Tuesday, August 16, 2011

Update on the Resolution VI Debate

Kurt Lash completed his series of posts on Resolution VI (from the Constitutional Convention), which resolution some people had argued should be used as reason to broadly construe the powers of Congress.  For the complete series, along with Prof. Lash's reply to Jack Balkin's response, visit the archive of his posts for the Volokh Conspiracy.  (For a different point of view, including direct responses to Prof. Lash's posts, see Neil Siegel's archive.)

Whenever I discuss constitutional interpretation with people, I try to settle a few fundamental points up front, best stated as I put it once before: "that a legitimate constitutional interpretation is the plausible product of a sincere attempt, beginning with and emphasizing the constitutional text, to determine its original meaning," where the original meaning is the answer to the question, What was the meaning of the rule that its makers understood themselves to have been making?  As the discussion between the participants in the discussion on the Volokh site (and others who are a part of the same discussion, but not on the Volokh site) demonstrates, there are legitimate complications in applying these; for example, there is the question of whether to consider original public meaning or an alternative.  It is as important for proponents of a faithful and honest application of the Constitution to understand this as it is for them to agree, at the outset, that the text is the first, most important, and generally conclusive indicator of its meaning, and that any interpretation ought to be both plausible and honestly reached.

Update (6:38 PM EST, August 16, 2011): In my first sentence, above, I indicated that those who advocate using Resolution VI to interpret the Article I, Section 8 powers of Congress use it to argue for greater federal power.  It is true that this idea has been applied in this way, but it would have been better for me to point out again, as I did a few days ago, that it could very well be used to argue against federal power exceeding certain boundaries, as well.  Additionally, I think it would make sense for me to link to Jack Balkin's response to Lash, so that he may speak for himself.

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