THE CONSTITUTIONAL LAW OF INTERPRETATION.

• Author: Bellia, Anthony J., Jr.

INTRODUCTION 521 I. Rules Governing the Transfer of Sovereign Rights 523 A. General Rules of Interpretation 525 B. Specific Rules Governing Transfers of Sovereign Rights 529 II. THE CONSTITUTION AS A TRANSFER OF SOVEREIGN RIGHTS 536 A. The Declaration of Independence 538 B. The Articles of Confederation 541 C. The Constitutional Convention 543 D. The Ratification Debates 547 III. EARLY INTERPRETATIONS OF THE CONSTITUTION 552 A. Interpretation by the Pre-Marshall Court 552 1. Chisholm v. Georgia 553 2. Calder v. Bull 559 B. Interpretation by the Marshall Court 562 1. Theories of Strict Construction 563 2. Ordinary Interpretation by the Marshall Court 566 a. McCulloch v. Maryland 566 b. Gibbons v. Ogden 571 c. Barron v. Baltimore 573 IV. IMPLICATIONS 576 A. Originalism as Constitutional Law 577 1. The Background Law of Interpretation 579 2. The Constitution and Background Rules 587 3. Textualism and Background Rules 595 4. Originalism vs. Nonoriginalism 598 B. Residual State Sovereignty Under the Constitution 603 1. State Sovereign Immunity 606 2. The Anticommandeering Doctrine 613 3. The Equal Sovereignty Doctrine 614 CONCLUSION 615 INTRODUCTION

Commentators have long debated the proper method of constitutional interpretation and whether the Constitution itself provides meaningful guidance for its own interpretation. Arguments often focus on the extent to which the Constitution is analogous to other legal instruments--such as contracts, statutes, and state constitutions--and how, if at all, such analogies should inform its interpretation. When it comes to constitutional interpretation, however, the function of the Constitution is more important than its form. Under the law of nations, a legal instrument--in whatever form--could transfer sovereign rights and powers from one sovereign to another only through clear and express terms. If the customary meaning of the instrument at the time it was adopted did not clearly and expressly transfer a sovereign right, then the right in question remained undisturbed. These rules were an inextricable part of any legal instrument used to alienate sovereign rights. Accordingly, these rules were well known to the Founders and played an integral role in the drafting and ratification of the Constitution.

The Constitution was an instrument used by the people of the several States to transfer a significant--but limited--set of sovereign rights and powers from one group of sovereigns (the States) to another sovereign (the federal government). After declaring their independence from Great Britain, the former Colonies attained the status of "Free and Independent States." Under the law of nations, such States enjoyed all of the sovereign rights and obligations of every other independent state, no matter how large or how small. The States initially used the Articles of Confederation to transfer some of their sovereign rights and powers to a weak central government. When this approach failed, the Philadelphia Convention proposed an entirely new Constitution to replace the Articles. The Constitution retained the States but transferred a larger--albeit still limited--set of sovereign rights and powers to a new federal government.

The Constitution cannot be fully understood without resort to background rules supplied by the law of nations. The term "States," for example, was a term of art drawn from the law of nations. After declaring themselves to be "Free and Independent States," the former Colonies continued to use the term "States" to refer to themselves in both the Articles of Confederation and the Constitution. As used in these documents, the term "States" can only be understood by reference to the rules supplied by the law of nations that both defined and regulated the entities to which the term referred. These rules not only spelled out the rights and powers of sovereign states, but also established the means by which states could adjust their rights vis-a-vis other sovereigns. States followed these rules when they transferred portions of their sovereign rights and powers to other sovereigns, and interpreters applied the same rules to determine the scope and effect of such transfers. For this reason, these rules were an inseparable part of every legal instrument--including the Constitution--used to transfer sovereign rights and powers. Under these rules, the "States" referred to in the Constitution possessed the full complement of sovereign rights and powers minus those that their people clearly and expressly transferred to the new federal government in the instrument. In addition, the ordinary and customary meaning of the instrument at the time of its adoption determined which rights and powers it clearly and expressly transferred.

