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'Resolution VI': National Authority to Resolve Collective Action Problems Under Article 1, Section 8

47 Pages Posted: 25 Jul 2011 Last revised: 30 Sep 2012

Kurt T. Lash

University of Richmond School of Law

Date Written: July 25, 2011

Abstract

American courts have traditionally followed the general principle of limited enumerated federal power in which certain matters are reserved to state-level control regardless of purported national importance or state “competency.” Recently, however, a group of influential constitutional scholars have called for doing away with the traditional federalist understanding of enumerated national power and replacing it with their interpretation of a principle originally declared in Resolution VI of the so-called “Virginia Plan.” Introduced in the early stages of the 1787 Philadelphia Constitutional Convention, Resolution VI declares that federal power should be construed to reach all cases involving the “general interests of the Union,” those to which the “states separately are incompetent” and those affecting national “harmony.” Under this principle, Congress would have power to regulate any purported collective action problem of national importance, regardless of subject matter. Resolution VI proponents argue that the members of the Philadelphia Convention adopted Resolution VI and sent the same to the Committee of Detail with the expectation that the resulting text would embrace this overriding principle of national power. They also claim (or rely on the claim) that Philadelphia Convention member James Wilson publicly declared during the ratification debates that the framers viewed Article I, Section 8 as the textual “enactment” of Resolution VI.

A close reading of the historical sources, however, shows that the Framers did not view Article I, Section 8 as having operationalized the general “state incompetency” principle of Resolution VI. In fact, they expressly stated otherwise. Nor is there any historical evidence that James Wilson (or anyone else) referred to Resolution VI during the ratification debates. Claims to the contrary are based on errors of historical fact.

Keywords: Resolution VI, Philadelphia Constitutional Convention, Virginia Plan

Suggested Citation

Lash, Kurt T., 'Resolution VI': National Authority to Resolve Collective Action Problems Under Article 1, Section 8 (July 25, 2011). 87 Notre Dame L. Rev. (June 2012); Illinois Public Law Research Paper No. 10-40. Available at SSRN: https://ssrn.com/abstract=1894737 or http://dx.doi.org/10.2139/ssrn.1894737

Kurt T. Lash (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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