Expounding the Constitution.

• Author: Peterson, Farah

ARTICLE CONTENTS INTRODUCTION 6 1. EARLY AMERICAN STATUTES AND TWO 14 PARADIGMS OF FOUNDING-ERA INTERPRETATION A. Private Acts Received Strict Interpretations; Public 16 Acts Received Broad and Purpose-Oriented Interpretations. B. Courts Interpreting Private Acts Looked to the 23 Subjective Intentions of the Actual Legislators; Courts Interpreting Public Acts Looked to the Intentions of an Idealized Legislature. C. Legislative History Was Never Relevant to the 25 Interpretation of a Public Act but Could Sometimes Be Helpful when Interpreting a Private Act. D. Beneficiaries of Private Acts Had to Apply to 26 the Legislature to Cure Any Defects; when a Public Act Required Amendment, Courts Sometimes Supplied One Themselves. E. These Rules Describe Two Paradigms of Interpretation 29 with Broader Applications in Founding-Era Jurisprudence. II. THE INVENTION OF STRICT 31 CONSTRUCTION A. By the People or by the States: Choosing Between 32 Public and Private Framing B. The Bank of the United States and the 36 Emergence of the Private-Act Analogy C. The Alien and Sedition Acts and Compact 40 Theory III. DOCTRINAL IMPLICATIONS: THE 46 MARSHALL COURT AND CONSTITUTIONAL INTERPRETATION A. Drawing the Lines of Battle: Marbury 47 v. Madison B. The Issue Joined: Martin v. Hunter's 51 Lessee C. The Public-Act Analogy Ascendant: 56 McCulloch v. Maryland D. The Court in Retreat: Cohens 68 v. Virginia IV. SCHOLARLY AND PRACTICAL 73 IMPLICATIONS A. Statutory Interpretation 73 B. Constitutional Interpretation 78 CONCLUSION 83 INTRODUCTION

Every modern school of constitutional interpretation delights in finding precedent for its method in the Founding era and in the jurisprudence of Chief Justice Marshall. Of course, originalists make history central and have cited the Founders as support for a range of opinions on interpretation. (1) But those opposed to originalism also find precedent for their positions in early America. (2) Both states' rights advocates and those who believe in strong federal government have relied on history for support. (3) This habit of relying on texts from the Founding generation to validate modern views has led to significant historical oversights, however. It has made history's important legal thinkers appear shallow, unsophisticated, and intellectually disorganized, if not incoherent. Today's scholarship makes Chief Justice Marshall at once a modern textualist-that is, a jurist who believes in reading text strictly and literally--and a modern purposivist--that is, a jurist who believes in pragmatic interpretation to accomplish a law's purposes.

This Article begins from the premise that we have failed to take full account of the Founding era as a period with a mature and developed legal system of its own--one with interpretive debates and schools of thought unique to that era. The Article then argues that considering early Americans and their methodological debates on their own terms, rather than as progenitors of today's interpretive schools, yields a key and overlooked insight: the centrality of the distinction between interpretive conventions applicable to public and private laws.

Judges and statesmen of the early Republic had heated exchanges over the importance of hewing to the text in constitutional interpretation, and they advanced dueling interpretive prescriptions. But in spite of all of the attention we have lavished on Hamilton, Jefferson, Madison, Marshall, Story, and their world, this central interpretive debate has remained unexplored. Modern scholarship has misunderstood the terms of the Founders' debate because it sits on an unfamiliar axis. Instead of arguing over whether the Constitution was, for instance, living or static, these early American conversations were part of a decades-long debate over which of two preexisting, well-established paradigms of interpretation was most appropriate for the new Constitution. Without this context, we cannot understand some of the most important and most cited constitutional law precedents from this period. And of course, the Founders' own debate about whether the Constitution should be pragmatically or narrowly construed is highly relevant to any contemporary theorist relying on Founding-era views.

