"Resolution VI": the Virginia Plan and authority to resolve collective action problems under article I, section 8.

• Author: Lash, Kurt T.

American courts have traditionally followed the general principle of limited enumerated federal power in determining the scope of national authority. Recently, however, a group of influential constitutional scholars such as Jack Balkin, Robert Cooter, Andrew Koppelman, Neil Siegel and others have called for doing away with this traditional principle and replacing it with the principle declared in Resolution VI of the Virginia Plan. Originally introduced in the Philadelphia Constitutional Convention, Resolution VI declares that federal power should be construed to reach all matters involving the "general interests of the Union," those to which the "states separately are incompetent" and those affecting national "harmony." Under this principle, Congress has power to regulate all collective action problems of national importance. In support of their claim, Resolution VI proponents argue that the members of the Philadelphia Convention adopted Resolution VI and sent the same to the Committee of Detail with the expectation that the resulting text would be based on this overriding principle of national power, and that the framers accepted the text of Article I, Section 8 as the enactment of Resolution VI. These scholars also claim (or rely on the claim) that Philadelphia Convention member James Wilson publicly declared during the ratification debates that the framers based Article I, Section 8 on the principle of Resolution VI.

A close reading of the historical sources, however, shows that the framers did not view Article I, Section 8 as having operationalized the general principle of Resolution VI and authorizing federal action in all cases in which the "states separately are incompetent." In fact, they expressly stated otherwise. Even more importantly, it turns out that there is no historical evidence that Resolution VI played any role whatsoever in James Wilson's speech or anywhere else during the ratification debates. Claims to the contrary are based on errors of historical fact.

INTRODUCTION I. THE HISTORY OF RESOLUTION VI A. May, 1787 B. July, 1787 1. Roger Sherman's Proposal 2. Gunning Bedford's Amendment II. CURRENT THEORIES OF "RESOLUTION VI" A. Textual Meaning v. Textual Construction B. The Claims of Resolution VI Advocates III. RESOLUTION VI AND THE ORIGINAL INTENT OF THE FRAMERS A. The Intent Behind Resolution VI B. The Proposed Power of Incorporation in Cases When "Individual States May be Incompetent" IV. JACK BALKIN, ORIGINAL PUBLIC MEANING AND RESOLUTION VI A. James Wilson's "General Principle" of Federal Power B. The Two Versions of James Wilson's Speech CONCLUSION INTRODUCTION

Currently, the Supreme Court interprets federal power under Article I, Section 8 in a manner that emphasizes both limited textual enumeration (1) and the need for judicial maintenance of the line between federal and state authority. (2) Recently, however, a group of influential constitutional scholars including Jack Balkin, Robert Cooter, Andrew Koppelman, Neil Siegel and others have suggested that courts ought to embrace Resolution VI of the 1787 Virginia Plan as the guiding principle for interpretation or construction of federal power under Article I, Section 8. (3) According to Resolution VI, federal power should be construed to reach all matters involving the "general interests of the Union," those "to which the States are separately incompetent" and those affecting national "harmony." (4) As described by most of its advocates, Resolution VI authorizes Congress to regulate all collective action problems of national importance. (5)

In support of their claims, Resolution VI scholars argue that the members of the Philadelphia Convention adopted the resolution and sent the same to the Committee of Detail with the expectation that the resulting text would be based on this overriding principle of national power, and that they accepted the text of Article I, Section 8 as the enactment of Resolution VI. These scholars also claim (or rely on the claim) that Philadelphia Convention member James Wilson publicly declared during the ratification debates that the framers based Article I, Section 8 on the principle of Resolution VI. A close reading of the historical sources, however, shows that the framers did not view Article I, Section 8 as having operationalized the general principle of Resolution VI and allowing federal action in all cases in which the "States are separately incompetent." (6) In fact, they expressly stated otherwise. (7) Even more importantly, it turns out that there is no historical evidence that Resolution VI played any role whatsoever during the ratification debates. Claims to the contrary are based on an historical mistake.

