The Yale Law Journal

October 2020

Expounding the Constitution

Constitutional LawLegal HistoryLegislation

abstract. Judges and statesmen of the early Republic had heated exchanges over the importance of hewing to the text in constitutional interpretation, and they advanced dueling interpretive prescriptions. That is why contemporary theorists of all persuasions can find support for their positions in the Founding era. But no side of the Founders’ debate over constitutional interpretation maps perfectly onto a modern school of thought. Modern scholarship has misunderstood the terms of the Founders’ debate because it sits on an unfamiliar axis. Instead of arguing over whether the Constitution was, for instance, living or static, this Article demonstrates that early American lawyers debated whether the Constitution should be interpreted according to the methodologies applicable to public or private legislation.

This distinction among different types of legislation has faded from view because modern legislatures almost never pass private laws—statutes that apply only to one person, group, or corporation. But in early America, private legislation was the majority of legislatures’ business. Generally applicable laws, like those Congress busies itself with today, were the minority. What’s more, American courts had fixed, predictable, and familiar rules of interpretation for each type of law. Private acts received stricter, more text-oriented interpretations, while public acts were interpreted broadly and pragmatically to effectuate their purposes, taking into account new circumstances that the drafters may not have foreseen.

After ratification, critical policy differences emerged among American statesmen in the First Congress. Hamilton and Madison, once united as authors of the Federalist Papers, found themselves on different sides of this debate. Each insisted that the Constitution must be interpreted to vindicate his views, and in the process, they opened a debate about interpretation that would characterize the nation’s constitutional jurisprudence until the 1820s. The Federal Constitution was a novelty. But lawyers don’t tend to make new rules to suit new situations; we prefer to rely on precedent. And that is what these lawyers did, using legal tools devised for interpreting legislation—a form of written law with consistent interpretive rules that were part of the bread-and-butter practice of every American lawyer.

We cannot understand the major cases of the Marshall Court, including Marbury, Martin, and McCulloch without this context. In these cases, litigants argued over, and the Court wrestled with, whether public or private legislation provided the best analogy for the Federal Constitution. The answer dictated whether restrictive or pragmatic rules would govern its interpretation. The terms of these arguments would have been obvious to the legal thinkers of that generation. Yet, in spite of all the attention we have lavished on Alexander Hamilton, Thomas Jefferson, James Madison, John Marshall, Joseph Story, and their world, this central dynamic of their legal culture has remained unexplored.

This Article argues that, during framing and ratification, many of the Founders thought the Constitution would be interpreted according to the rules applicable to public legislation, although statesmen like Jefferson and Madison later took a different view. Chief Justice Marshall’s enduring commitment to the public-act analogy explains his embrace of “implied powers” in McCulloch and underpins the broad, nationalist vision in his other major decisions. These insights are not only critical to understanding those decisions on their own terms, they are also highly relevant to modern constitutional theorists who rely on early American precedent. If the Founders intended that the Constitution would be interpreted according to the rules of public legislation, then the “original” Constitution is a flexible and pragmatic charter, not a fixed and immutable artifact.

author. Professor of Law, University of Chicago Law School. I am grateful to Charles Barzun, Will Baude, Nathaniel Donahue, Bill Eskridge, Bridget Fahey, Jeremy Gordon, Hendrik Hartog, Leslie Kendrick, Genevieve Lakier, John Mikhail, Victoria Nourse, Kent Olson, H. Jefferson Powell, Rich Schragger, Eugene Sokoloff, the participants in the Chase Colloquium at Georgetown, and the participants in my Work-in-Progress talk at Chicago for help and comments on earlier drafts of this paper.


Every modern school of constitutional interpretation delights in finding precedent for its method in the Founding era and in the jurisprudence of Chief Justice Marshall. Of course, originalists make history central and have cited the Founders as support for a range of opinions on interpretation.1 But those opposed to originalism also find precedent for their positions in early America.2 Both states’ rights advocates and those who believe in strong federal government have relied on history for support.3 This habit of relying on texts from the Founding generation to validate modern views has led to significant historical oversights, however. It has made history’s important legal thinkers appear shallow, unsophisticated, and intellectually disorganized, if not incoherent. Today’s scholarship makes Chief Justice Marshall at once a modern textualist—that is, a jurist who believes in reading text strictly and literally—and a modern purposivist—that is, a jurist who believes in pragmatic interpretation to accomplish a law’s purposes.