The clearest examples of the two methodologies the Founders saw as their options for how the Constitution should be interpreted can be found in the different rules then applicable to the interpretation of private and public legislation. Although this distinction has now largely fallen by the wayside, federal and state legislatures in the age of Jefferson and Marshall engaged in two different kinds of legislative work. Some of that work involved what they would have called public acts. These were the kinds of laws that make up the bulk of what our legislatures pass today: statutes that enact generally applicable rules. Public acts addressed social ills, set standards for industry, regulated behavior, pursued remedial policies, or committed resources to public projects. (4) The legislative process for such acts was much like the process that we know today: a member might propose a measure, which the assembly would debate before referring it to a special committee that would draft proposed language. After further debate and perhaps an opportunity to consult with constituents or experts, the legislature would pass some version of the bill into law. (5)

But public acts were the exception in early American legislation. As Chief Justice Smith of New Hampshire put it in 1806, the number of statutes "which prescribe rules of civil conduct to the citizens, rules for making and expounding contracts, principles of decision on the questions daily agitated in our courts of justice," was quite "small." (6) Instead, much of the legislative business in Congress and state legislatures of the period was devoted to so-called private acts--also called private bills or private legislation--which fixed or determined the legal rights of particular parties. In fact, it was not unusual for the number of private acts to vastly outstrip the number of public acts in a given statelegislative session. (7)

The central characteristic of private bills was their specific character--they determined the legal rights of particular parties in response to particular requests, rather than enacting rules of general applicability. (8) While public acts changed the laws applicable to everybody, private acts usually addressed more targeted concerns. Individuals or groups might petition asking for a special favor--an exemption from some generally applicable law, spot relief for a temporary problem, or the grant of a parcel of state-owned land. The award of a corporate charter or a divorce, for example, would have been granted in an individually debated private act. (9) Many private acts resolved issues that would today be handled by an agency or court. Early American states and the federal government also used private acts to secure private investment in projects that a government today would simply undertake itself. For example, a petitioner might offer to build and maintain a needed road in exchange for the exclusive right to collect tolls, or he might invest in new technology like steam-powered ferries in exchange for the exclusive right to all ferryboat traffic on the Hudson River. (10) In an era of low institutional and bureaucratic capacity, governments used the private-act process to induce private parties to perform needed public services. (11)

In keeping with the highly specific character of these laws, the process for adopting private acts often differed from that used for adopting public legislation. A petitioner would often include affidavits in his or her request, and legislatures would sometimes hear evidence and even cross-examine witnesses before voting on a bill. (12) Private legislation could embody a bargain between the legislature and a private party--selling government land in exchange for payment, for instance--but it did not always take a bargained-for form. It could also be simply a matter of sovereign grace.

The Founding generation understood different types of legislation to entail different methods of interpretation. In brief, public laws received broad, purpose-directed interpretations while private acts received strict, literal interpretations. The Federal Constitution of 1787 was a novel legal instrument, but American lawyers did not make up new principles of interpretation out of whole cloth. They made use of conventions of interpretation already in common use. Disagreements over how to interpret the Constitution were, therefore, also disagreements about which form of written law provided the best analogy. This is the critical context for some of the most famous and formative moments in early American legal history. The debate over whether the Constitution was a compact among the states or whether it sprang from the assembled people was, at bottom, a debate over whether it was more like a legislative bargain memorialized in a private act or whether it was more like a public act announcing the law of the land. The principles of interpretation that flowed from this distinction supplied the doctrinal heritage for the opposing sides in the first arguments about constitutional interpretation, including those concerning the Bank of the United States, the Alien and Sedition Acts, and internal improvements.

Understanding this essential framework brings the most important precedents of the era into sharper view. (13) It allows us to fully appreciate Marshall's statesmanship in Marbury v. Madison, (14) to understand the stakes of Martin v. Hunter's Lessee, (15) and to get Marshall right in McCulloch v. Maryland. (16) What did Marshall mean when he declared that "it is a constitution we are expounding"[phi] (17) To whom was he speaking[phi] This statement, coming at the end of a paragraph advocating broad principles of interpretation, committed the Court to one...