a variety of methodological and normative grounds. In fact, most mainstream originalists today seek to determine the original public meaning of the text, and not the often secret intentions of the framers.
It is significant, then, that in addition to problematic claims regarding the framers’ intent, proponents Resolution VI also claim that framer and future Supreme Court Justice James Wilson publicly declared during the Pennsylvania Ratifying Convention that the framers intended Article I, Section 8 to operationalize the principle of Resolution VI. According to Jack Balkin, James Wilson explained to his Pennsylvania audience that “the purpose of enumeration was not to displace the principle [of Resolution VI] but to enact it.”
If true, then this would be evidence that at least one framer believed Resolution VI remained relevant after the adoption of Article I. But more importantly, if Wilson publicly linked Resolution VI to the final draft of the Constitution early in the ratification debates, then this allows Resolution VI proponents to make claims based on the original public understanding of Article I, Section 8, and not just claims about the framers’ intentions. In other words, if Wilson was talking about Resolution VI, then this helps to overcome the problem of relying on a non-constitutional text discussed during the secret Philadelphia debates.
It turns out, however, that Wilson’s speech does not invoke Resolution VI. Why scholars have mistakenly concluded Wilson was speaking about Resolution VI deserves a far more detailed explanation than I can provide in a single blog post. Again, I encourage those interested in the full argument to read the evidence presented in my article (pp. 12-16, 29-35, in particular). For now, I can only provide a sketch of the full evidence.
Here is the passage in Wilson’s speech that scholars have assumed involves a reference to Resolution VI:
“They [the Framers] found themselves embarrassed with another of peculiar delicacy and importance; I mean that of drawing a proper line between the national government and the government of the several states. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States. But though this principle be sound and satisfactory, its application to particular cases would be accompanied with much difficulty, because, in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lessen or remove the difficulty arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted with much industry and care.” (emphasis added)
If one believes that Resolution VI was the only “principle” in play during the framing debates, then one might assume Wilson’s reference to “this principle” was a reference to Resolution VI. It turns out, however, that other principles were discussed during the framing debates, including one introduced by Roger Sherman that Wilson expressly declared as “better” than Resolution VI. Here is Sherman’s proposed “principle” for determining the scope of national and state power:
“To make laws binding on the People of the United States in all cases which may concern the common interests of the Union: but not to interfere with the government of the individual States in any matters of internal police which respect the government of such States only, and wherein the general welfare of the United States is not concerned.”
When Wilson first heard Sherman’s proposal, he supported it on the ground that it “better express[ed] the general principle” than did Resolution VI. In fact, Sherman’s proposal was altogether different in structure and content from Resolution VI. Sherman’s principle says nothing about “where the States are separate incompetent” or national “harmony.” Instead, Sherman simply divides  matters that fall within the power of the government of the United States, from  matters that remain within the power of the governments of the states.
Like Sherman’s proposal, the principle Wilson invokes in his speech says nothing about Resolution VI and powers where “the states are separate incompetent” or situations where states interrupt “national harmony.” Instead, Wilson follows Sherman’s approach and simply divides  matters that belong to the state governments from  matters that belong to the government of the United States. In fact, Wilson’s principle is almost exactly the same as Sherman’s, with only the subjects (federal and state power) placed in reverse order.
This is what we would expect, of course, from a man who believed that Sherman’s approach better described what Congress was trying to do than did Resolution VI. It is also what we would expect from a man who expressly declared during the incorporation debates that Article I, Section 8 had not conferred power to act in a case involving the national interest where the states were “separately incompetent.”
Perhaps Wilson’s use of Sherman’s model represents Wilson’s understanding of what the framers were really trying to accomplish. Maybe it was his own idiosyncratic view of how the Constitution ought to be read. Whatever it is, it is not Resolution VI and Wilson does not claim that it is.
Scholars have simply assumed Wilson was referring to Resolution VI, even as they noticed that Wilson’s principle seemed somewhat different than Resolution VI (as does Jack Balkin, for example). But not only has Wilson actually invoked a principle he preferred over that of Resolution VI, he has invoked an approach that the framers in the convention affirmatively rejected. Thus, one cannot argue that Wilson’s principles are essentially the same as Resolution VI. James Wilson believed there was a difference, as did the framers. In this case, differences matter. The claim that Wilson publicly declared that the framers intended Article I, Section 8 to follow the principle of Resolution VI is simply mistaken.
Finally, Jack Balkin has emphasized the particular words Wilson used in his speech to describe “operations and effects” of national concern. We now know there is no reason to link these words to Resolution VI. But even if viewed as a free-standing principle of federal power in play during the ratification debates, it is not at all clear whether they became part of the public debate. These particular words are included in a version of Wilson’s speech reprinted in Elliot’s Debates. However, as the newly compiled Documentary History of the Ratification of the Constitution shows, however, this is not the only version of Wilson’s speech. In fact, the version of Wilson’s speech which was reprinted as a pamphlet and reprinted in numerous newspapers around the country did not include the reference to “operations and effects.” The version which includes this particular language was published as a pamphlet months later by one of Wilson’s supporters. As far as I can tell, it was not reprinted in any newspaper in the country. Although its publisher claimed this later version was more accurate, we have no way to know whether this is actually true. In fact, given the existence of the two versions, we can no longer be sure what exactly Wilson said during his speech.
In sum, claims that Wilson publicly linked Resolution VI to Article I, Section 8 are not supported by the historical evidence. Wilson said nothing about Resolution VI (in any version of his speech) and his approach mirrored a principle introduced by Roger Sherman—a principle Wilson declared was better than Resolution VI. Finally, there is no evidence that the version of Wilson’s speech relied upon by Resolution VI proponents played any role outside the Pennsylvania Convention (and we can’t even be sure these were the words he spoke in the convention).
Notice that Wilson’s speech is the only evidence offered by Resolution VI proponents that involves public discussion of Resolution VI during the ratification debates. Even if true, this single speech by one framer could never suffice as an argument for original understanding. The fact Wilson’s speech refers to a different principle simply removes from the table the only evidence of discussion during the ratification debates currently proffered by supporters of Resolution VI.
There is much more in my article that explores why this odd corner of constitutional history is so important and the significance if the courts were to use Resolution VI as a guide to the construction of Article I, Section 8. But regardless of whether I am right about the implications, arguments in favor of the principle of Resolution VI must rest on their individual merits, and not on claims of original intent and understanding.