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University of Kansas Law Review

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A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, where the Constitution does not speak either expressly or by necessary implication-the Federal Government lacks that power and the states enjoy it. Consequently, "the States can exercise all powers that the Constitution does not withhold from them."' These first principles define the national government, on the other hand, as "'entirely a creature of the Constitution.” Its authority is therefore limited to those "'few and defined"' powers the Constitution delegates to it. Moreover, even expressly delegated powers, such as the power to regulate interstate and foreign commerce, must be cabined. These essential first principles require the courts to limit even further Congress's expressly delegated powers by interpreting them "as having judicially enforceable outer limits." Constitutional federalism thus imposes on the Court the-duty of preserving "entire areas of traditional state concern" from national usurpation. This first principle of judicial review attributes to the courts the role of active overseer of legislative policy. According to this view, the Founders mandated this state sovereignty theory of federalism "'to ensure protection of our fundamental liberties." Recent scholarship presents a much more complicated picture of the Founders' first principles, as my colleague Martin Flaherty argues. Jack Rakove has shown that the essence of "revolutionary constitutionalism" was "avowedly experimental" in nature. He persuasively argues that the Founders did not "[lock] into the Constitution at the moment of its adoption ... a set of definitive meanings.” It also appears that the Founders did not expect their opinions about the Constitution to control later interpretations. Larry Kramer shares this view of the Founders' understanding of the Constitution and argues that the real founding occurred when the Founders put the ratified Constitution into practice. David Currie similarly maintains that "[t]he First Congress was practically a second constitutional convention." He argues, moreover, that Congress and executive officials, no less than judges, interpreted the Constitution and participated in giving the Constitution meaning and definition in the decades following ratification. Unquestionably, the Constitution created a national government of limited powers. However, the Founders' understanding of the scope of its powers was far less limited than the "few and defined" powers the current Court's state sovereignty plurality asserts.