Cite as: 521 U. S. 898 (1997)
Stevens, J., dissenting
the early years of the Republic. See ante, at 907-908. This reasoning is misguided in principle and in fact. While we have indicated that the express consideration and resolution of difficult constitutional issues by the First Congress in particular "provides 'contemporaneous and weighty evidence' of the Constitution's meaning since many of [its] Members . . . 'had taken part in framing that instrument,' " Bowsher v. Synar, 478 U. S. 714, 723-724 (1986) (quoting Marsh v. Chambers, 463 U. S. 783, 790 (1983)), we have never suggested that the failure of the early Congresses to address the scope of federal power in a particular area or to exercise a particular authority was an argument against its existence. That position, if correct, would undermine most of our post-New Deal Commerce Clause jurisprudence. As Justice O’Connor quite properly noted in New York, "[t]he Federal Government undertakes activities today that would have been unimaginable to the Framers." 505 U. S., at 157.
More importantly, the fact that Congress did elect to rely on state judges and the clerks of state courts to perform a variety of executive functions, see ante, at 905-909, is surely evidence of a contemporary understanding that their status as state officials did not immunize them from federal service. The majority's description of these early statutes is both incomplete and at times misleading.
For example, statutes of the early Congresses required in mandatory terms that state judges and their clerks perform various executive duties with respect to applications for citizenship. The First Congress enacted a statute requiring that the state courts consider such applications, specifying that the state courts "shall administer" an oath of loyalty to the United States, and that "the clerk of such court shall record such application." Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103 (emphasis added). Early legislation passed by the Fifth Congress also imposed reporting requirements relating to naturalization on court clerks, specifying that failure to perform those duties would result in a fine. Act of June 18,
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