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Preconstitutional Federal Power

Matthew L. M. Fletcher

Michigan State University College of Law


82 Tulane Law Review 510 (2007)
Michigan State University Legal Studies Research Paper No. 04-18

In two fields of constitutional law, the Supreme Court has acknowledged that the federal government may possess preconstitutional power, or national authority derived not from the Constitution but from the very fact of sovereignty. This Article analyzes the two areas of law - the Foreign Affairs Power and the Indian Affairs Power - and assesses their viability in future cases. The case recognizing a preconstitutional Foreign Affairs Power resting with the Executive branch, United States v. Curtiss-Wright Export Corp., suffers from poor historical reasoning and has little precedential weight in modern foreign affairs cases, but has never been overruled. The Indian Affairs Power case, United States v. Lara, decided in 2004, included no historical reasoning and only offered the theory as dicta. However, the Court raised the theory, perhaps, as a means of placating the textualists on the Court who do not view the Indian Commerce Clause as a viable source of Congressional power in Indian Affairs. This Article offers a best defense for the proposition that Congressional plenary power in Indian Affairs might derive from a preconstitutional source, a defense that includes the original understanding of the Indian Affairs Power and that, unlike the Foreign Affairs Power, did survive the ratification of the Constitution.

Number of Pages in PDF File: 57

Keywords: foreign affairs, war powers, enumerated powers, plenary power, indian law, curtiss-wright, lara, legal history, originalism

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Date posted: March 7, 2007 ; Last revised: January 26, 2016

Suggested Citation

Fletcher, Matthew L. M., Preconstitutional Federal Power (2007). 82 Tulane Law Review 510 (2007); Michigan State University Legal Studies Research Paper No. 04-18 . Available at SSRN: https://ssrn.com/abstract=968750

Contact Information

Matthew L. M. Fletcher (Contact Author)
Michigan State University College of Law ( email )
318 Law College Building
East Lansing, MI 48824-1300
United States
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