Monday, August 25, 2008

Ramsey on Missouri v. Holland and Historical Textualism

Missouri V. Holland and Historical Textualism is a new article by Michael D. Ramsey, University of San Diego School of Law. It will appear in the Missouri Law Review (2008). Here's the abstract:
A longstanding debate, recently reinvigorated, is whether the U.S. Constitution imposes subject matter limitations on federal treatymaking akin to the limits it places, through Article I, Section 8, on federal legislation. That debate was supposedly settled in favor of substantively unlimited treatymaking power by the U.S. Supreme Court in Missouri v. Holland (1920), but leading "originalist" accounts contend that the Constitution's original meaning supports a contrary result.
This essay defends Holland's conclusion against its originalist detractors, not so much as a matter of history but as a matter of methodology. It outlines and applies an approach it calls "historical textualism" as a way to determine the Constitution's original meaning. In brief, historical textualism focuses on the specific words of the Constitution's text as they were situated and understood in the context in which they were written. Among other things, historical textualism discounts structural or "framers' intent" arguments not tied to the meaning of particular phrases and abstract textual arguments not tied to understandings of particular phrases reflected in the historical record. Although receptive to arguments based on drafting, ratification and post-ratification understandings, it is most interested in how relevant phrases were used and understood prior to the Constitutional Convention or in contexts not directly implicating the particular controversy at issue.
Applying this idea of historical textualism, this essay finds that the Constitution's original meaning finds fully supports Holland's conclusion that the treatymaking power is not substantively limited. Its contrast with other originalist analyses finding subject matter limits on federal treatymaking underscores the differences between historical textualism other approaches for determining historical meaning.

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