Interpreting Ratification

90 Pages Posted: 21 Jul 2023 Last revised: 21 Aug 2023

See all articles by Andrew Coan

Andrew Coan

University of Arizona, James E. Rogers College of Law

David S. Schwartz

University of Wisconsin Law School

Date Written: July 20, 2023

Abstract

For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant.

Focusing on the debate over enumerated powers, this article challenges the unfounded assumptions of Federalist objectivity and Anti-Federalist irrelevance and models the historical method necessary to interpret the ratification debates rigorously. More specifically, the article advances three central claims. First, the probable insincerity of much Federalist advocacy—including The Federalist—significantly undercuts its authority as evidence of a determinate original public meaning. Second, Anti-Federalist advocacy opposing ratification is much more probative evidence of original public meaning than has generally been recognized. Third, the most prominent arguments for privileging Federalist over Anti-Federalist advocacy are internally flawed and historically unfounded. More important, none of those arguments can be squared with the tenets of public-meaning originalism.

All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law.

Keywords: Federalism, Enumeration, Enumerated Powers, Commerce Power, Spending Power, General Welfare, Necessary and Proper Clause, Federalism, Originalism, Original Public Meaning, Original Meaning, Preamble, Federalists, Anti-Federalists, The Federalist, Federalist Papers, Contextual Enrichment, Sincerity

Suggested Citation

Coan, Andrew and Schwartz, David S., Interpreting Ratification (July 20, 2023). 1 J. Am. Con. Hist. 449 (2023), Arizona Legal Studies Discussion Paper No. 23-17, Univ. of Wisconsin Legal Studies Research Paper 1780, Available at SSRN: https://ssrn.com/abstract=4516703

Andrew Coan (Contact Author)

University of Arizona, James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

David S. Schwartz

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
442
Abstract Views
1,220
Rank
110,499
PlumX Metrics