As amended and ultimately adopted in the Philadelphia Constitution Convention, Resolution VI declared that Congress should have power "to legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation." (8)

According to the advocates of Resolution VI, power to "legislate ... in those Cases where the States are separately incompetent" allows Congress to act in all cases affecting the national interest that involve "collective action problems" where states are unwilling or unable to act individually. (9) In fact, according to Resolution VI, any subject affecting the "general Interests of the Union," or which cannot "competently" be handled at a state level, or which affects the "Harmony of the United States" falls within the scope of federal power. (10)

Although briefly and unsuccessfully raised at the time of the New Deal, (11) the current advocacy of Resolution VI represents a new move in the ongoing debate over the proper scope of national regulatory authority. Under the interpretive principle announced by Resolution VI, courts should not be interpreting text and precedent in a manner that maintains a line between state and federal responsibilities. Instead, courts should simply determine whether the matter involves an issue of national importance beyond the "competency" of the individual states. Under this approach, all congressionally identified "collective action problems" by definition fall within the constitutional powers of Congress, regardless of subject matter and regardless of the intrusion into matters traditionally left to state control. (12)

If adopted, this approach would mark a dramatic departure from the current jurisprudence of the United States Supreme Court. For more than seventy years, the opinions of Chief Justice John Marshall in McCulloch v. Maryland (13) and Gibbons v. Ogden (14) have served as the foundation for judicial construction of federal power. (15) John Marshall's interpretive approach in these two cases has proven capacious enough to justify the post-New Deal regulatory state (16) while at the same time preserving the basic concept of limited and enumerated federal power. (17) Although McCulloch is probably best known for its broad reading of the Necessary and Proper Clause, (18) and Gibbons for its broad reading of commerce, (19) both decisions expressly embraced the concept of limited, enumerated power and federalism-based reservations of local regulatory autonomy. (20) According to Marshall, "[t]he enumeration presupposes something not enumerated," (21) and in both McCulloch and Gibbons he suggested a number of subjects and legal categories that remained beyond the legitimate reach of Article I, Section 8's limited delegation of federal authority. (22) This "flip side" to Marshall's otherwise generous reading of federal power informs the current Supreme Court's limited reading of the Interstate Commerce Clause (23) and its preservation of areas traditionally left to the exclusive control of the states. (24) This reading of federal power reflects a principle that extends back to the ratification of the Constitution. As James Madison explained in Federalist No. 14, "the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects." (25) Thus, as broad as contemporary judicial construction of federal power may be, the mere failure of individual state action on an issue of national interest (a so-called "collective action problem") cannot by itself justify an assertion of federal authority unless that authority can be derived from the textual enumeration of Article I, Section 8 in a manner that preserves areas of judicially protected state autonomy. (26)

Given the long-standing principle of enumerated power, the traditional limited reading of cases like McCulloch and Gibbons, and the fact that Resolution VI is not part of the Constitution, advocates of Resolution VI carry a heavy persuasive burden if they wish to establish an altogether new principle of national power. (27) The claim most commonly made on behalf of Resolution VI is that it represents a principle embraced by the Framers themselves. (28) According to this argument, the members of the Philadelphia Constitutional Convention adopted Resolution VI and sent the same to the Committee of Detail with the expectation that the resulting constitutional text would operationalize the Convention's adopted understanding of the proper scope of national power. (29) Because Resolution VI represented framers' understanding of the proper scope of national power, courts may legitimately rely on Resolution VI as an interpretive guide to constructing the delegated powers of Article I." (30)

In some ways, this is a surprising argument. Very few scholars today accept the search for framers' intent as a persuasive or even workable approach to constitutional interpretation." (31) Original intent originalism has been subjected to a withering line of scholarly criticism for more than two decades and has been abandoned by most contemporary...