(coauthored by David S. Schwartz)
The two of us have just published “Interpreting Ratification” in the new peer-reviewed Journal of American Constitutional History. This article expands on our earlier piece, “The Original Meaning of Enumerated Powers.” Together, the two articles challenge the widespread conventional wisdom that the Constitution establishes a federal government of limited, enumerated powers. “Interpreting Ratification” also addresses the role of sincerity in public-meaning originalism, the weight and relevance of Federalist and Antifederalist advocacy as evidence of original public meaning, and the important but neglected founding-era distinction between genuinely national governments and merely federal associations of states.
Here is the abstract:
For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant.
Focusing on the debate over enumerated powers, this article challenges the unfounded assumptions of Federalist objectivity and Anti-Federalist irrelevance and models the historical method necessary to interpret the ratification debates rigorously. More specifically, the article advances three central claims. First, the probable insincerity of much Federalist advocacy—including The Federalist—significantly undercuts its authority as evidence of a determinate original public meaning. Second, Anti-Federalist advocacy opposing ratification is much more probative evidence of original public meaning than has generally been recognized. Third, the most prominent arguments for privileging Federalist over Anti-Federalist advocacy are internally flawed and historically unfounded. More important, none of those arguments can be squared with the tenets of public-meaning originalism.
All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law.
You can read the whole thing here.