Document Type

Article

Publication Date

2021

Abstract

Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches can be understood, at the founding and at critical junctures along the way, as capable of coexisting in a complex, sometimes uncomfortable, arrangement that draws both upon structural and specific textual elements of grant or prohibition to police the line between central government powers and those retained by the states.

Some of the specific provisions of grant or prohibition in the Constitution have held up well over the course of our nation’s history, but others have fallen out of alignment with the underlying economic, social, and political context within which the Constitution must operate. In those instances, significant pressure has been placed on the Necessary and Proper Clause to bring constitutional doctrine into alignment with contemporary circumstance and, indirectly, with the deeper structures and relationships that ground the constitutional order. Consistent with the insights offered decades ago by Professor Charles Black, this Article argues that the Supreme Court better serves the constitutional order when it draws inferences directly from those deeper structures and institutional relationships, which were embedded in the original Constitution and which have endured and been reaffirmed over time, and avoids a strained reading either of the enumerated power itself or of the Necessary and Proper Clause.

Publication Citation

54 Loyola L.A. Law Review 675 (2021)

Disciplines

Constitutional Law | Law

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