In an interesting new law-review article titled “The Constitutional Law of Interpretation,” Notre Dame law professor Anthony Bellia and George Washington law professor Bradford Clark highlight the “distinctive function” of the original Constitution as “an instrument used by the people of the several States to transfer a fixed set of sovereign rights and powers from one group of sovereigns (the States) to another sovereign (the federal government), while maintaining the ‘States’ as separate sovereigns with residual authority.” They explain that the “law of nations” (what we today might loosely call international law) “prescribed rules that governed both the formation and the interpretation of instruments used to transfer sovereign rights.” In particular:

Under these rules, legal instruments (regardless of their form) could transfer sovereign rights only if they did so in clear and express terms, and those terms were to be given their ordinary and customary meaning as of the time of adoption.

Bellia and Clark argue that these background rules mean that “the Constitution itself requires some form of originalism in constitutional interpretation.” They also conclude that the Supreme Court has properly employed three doctrines—sovereign immunity, anticommandeering, and equal sovereignty—to uphold the states’ residual sovereignty.