The Founders were well-versed in the rules of interpretation governing instruments used to transfer sovereign rights and understood them to be part and parcel of the Constitution. During the debates over whether to ratify the Constitution, Alexander Hamilton explained that because the Constitution involved a "division of the sovereign power," (1) it was subject to "the rule that all authorities of which the States are not explicitly divested in favour of the Union remain with them in full vigour." (2) Hamilton regarded this rule as an inextricable part of the Constitution itself. The rule that the States retain all powers "not explicitly divested," he explained, "is not only a theoretical consequence of that division [of sovereign powers], but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed constitution." (3)

Recognizing that the Constitution admitted the background rules governing the alienation of sovereign rights has important implications for constitutional interpretation. First, because the Constitution is inseparable from the rules prescribed by the law of nations to govern instruments used to transfer sovereign rights, the Constitution itself requires some form of originalism in constitutional interpretation. These rules require interpreters to give such instruments their customary meaning as of the time of adoption. The core tenets of originalism comply with these rules. This means that, with respect to the Constitution, some form of originalism was baked into the cake from the start. Second, the nature of the Constitution and the rules governing its interpretation confirm that the Supreme Court has properly upheld the residual sovereign rights of the States through doctrines such as sovereign immunity, the anticommandeering doctrine, and the equal sovereignty doctrine. Under the applicable rules, the States necessarily retained these sovereign rights because they were not clearly and expressly alienated in the Constitution.

This Article proceeds in four parts. Part I recounts the rules of the law of nations that governed the interpretation of legal instruments claimed to transfer rights and powers from one sovereign to another. Under these rules, interpreters were to give such instruments their ordinary and customary meaning as of the time of adoption and find an alienation of sovereign rights only if set forth in clear and express terms. Ambiguous or vague terms could not alienate sovereign rights and powers. These rules avoided misunderstandings and prevented conflict among sovereigns. Part II explains that the Constitution was fundamentally an instrument used to transfer a fixed subset of the States' sovereign rights and powers to a new federal government. It begins by recounting the decision by the people of each State to transfer an important portion of their State's sovereign rights first by adopting the Articles of Confederation and then by ratifying the Constitution. It next explains that the Founders understood the effect of these instruments by reference to rules of interpretation supplied by the law of nations. Part III describes how, from its earliest days, the Supreme Court applied these rules to interpret the Constitution. Part IV examines two important implications of recognizing that the Constitution admitted the background rules governing instruments designed to transfer sovereign rights and powers. First, originalism is the constitutional law of interpretation because its core tenets uphold these rules. Second, the Supreme Court has properly recognized several doctrines upholding State sovereign rights and powers that the Constitution did not divest in clear and express terms.

1. RULES GOVERNING THE TRANSFER OF SOVEREIGN RIGHTS

   Although the Constitution declares itself to be law--specifically, "the supreme Law of the Land" (4)--scholars have long observed that the Constitution did not fit neatly into any typical category of legal instruments. Accordingly, scholars have debated whether the Constitution was most akin to a statute, a treaty, a contract, or some other kind of instrument, subject to the corresponding rules of interpretation that governed such instruments. (5) Although the Constitution's form did not precisely mirror any of these archetypes, it nonetheless performed a familiar legal function subject to well-known rules of interpretation. Specifically, the Constitution transferred sovereign rights and powers from one group of sovereigns (the preexisting "States") to another sovereign (the newly created federal government). Instruments used to make such adjustments were governed by a set of established rules supplied by the law of nations. Thus, the particular form of the Constitution was less important than its nature and function in determining the applicable law of interpretation.

   Adjustments of sovereign rights among states were momentous acts with serious consequences and thus subject to strict rules. Under the law of nations, all sovereign states possessed a set of rights and powers that all other states were required to respect. A state could transfer or alienate its rights in a legal instrument, but only if it did so clearly and expressly. In...