Implied Constitutional Powers in the Founding Era

John Mikhail (Georgetown University Law Center) has posted Fixing Implied Constitutional Powers in the Founding Era (Constitutional Commentary (Forthcoming)) on SSRN. Here is the abstract:

The Second Creation” by Jonathan Gienapp is a marvelous study of the earliest debates over constitutional language, meaning, and interpretation. In virtually every aspect, the book is brilliantly conceived, meticulously researched, and masterfully executed. This essay agrees with Gienapp’s key insight that, in many respects, the Constitution was obscure, unfinished, and uncertain in 1789, and we can learn a great deal by paying closer attention to how constitutional debates actually unfolded in the first years after its adoption. A close encounter with that history reveals that constitutional meanings were ambiguous, unstable, and “up for grabs” right from the start. Nonetheless, the essay challenges Gienapp’s thesis to some extent by examining the earliest congressional debates over implied powers and offering a different interpretation of these events than he does, which focuses less on issues of language, meaning, and ontology, and more on the complex interplay of economic interests, regional alignments, and political power. By setting aside the dizzying swirl of semantics and considering how members of Congress actually voted on the removal debate, amendments, the bank bill, and other early controversies, one can identify some remarkably consistent through lines that render the entire sequence of events, and the talking points of politicians, less inchoate and more intelligible. As with so much else that occurred in the founding era, two key factors explaining what transpired are land and slavery.

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