For claims about constitutional interpretation that hinge on the Constitution’s “original meaning,” it matters whether members of the Philadelphia Convention, or the state ratifying conventions, or the early post-ratification congresses, asserted that the Constitution was a compact of the states; or whether, instead, compact theory was a novelty that gained adherents only much later.
By David S. Schwartz. The thesis in “The International Law Origins of American Federalism” is mistaken: the Framers consistently and systematically rejected an international law conception of federalism. While Bellia & Clark’s article could offer a serviceable origin story for compact theory, it fails as an origin story for American federalism.
By Andrew Coan and David S. Schwartz. A proper interpretation of the ratification debates undermines any 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.