I thank the Federalist Society for the opportunity to briefly respond to Robert Natelson’s recent article The Original Understanding of the Indian Commerce Clause: An Update.
Natelson’s article alleges that my 2015 Yale Law Journal article Beyond the Indian Commerce Clause contained what he claimed were a “disturbing number of misleading or otherwise defective citations,” and references a “cite check” of my article. As readers may know, I have already posted a detailed reply to this supposed “cite check.” What was actually “disturbing,” in my view, was that Natelson repeatedly asserted that sources were non-existent when, as I showed, they were exactly where my article said they were. Moreover, to claim that my citations were misleading, Natelson rooted around in the historical record and concocted various unsubstantiated alternative readings of sources—interpretations unmentioned by anyone at the time and often at odds with the sources’ plain text.
I have now posted an additional brief response to some of the claims in Natelson’s new article. Here, I wanted to outline some of the key arguments.
Federalist No. 42: Natelson joins with Justice Thomas’s concurrence in Adoptive Couple in seizing on the language of “trade with Indians” in Federalist No. 42 as evidence of the Indian Commerce Clause’s narrow scope. But, contrary to their claims, James Madison did not say that “trade with Indians” was a synonym for the Commerce Clause. Rather, as the context reveals, Madison was discussing the shortcomings of the Articles of Confederation, specifically Article IX, which granted Congress the power of “regulating the trade” with Indians. Indeed, Federalist No. 42 explicitly praised the removal of the two qualifiers in Article IX that had protected state authority—hardly a ringing embrace of a states’ rights interpretation. Moreover, if the Framers had wanted to say “trade with Indians,” they knew exactly how to do so, since they had used that precise term in Article IX.
The Law Merchant: Natelson points to the provisions of the law merchant, particularly South Carolina’s regulatory scheme for Indian trade, as defining the scope of the commerce power. So I examined South Carolina’s regulations and found that the statutes routinely regulated all white inhabitants within Indian country, not just traders, and granted the governor and provincial authorities broad criminal and civil jurisdiction over both non-Indians and Indians. Imperial British trade regulations contained similar provisions.
Sydney: Natelson’s campaign against me began after I pointed out—as he has since conceded—that his prior article relied on an erroneous version of a statement from the Anti-Federalist Sydney. The corrected remarks stated that ratification would “totally surrender into the hands of Congress the management and regulation of the Indian affairs.” Having previously relied on Sydney’s supposed silence to support a narrow reading of federal authority, Natelson now argues that Anti-Federalist objections should be discounted, and that when Sydney said “Congress,” he actually meant the “federal government as a whole.” I think we should interpret Congress to mean Congress.
Methodology: Natelson inaccurately states that my article advanced a holistic interpretation of the Constitution. In fact, its claim was descriptive, not normative: it said that early Americans, especially the Washington Administration, adopted a holistic interpretation in Indian affairs. Whether they were correct to do so is a different question, but the evidence of this approach is pretty strong—indeed, Natelson himself has elsewhere described Founding-era interpreters invoking the “whole potpourri” of federal authority over Indian affairs.
Additional Evidence: I discuss two new sources—correspondence from the Treaty of Fort Stanwix and Thomas Jefferson’s proposed Louisiana Purchase amendment to the Constitution—that I believe both suggest that “commerce with Indians” was interpreted as a synonym for intercourse. I also cite evidence that Removal-era opposition to federal authority over Indian affairs was explicitly tied to southern states’ anxieties over slavery.
Clearly, Mr. Natelson and I could go back and forth debating this constitutional history ad infinitum, though I’m not sure that would be useful. Litigating evidence piece by piece conflicts with good history: my conclusions were based not on any single isolated piece of evidence but on the dozens of primary sources that my article cited, most of which Natelson evidently could not find even minor grounds to challenge despite his extensive efforts. At some point, we have to look at the weight of the evidence and decide which interpretation fits better. I find Natelson’s views implausible and flawed, but my contrary reading, though I think much better supported with extensive evidence, is still an interpretation. The danger of such intellectual honesty, of course, is that it can be weaponized, a supposed concession of doubt contrasted with willful certainty.
Here, however, it is worth remembering the burden of proof. Natelson is seeking to overturn a settled interpretation of the U.S. Constitution dating back to at least Chief Justice John Marshall (and in my view, even earlier), reinforced by dozens of subsequent decisions. To quote Gamble v. United States, where the Court similarly confronted a call to discard precedent spanning “170 years,” “the historical evidence must, at a minimum, be better than middling.” In my view, Natelson’s evidence is worse than middling; it is weak and results-driven. But as always, readers will have to decide for themselves.
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