David S. Schwartz, University of Wisconsin Law School, has posted a further contribution to anti-enumerationist constitutional history, The Rhetoric of Deception: Madison's Federalist 37 and the Structure of the Ratification Debates:
--Dan ErnstJames Madison's Federalist 37 is widely regarded by scholars as a political philosophy ur-text or a theoretical exposition of the now-trendy concept of "liquidation." These accounts tend to obscure Madison's very specific purpose in writing the essay: to persuade moderate "swing" voters in the ratification campaign that the Constitution's enumeration of powers could safely be understood as a limitation on the proposed national government's powers. Pro-ratification Federalists were in a bind: the Constitution's text was so plainly ambiguous about whether the enumeration was exhaustive and limiting, or instead illustrative and open-ended, that this textual ambiguity could not be plausibly denied. Yet Federalists were compelled by the political and rhetorical structure of the ratification campaign to deny this ambiguity. Their solution was to make what modern public meaning originalists call a "contextual enrichment" argument, that a facial ambiguity can be resolved by reference to background interpretive principles. For this case, they concocted the now familiar argument that all "federal" constitutions"including both the proposed Constitution and the Articles of Confederation"presumptively limited the central government to its enumerated powers. The argument was dubious and widely disbelieved; worse, as Madison knew, the ambiguity was in fact the intentional product of a compromise at the Philadelphia Convention between nationalist advocates of broad legislative powers and "enumerationist" advocates of limited enumerated powers. Anyone looking to the Framers' intentions to resolve the ambiguity would confirm Anti-Federalist suspicions that the enumeration of powers was intended to allow a post-ratification Federalist government to exercise broad powers.
James Madison (wiki)
This article argues that Federalist 37 was written to address this specific problem. Madison realized the need to obscure the Framers' intentions and cover up the compromise over the enumeration of powers. He sought to do so in Federalist 37 by arguing that ambiguity about the "line of partition" between federal and state power resulted entirely from unintentional and innocent causes: the limits of language and human capacities, rather than an intentional, behind-closed-doors compromise. This argument, Madison hoped, would clear the way for him to elaborate the Federalists' "federal constitutions" argument in Federalist Nos. 39-45 that the enumerated powers were presumptively, and therefore unambiguously limited. In this light, the concept of "liquidation" briefly mentioned in a single sentence in Federalist 37 was of no value, since moderates concerned about excessive national powers would hardly be reassured by having this ambiguity "liquidated" by the Federalist-dominated governments that the ratifiers anticipated.
