Robert J. Kaczorowski (Fordham University School of Law) has posted Inherent National Sovereignty Constitutionalism: An Original Understanding of the US Constitution (Minnesota Law Review, Vol. 101, No. 699, 2016) on SSRN. Here is the abstract:
This article is an original work of scholarship in several respects. As the title suggests, it presents a novel interpretation of the “original understanding” of the Constitution, which I call the inherent national sovereignty theory. This theory viewed the national government as a sovereign government and Congress as a sovereign legislature imbued with the countless legislative powers that sovereign legislatures possesses. The sources of this understanding are themselves original. The article is based in part on a systematic analysis of the political debates relating to politically defining actions of the federal government in this nation’s early history: the incorporation of the First Bank of the United States in 1791; the decision to allow the bank’s charter to expire in 1811; and the decision to incorporate the Second Bank of the United States in 1816. No one has previously engaged in a systematic constitutional analysis of these political debates. I have found that bank proponents asserted Congress’s inherent sovereign legislative power to explain Congress’s authority to incorporate the First and Second Banks.
The article also presents a novel interpretation of the Supreme Court’s decision in McCulloch v. Maryland, which upheld the constitutionality of the Second Bank of the United States in an opinion that many scholars believe to be the most important in the Court’s history. Viewed for the first time within the context of over twenty years of political/constitutional debates relating to the First and Second Banks, this article shows that the opposing lawyers in this case argued the inherent national sovereignty theory and the strict construction, states’ rights theory of the Constitution popular among today’s conservatives. It shows that Chief Justice John Marshall’s opinion for a unanimous Court upheld the constitutionality of the Second Bank by affirming Congress’s inherent sovereign legislative powers. The article also shows that Congress based other actions, and the Court upheld these actions in other cases, by affirming the inherent national sovereignty theory of the Constitution.
This article is original in other significant ways. In identifying actions taken by the federal government pursuant to a theory of inherent national sovereignty, the article presents a novel rebuttal to the current “new originalists” who argue that the original understanding of the Constitution posited a strict construction, states’ rights-oriented, and fixed understanding of limited powers. The McCulloch Court expressly rejected this theory. More broadly, this article presents a discussion of the original understandings of the Constitution within the constitutional/political process of governing. In this context, proponents of inherent national sovereignty understood the Constitution as a dynamically-evolving framework of government whose meaning would develop over time through the political process and by the specific actions taken by Congress and the executive branch of the federal government.
Many of the leading political actors in the nation’s founding generation considered the constitutional/political process itself as an authoritative means of constitutional construction. They regarded congressional actions as having precedential authority in deciding questions of constitutional construction. Consequently, political practice gave meaning to the text of the Constitution. The Constitution was to be constructed by the political branches of the federal government, primarily by Congress, through the dynamic process of governing. The Court’s role was to uphold the constitutionality of congressional actions to meet the nation’s needs unless Congress exercised a power that was expressly prohibited or explicitly reserved to the states or to the people.
Inherent national sovereignty constitutionalism is fundamentally different from today’s understanding of the Constitution, of the constitutional/political process, and of the relationships of the branches of government within the constitutional structure. It entrusts much greater autonomy to Congress and the executive to govern and much greater authoritativeness to Congress’s interpretation of the Constitution in its function to make law and public policy than our system today allows. It envisions a more modest role for the judiciary in reviewing Congress’s legislative actions and the policies they entail. This theory centers policy making in the political branches of the government rather than in the Supreme Court where it currently exists. Moreover, inherent national sovereignty constitutionalism relegates constitutional interpretation in making political decisions to a less important role and requires decision makers to justify their actions on their practical merits instead of the Constitution’s meaning. In short, inherent national sovereignty constitutionalism presents a fundamentally different understanding of the way government should function under the Constitution.
Important and highly recommended.
The great merits of this paper are largely independent of its purported engagement with the "new originalism. It is telling that the phrases "public meaning," "original methods," and even the older locution "original intent" do not appear in this article. Nor are there any citations to the theoretical works of any of the leading "new originalist" scholars; I searched for a dozen "likely suspects" and found nary a mention. The following passage seems to represent the author's understanding of "new originalism."
Today's "new originalists" use a theory of constitutional construction that is founded on an assumption that is contradicted by the historical evidence presented within, namely, that they are embracing an understanding of the Constitution that was the general understanding of the Constitution.
I find this passage difficult to parse. On the surface, it seems to assume that the method of contemporary originalism is to reconstruct something called "the general understanding of the Constitution." So far as I know, there are no "general understanding originalists." A Westlaw search for that phrase and several variations suggests that no self-identified originalist has ever advanced that view. Most, but not all, of the so-called "new originalists" affirm "public meaning originalism," the view that "original meaning" should be conceived as the public meaning of the constitutional text at the time each provision was framed and ratified. Another important strand in the new originalism focuses on "original methods" and the closely related idea of "original law." Based on my knowledge of the literature, the "original general understanding" view has only been advanced by the Professor Kaczorowski.
Some of the ideas in this article could be reconstructed using originalist methods. In this regard, readers of the article should also consult the works of John Mikhail on the necessary and proper clause, especially, John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045 (2014). Although the author does not cited Mikhail, there is a clear affinity between the "inherent national sovereignty" theory and Mikhail's views.