Monday, January 23, 2023

Originalism, Meet the Federalist Constitution

Andrew Coan

(co-authored with David S. Schwartz)

A growing literature aims to excavate and recover “the Federalist Constitution”—that is, the “vision of the Constitution held between 1787 and 1800 by leading figures in the struggle for constitutional ratification and, thereafter, by leading figures in the Federalist Party.”  This literature has done much to unsettle received Jeffersonian-Madisonian narratives of the American founding which treat a limiting enumeration of powers as “the essential characteristic” of the national government established by the Constitution.  In fact, many prominent Federalists of the founding generation took a very different view, as their Anti-Federalist opponents well recognized. But thus far, this literature has been predominantly historical and historiographical. As such, it has mostly focused on the views, intentions, and political projects of particular individuals and groups. It has not frontally engaged originalist arguments for limited, enumerated powers on their own terms—that is, in terms of original public meaning. 

Our new draft article takes up this gauntlet. We begin by demonstrating that the original semantic meaning of enumeration was fundamentally indeterminate. All of the standard textual arguments for limited, enumerated powers—what one of us has called “enumerationism”—require that the reader presuppose or assume their conclusion. Read without a presupposition of enumerationism, the original semantic meaning of the text is perfectly consistent with a federal government empowered to address all important national problems. Indeed, several of the Constitution’s provisions—including the General Welfare Clause, the Necessary and Proper Clause, and the Preamble—are most naturally read to create just such a government, though their semantic meaning does not decisively resolve the question.

We next ask whether the semantically ambiguous constitutional text could nevertheless have communicated the core tenets of enumerationism when read in its original context. According to modern originalism, the semantic meaning of the Constitution is “pragmatically enriched” by its background context—the widespread assumptions, presuppositions, and cultural frames of reference that supplemented the text’s original semantic meaning. Consciously or unconsciously, most originalist arguments for enumerationism sound in the register of contextual enrichment. But the case they make is weak and underdeveloped, perhaps because it has so long been taken for granted. There is also considerable evidence that enumerationist assumptions were not universally shared and, in fact, were strongly contested. This evidence, in turn, poses numerous theoretical difficulties that enumerationists have never addressed in a serious way. In short, there are strong—and unanswered—arguments that the original public meaning of enumeration was indeterminate. 

We do not say definitively that those arguments are correct. Given the complexity of the question and the voluminous literature bearing on it, that would require a more exhaustive historical analysis than any one article could provide. But enumerationists and their nationalist critics are both wrong to take the originalist pedigree of enumerationism for granted. Much more historical research and analytical work would be required to draw a confident conclusion. 

For a fuller explanation, see our draft article “The Original Meaning of Enumerated Powers.”

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