This Article begins from the premise that we have failed to take full account of the Founding era as a period with a mature and developed legal system of its own—one with interpretive debates and schools of thought unique to that era. The Article then argues that considering early Americans and their methodological debates on their own terms, rather than as progenitors of today’s interpretive schools, yields a key and overlooked insight: the centrality of the distinction between interpretive conventions applicable to public and private laws.

Judges and statesmen of the early Republic had heated exchanges over the importance of hewing to the text in constitutional interpretation, and they advanced dueling interpretive prescriptions. But in spite of all of the attention we have lavished on Hamilton, Jefferson, Madison, Marshall, Story, and their world, this central interpretive debate has remained unexplored. Modern scholarship has misunderstood the terms of the Founders’ debate because it sits on an unfamiliar axis. Instead of arguing over whether the Constitution was, for instance, living or static, these early American conversations were part of a decades-long debate over which of two preexisting, well-established paradigms of interpretation was most appropriate for the new Constitution. Without this context, we cannot understand some of the most important and most cited constitutional law precedents from this period. And of course, the Founders’ own debate about whether the Constitution should be pragmatically or narrowly construed is highly relevant to any contemporary theorist relying on Founding-era views.

The clearest examples of the two methodologies the Founders saw as their options for how the Constitution should be interpreted can be found in the different rules then applicable to the interpretation of private and public legislation. Although this distinction has now largely fallen by the wayside, federal and state legislatures in the age of Jefferson and Marshall engaged in two different kinds of legislative work. Some of that work involved what they would have called public acts. These were the kinds of laws that make up the bulk of what our legislatures pass today: statutes that enact generally applicable rules. Public acts addressed social ills, set standards for industry, regulated behavior, pursued remedial policies, or committed resources to public projects.4 The legislative process for such acts was much like the process that we know today: a member might propose a measure, which the assembly would debate before referring it to a special committee that would draft proposed language. After further debate and perhaps an opportunity to consult with constituents or experts, the legislature would pass some version of the bill into law.5

But public acts were the exception in early American legislation. As Chief Justice Smith of New Hampshire put it in 1806, the number of statutes “which prescribe rules of civil conduct to the citizens, rules for making and expounding contracts, principles of decision on the questions daily agitated in our courts of justice,” was quite “small.”6 Instead, much of the legislative business in Congress and state legislatures of the period was devoted to so-called private acts—also called private bills or private legislation—which fixed or determined the legal rights of particular parties. In fact, it was not unusual for the number of private acts to vastly outstrip the number of public acts in a given state-legislative session.7

The central characteristic of private bills was their specific character—they determined the legal rights of particular parties in response to particular requests, rather than enacting rules of general applicability.8 While public acts changed the laws applicable to everybody, private acts usually addressed more targeted concerns. Individuals or groups might petition asking for a special favor—an exemption from some generally applicable law, spot relief for a temporary problem, or the grant of a parcel of state-owned land. The award of a corporate charter or a divorce, for example, would have been granted in an individually debated private act.9 Many private acts resolved issues that would today be handled by an agency or court. Early American states and the federal government also used private acts to secure private investment in projects that a government today would simply undertake itself. For example, a petitioner might offer to build and maintain a needed road in exchange for the exclusive right to collect tolls, or he might invest in new technology like steam-powered ferries in exchange for the exclusive right to all ferryboat traffic on the Hudson River.10 In an era of low institutional and bureaucratic capacity, governments used the private-act process to induce private parties to perform needed public services.11

In keeping with the highly specific character of these laws, the process for adopting private acts often differed from that used for adopting public legislation. A petitioner would often include affidavits in his or her request, and legislatures would sometimes hear evidence and even cross-examine witnesses before voting on a bill.12 Private legislation could embody a bargain between the legislature and a private party—selling government land in exchange for payment, for instance—but it did not always take a bargained-for form. It could also be simply a matter of sovereign grace.

The Founding generation understood different types of legislation to entail different methods of interpretation. In brief, public laws received broad, purpose-directed interpretations while private acts received strict, literal interpretations. The Federal Constitution of 1787 was a novel legal instrument, but American lawyers did not make up new principles of interpretation out of whole cloth. They made use of conventions of interpretation already in common use. Disagreements over how to interpret the Constitution were, therefore, also disagreements about which form of written law provided the best analogy. This is the critical context for some of the most famous and formative moments in early American legal history. The debate over whether the Constitution was a compact among the states or whether it sprang from the assembled people was, at bottom, a debate over whether it was more like a legislative bargain memorialized in a private act or whether it was more like a public act announcing the law of the land. The principles of interpretation that flowed from this distinction supplied the doctrinal heritage for the opposing sides in the first arguments about constitutional interpretation, including those concerning the Bank of the United States, the Alien and Sedition Acts, and internal improvements.

