ICYMI: Greenfield on Original Penumbras: Constitutional Interpretation in the First Year of Congress @Kentgreenfield1 @BCLAW @ConnLRev

ICYMI: Kent Greenfield, Boston College Law School, has published Original Penumbras: Constitutional Interpretation in the First Year of Congress at 26 Connecticut Law Reivew 79 (1993).

The records of the floor debates in the House of Representatives during 1789, the first year of Congress, are among the most revered historical sources for constitutional scholars. In 1789, the House was filled with men who had been instrumental in both the fight to gain independence from Britain and in the founding of the nation. Eight members of the House, including James Madison, had been delegates to the Constitutional Convention in Philadelphia two years earlier. The First Congress was charged with putting the new Constitution into effect. Its decisions on issues ranging from the creation of the executive departments to the establishment of the judiciary amounted to, in effect, the first institutionalized constitutional decision making of the new nation. The Supreme Court has used the records of the First Congress as the basis for numerous decisions on specific constitutional questions. Constitutional scholars have also looked to the First Congress for insight into substantive constitutional issues. Unfortunately, neither the Court nor scholars have looked to the records of the First Congress to guide or to inform the contentious debate over broad questions of constitutional interpretation. Taking advantage of the recent publication of a comprehensive record of the First Congress, this Article provides a review of the major debates that turned on constitutional issues and the interpretive methodologies Members used in reaching their conclusions. In addition, this Article sets out two important insights: (1) Members of the First Congress used an extraordinarily broad range of interpretive methodology to construe the Constitution, and (2) Members did not generally consider the intent of the Philadelphia Framers to be determinative. These insights have implications for how judges and scholars interpret the Constitution today. Part II of this Article describes in detail the six major debates in the House of Representatives in 1789 that turned on questions of constitutional interpretation. Part III demonstrates more fully the implications of these findings and suggests that the records of the First Congress should be used as a guide by judges and scholars as they grapple with modem constitutional interpretation.

Download the article from SSRN at the link.