Concordia res Parvae Crescunt
by Rob Natelson, Electric City Weblog
The Founders were aware that, as is true of any legal document, the Constitution’s application to new cases sometimes would not be obvious, and the instrument would have to be interpreted. The Founders expected future interpreters to resort to the “meaning of the makers.â€
One way to help determine the “meaning of the makers†was to employ long-standing guidelines for legal interpretation – called “rules of construction.†The rules of construction were considered to be of very great authority.
Perhaps 90 percent of them were stated in Latin, with the rest in English or Norman French. Many, if not most, of them are still used by lawyers and judges today when they interpret legal documents.
One particularly important rule of construction was Designatio unius est exclusio alterius – “the naming of one thing implies the exclusion of the other.â€Â Example:  If your spouse tells you to go to the grocery store and buy “cucumber, lettuce, milk, and eggs,†he or she probably is NOT suggesting that you buy cheese.
The Constitution listed over 30 powers of Congress. But the Constitution’s advocates pointed out that the designatio unius maxim made the list exclusive: Congress would have no powers not on the list.
To quiet fear from the Constitution’s opponents that the designatio unius rule might be disregarded, both sides agreed to adopt the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.â€
Thus, Congress was given various listed powers – such as authority to regulate commerce, to tax, to coin money, and to govern the federal territories and enclaves (such as D.C). But otherwise, Congress received no authority to control education, manufacturing, agriculture or a lot of other things Congress that presumes to control today.
Robert G. Natelson is Professor of Constitutional Law, Legal History, Advanced Constitutional Law, and a seminar on the First Amendment at the University of Montana. He is a David Mason Scholar, and is a recognized national expert on the framing and adoption of the United States Constitution. He edits the website, The Scholarship of the Original Understanding of the Constitution.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been published or cited by many top law journals. (See: www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado's Independence Institute.
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Well said, and important. There is a considerable review of the various jurisdictions occurring in whatever one might call the post Ron Paul 08 efforts, in particular common and maritime laws. Rightly so, pun intended.
Observe the popularity of Atlas Shrugged in the past few months, caused by the intrinsic utility of individuals resisting collectivism, and the lunacy that is wealth redistribution by fiat. So I've asked myself and others for solutions that can work to end it. Demanding either a fully common or fully corporate legal framework (at the point of a gun, in fact) seems viable. I would prefer common law, as "fictional persons" are somewhat problematic - but I could make either work.
What is not an option is allowing the kind of loose application you identify above. It might well be this year that the veil falls, leaving some very naked politicians. People are pretty smart, and quite connected - accordingly the common law meme has traction, and is probably the shortest solution to the problems created by and for the jerks who covet power. I just want to be free - and in any direction I look I see Americans who agree, though possibly without having read as many books.
But I'm pretty sure you'll get more positive feedback than just me. ;)
"With respect to the two words "general welfare," I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."
--James Madison
Tenther Radio!
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
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