Let us watch for future posts on this topic from Kurt Lash, guest-blogging at the Volokh Conspiracy (as he announces at the end of the second, currently top, post that he will follow it with others; see also his article on the same topic). That topic is the idea that Article I, Section 8 of the United States Constitution should be interpreted in light of certain proposals at the Constitutional Convention to describe, rather than list, the powers of Congress. Evidently, this idea has been used by some authors in order to argue in favor of greater federal power, to loosen or transcend the limits inherent in this listing of powers (made explicit, of course, by the Tenth Amendment). However, Lash does not agree that those historical proposals to describe, rather than to enumerate, the powers of Congress, were connected with the final, definitive constitutional enumeration in the way that these authors claim.
While reading records from the Constitutional Convention, when I first noticed the proposals to permit Congress to act in the national interest in cases where the states were thought to be "separately incompetent," I, too, understood them as part of the history (and helping to indicate the purpose) of the enumerated powers of Congress. I would have used this idea to argue against powers that have been unreasonably inferred by Congress (or attributed to Congress by courts, needing a constitutional explanation for various things that Congress has done, and sanctioned by those same courts). Once I succeed in accessing Lash's article, or else once I have read his remaining guest posts on this topic, I hope to offer a more complete commentary on it.
Until then, here are some notes, slightly edited, that I took this March, from Madison's notes on the Constitutional Convention:
While reading records from the Constitutional Convention, when I first noticed the proposals to permit Congress to act in the national interest in cases where the states were thought to be "separately incompetent," I, too, understood them as part of the history (and helping to indicate the purpose) of the enumerated powers of Congress. I would have used this idea to argue against powers that have been unreasonably inferred by Congress (or attributed to Congress by courts, needing a constitutional explanation for various things that Congress has done, and sanctioned by those same courts). Once I succeed in accessing Lash's article, or else once I have read his remaining guest posts on this topic, I hope to offer a more complete commentary on it.
Until then, here are some notes, slightly edited, that I took this March, from Madison's notes on the Constitutional Convention:
May 29, 1787: Randolph’s resolution #6: “...that the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation...” (Before the ellipses was the proposition that each branch should have the power to originate acts, and after the second ellipses was the power “to negative all laws passed by the several states, contravening, in the opinion of the national legislature, the articles of union, or any treaty subsisting under the authority of the Union; and to call forth the force of the Union against any member of the Union failing to fulfil its duty under the articles thereof.”)
As of June 19, 1787, Randolph’s resolutions (#6) read, “That the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation...” followed by the power to negative laws of states that violate the Constitution.
On July 17, 1787, Mr. Sherman moved to change this to, “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,” which did not pass. However, he did read an enumeration of powers, in support of his idea.
Then, Mr. Bedford moved to change the “and moreover” part to “and moreover to legislate, in all cases, for the general interests of the Union; and also in those 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,” and this did pass in the affirmative. ... For a while.
I may need to take a second (or third) look at all of this.
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