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In the modern era, we have almost completely lost track of the relationship that the Framers of the United States Constitution perceived between the structure of our federal system and the protection of popular rights. At least two obvious components of this confusion persist. First, as we have come to think of rights almost exclusively in terms of the claims of individuals against the government, we have lost the ability to hear the Framers' voices referring to rights held by the people in their collective capacity, including the rights of the people within each of the sovereign states to be free from undue federal intrusion on their power of self-governance. Second, our familiarity with the modern judiciary's reliance upon specific textual rights provisions as trumps against otherwise valid claims of legislative authority has blinded us to the fact that claims based on lack of governmental authority are also individual rights claims. Most Americans, and even many legal thinkers, find it difficult to fathom that the Framers of the unamended Constitution saw this limited grant of authority as an adequate alternative to a comprehensive statement of rights in a declaration or bill of rights.

These modern tendencies of thought have been powerfully reinforced by the reality that the Framers' expectations of significantly limited federal authority have been largely swept aside in the twentieth century. This expansion of federal power may have been inevitable, in which case the Framers were wrong in assuming that the limited grant of authority would be a sufficient means for securing a wide range of rights in our system of fundamental law. In this article, the author argues that even if this were true, however, it does not warrant the modern tendency to denigrate their position as disingenuous or obviously implausible, let alone to refuse to acknowledge their argument for limited federal authority as its own distinctive form of rights discourse.

Publication Citation

43 Vill. L. Rev. 17 (1998).