Understanding this essential framework brings the most important precedents of the era into sharper view.13 It allows us to fully appreciate Marshall’s statesmanship in Marbury v. Madison,14 to understand the stakes of Martin v. Hunter’s Lessee,15 and to get Marshall right in McCulloch v. Maryland.16 What did Marshall mean when he declared that “it is a constitution we are expounding”?17 To whom was he speaking? This statement, coming at the end of a paragraph advocating broad principles of interpretation, committed the Court to one side of an ongoing debate over how the Constitution must be characterized.18 As this Article explains, Marshall meant that he saw the Constitution as the ultimate public law. The interpretive principles he applied followed directly from that premise.19

Part I outlines the distinctions early Americans drew between private and public statutes and the rules of statutory interpretation applicable to each category. These insights contribute to conversations in the field of statutory interpretation.20 Part I shows how the Founders understood their own law of statutory interpretation and why different rules applied to different types of laws. As that Part explains, the motivations for these rules were tied to characteristics of the laws themselves and far divorced from the modern obsession with the metes and bounds of the judicial role.

As Part I explains, however, these two paradigms of interpretation were not limited to the statutory-interpretation context. The rationale justifying strict interpretation of private acts applied to other legal instruments, like treaties. And, many thought, the rationale behind broad, equitable construction of public acts applied to the new Federal Constitution. The purpose of Part I is not to suggest that the Founders thought the new Constitution was legislation. The point is to highlight the two paradigms of interpretation in the Founding era’s legal vocabulary using statutory interpretation, a common application of those paradigms. When deciding which paradigm of interpretation should apply to the new Constitution, they were deciding which other legal instruments provided the best analogies.

Part II explains the relevance of these paradigms to the Founding generation’s debates over constitutional interpretation. It argues that proponents of the view that the Constitution was a “compact”—whether they used the language of treaty, contract, or legislative bargain—were arguing that the Constitution was subject to the rules of interpretation applicable to private legislation. Scholars have mostly treated the connection between the compact theory and strict construction as self-evident, failing to demonstrate why the designation as a compact, on its own, necessitated a narrow interpretive lens. I argue that the “compact” term signaled that the same quality justifying strict construction in the private act or treaty context—namely, the limited delegation of power by a sovereign—obtained with the new constitution. That is why the term entailed strict construction. And that is why the term also imported the rest of the suite of rules applicable to private acts, including attention to legislative history (known now as “original intent”) and a preference for amendment to fix defects.21

Part III uses this framework to reevaluate cases on every Constitutional Law syllabus, including Marbury v. Madison, Martin v. Hunter’s Lessee, McCulloch v. Maryland, and Cohens v. Virginia.22 This Article demonstrates that an early American debate over whether the written Constitution should be interpreted according to the rules applicable to public or private legislation underlies each of these major moments in early American legal history. The insights of Part III should change how these cases are taught, because they reveal a key intellectual thread connecting these cases to each other and help to place them in the context of the broader legal culture of their time.

Part IV connects these insights to contemporary theoretical debates. As this Article explains, the public-act analogy was a leading view during the Founding era. Those who believed that the Constitution should be construed using the rules commonly applied to public legislation assumed that courts would read its provisions to respond to new problems and conditions that its drafters and ratifiers could not have foreseen.23 The historical pedigree of this dynamic, flexible approach should challenge those who claim that a narrow, restrictive reading of the Constitution is more faithful to the Framers’ intent.

Part IV also presses a methodological point too often overlooked in contemporary debates over how early American lawyers and judges approached problems of interpretation. It argues that an anachronistic focus on early federal courts has limited scholarship in this area. Because only the state courts had a broad range of jurisdiction and because of their relative prestige and importance, state courts collected the greatest legal talent. The influence of some state-court judges during the nineteenth century rivaled that of any Supreme Court Justice.24 State-level sources are therefore critical to understanding the mainstream of American legal thought of this era.

Like the unwarranted focus on federal courts, a preoccupation with contemporary interpretive debates risks distorting our reading of the historical record. If our purpose is to discover what the Framers really thought, we must take early American jurists seriously as sophisticated legal thinkers with their own culturally and historically specific views.