Lee J. Strang, University of Toledo College of Law, has published An Evaluation of Historical Evidence for Constitutional Construction From the First Congress’ Debate Over the Constitutionality of the First Bank of the United States at 14 University of St. Thomas Law Journal 193 (2018). Here is the abstract.
In this Essay, I review a modest selection of important evidence from the early Republic, the debate over the constitutionality of the First Bank of the United States in the First Congress, to evaluate whether, to what extent, and how Americans utilized constitutional construction in the early Republic. This Essay derives a number of tentative conclusions from this evidence. First, the participants in this early debate appeared to believe that a necessary precondition for constitutional construction — underdeterminacy — existed. Second, the participants also argued as if, after the application of a number of interpretative rules, the Constitution provided a determinate answer to the constitutional question. Third, the participants seemed ultimately to conclude that the Constitution’s meaning provided a determinate answer to the question under debate (though they continued to disagree about what that answer was).Download the essay from SSRN at the link.