Charters, Compacts and Tea Parties: The Decline and Resurrection of a Delegation View of the Constitution

42 Pages Posted: 5 Apr 2010 Last revised: 8 Jun 2010

See all articles by Edward Fallone

Edward Fallone

Marquette University - Law School

Date Written: April 2, 2010

Abstract

This article seeks to address a gap in constitutional law scholarship: the absence of a systematic examination of the manner in which the contractual nature of the Constitution illuminates the original understanding of the text. By closely examining the historical evidence, I argue that the interpretation of the Constitution has been influenced by dueling conceptions of contractual origin. One view treats the Constitution as a charter that delegates limited and defined authority to the federal government. The second view treats the Constitution as a compact the terms of which reflect a bargain between the federal government and a discrete body public. After discussing the important differences between these two views of the Constitution, the article discusses the manner in which the compact view came to eclipse the delegation view over the course of our nation’s history. However, the article concludes by underscoring the connection between the Tea Party Movement and the values promoted under the delegation view, and suggests that the contemporary public understanding of the Constitution may reflect the re-ascendancy of the delegation view.

Keywords: constitutional law, constitution, contractual, tea party, delegation, immigration law

Suggested Citation

Fallone, Edward, Charters, Compacts and Tea Parties: The Decline and Resurrection of a Delegation View of the Constitution (April 2, 2010). Wake Forest Law Review, Vol. 45, 2010; Marquette Law School Legal Studies Paper No. 10-18. Available at SSRN: https://ssrn.com/abstract=1583501

Edward Fallone (Contact Author)

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States

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