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103 Tex. L. Rev. Online 1 (2024)

handle is hein.journals/seealtex103 and id is 1 raw text is: May 30, 1787 David S. Schwartz* In Federalist 39, James Madison characterized the proposed Constitution as partly federal and partly national1 Since ratifi- cation, the proportion of those parts-the degree to which the Constitution is national or federal-has been the subject of the most frequent, sustained, and intense debates in constitutional law and politics. From the 1791 debate over the Bank of the United States, to slavery and the secession crisis, to the rise of Jim Crow, to the mid-twentieth century civil rights movement, to the twenty-first century debates over national health care pol- icy-to name just a few constitutional controversies-the theme of the national versus federal character of the Constitution has occupied a central place and produced varying answers about which characterization is more correct. And the question whether the Constitution is more national or more federal has only been confused by an evolution in what the word federal means. Since at least the New Deal, our con- stitutional order has become accustomed to using the word fed- eral to refer to a strong central government presiding over states possessing very limited sovereignty. But the delegates to the Constitutional Convention in Philadelphia in the spring and summer of 1787 used the term national to describe that gov- ernmental structure, while reserving federal to describe what * Frederick W. & Vi Miller Professor of Law, and Vilas Distinguished Achievement Professor, University of Wisconsin Law School. Copy- right © 2024 by David S. Schwartz. I am grateful to Tonya Brito, An- drew Coan, Jonathan Gienapp, Alexandra Huneeus, John Mikhail, and Nina Varsava for reviewing and commenting on drafts of this es- say, and to Nicholas Surprise for research assistance. ' THE FEDERALIST No. 39, at 246 (Madison) (Clinton Rossiter ed. 1961). 1

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