Further Thoughts on the Constitutional History of Federal Power Over Indian Affairs
11 Pages Posted: 8 Nov 2022
Date Written: November 3, 2022
This short piece builds on my earlier response to Robert Natelson's purported "cite check" of my 2015 Yale Law Journal article by addressing some of the arguments in his new Federalist Society Review article. It argues 1) that Natelson misinterprets Federalist 42, 2) that colonial-era regulations of Indian trade support a quite broad scope for the law merchant, and 3) that Natelson mischaracterized my methodology while making some odd methodological choices of his own.
It also briefly offers some new evidence on the historical scope of federal authority in Indian affairs that further supports an interpretation of the meaning of "commerce with the Indian tribes" that encompasses intercourse.
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