A Tavern in 1791

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Editor’s note: Barack Obama and other supporters of unlimited federal power would like us to believe that we can’t uncover the Constitution’s original meaning. In essence, they’re telling us that we don’t have a Constitution at all. Rob Natelson’s new book, The Original Constitution, shows us that such a view is little more than….a crock.

The following is the book’s preface, reprinted here with permission from the author. Audio version read by Jeff Riggenbach.

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It is Thursday, December 22, 1791. You live in Philadelphia, currently serving as the temporary capital of the newly-created United States of America. It has been only fifteen years since Independence was declared, and less than three years since the federal government began functioning under the United States Constitution.

For a long time, it had been touch-and-go as to whether the Constitution would be ratified at all. Two states initially refused to agree, and of the remainder five had approved the document only after the Constitution’s supporters and moderate opponents had cut a political deal calling for a Bill of Rights. As soon as the new Congress met, two of the most important states, Virginia and New York, petitioned for a new convention to re-write the Constitution. Only after Congress had approved the Bill of Rights did Virginia and New York abandon their petitions and only then did the last two hold-outs, North Carolina and Rhode Island, join the union. The fourteenth state, Vermont, came in at the beginning of 1791.

Earlier on this day, you learned that the Bill of Rights had finally been ratified on December 15. So now, you reflect, the union is reasonably secure, evening is approaching, and your work day is done—and you are on a Philadelphia street corner with nothing particular to do. The weather is chilly and blustery, but there is a cure for that: A warm punch in a cozy tavern.

You enter the tavern and look around for a seat. The place is nearly full. But there is bench space at a long wooden table at one side of the room. Sitting around the table are men you recognize— eminently respectable men— some of Philadelphia’s leading judges and lawyers. They are deep in debate about an abstruse point of real property law. Not being a lawyer yourself, you do not think of that sort of discussion as the key to a good time. But there are no other seats.

You slip into the empty chair and order your punch while the discussion swirls around your head. Eventually, you decide to turn the conversation elsewhere. You give a little cough.

The lawyers had barely noticed you, but now turn they their heads and break off the debate. “I regret that I feel unqualified to comment on your subject,” you say. “But, gentlemen, you know I am not a lawyer. May I suggest another topic?”

They seem interested. The prior discussion had been wearing thin anyway. “You no doubt have observed,” you continue, “that ten new constitutional amendments were proclaimed last week.”

“Yes,” responds one of your listeners. (You know him as a distinguished judge.) “They should work some change upon the system.”

“That is exactly what I wished to pursue,” you add. “What is that system? And what change does the Bill of Rights effect upon it?”

The lawyers look at each other. One of them—he is particularly known as an expert in wills and fiduciary trusts—smiles. “Well, my good man, that is an expansive inquiry whose response might consume some time. Are you otherwise engaged for the next few hours? ” The others laugh.

But you press your question. It is only seven o’clock, your spouse has gone to Carlyle to visit relatives and you are not “otherwise engaged.” Neither are you particularly eager to leave the warm tavern.

“I am at complete leisure,” you respond. “Please, say on.”

The lawyers glance at each other. “Well, why not?” asks one. “As it happens, we are not engaged either. The courts are closed tomorrow, and our wives are enjoying the comfort of each other’s society. I dare say they have no present need of us!” More laughter.

“I think I can speak for my learned colleagues here,” the trust attorney interjects, “when I tell you that there is no topic on which we would rather discourse that our new Constitution. We have exchanged views on this subject before, and we differ on the small points. But I flatter myself that we are in accord on the great ones.”

You are a bit amused at how easy it is to induce lawyers to talk. You draw deep from the warm punch, and sit back, and listen . . .

What would those lawyers tell you that evening? What would have been their understanding of the scope of the new federal government and its powers? What would they relate of the role of the states or of the people? What, in other words, was the actual legal force of our Constitution as lawyers and intelligent lay persons understood it in 1791?

This book answers those questions. The answers were important in 1791, but they are especially important today, when our federal government seems to have wandered so far from its roots. Those answers are deemed relevant to constitutional interpretation by almost everyone, and many people believe them dispositive. That is, many Americans—lawyers and non-lawyers alike—believe the Constitution’s original understanding should govern us today.

To be sure, some people—including the former law instructor who now serves as President of the United States—believe that it is impossible to reconstruct the Constitution’s original meaning. As this book demonstrates, that view is substantially incorrect. Competent Founding-Era scholars largely agree on what most of the original Constitution’s provisions mean. Much of the disagreement among constitutional writers results from unfamiliarity with the historical record or with eighteenth-century law. We will never be absolutely certain of the complete meaning of every constitutional clause. But we can reconstruct most of the original Constitution’s meaning with clarity and confidence.

The Structure and Approach of this Book

Our lawyer friends in the Philadelphia tavern probably would not explain the Constitution clause-by-clause, since it would be more efficient to approach the subject by general topic. That is the approach in this book. We shall begin by surveying some history and values shared by the Founding Generation—material you would not have had to ask about in 1791, but might not know today. Then the chapters proceed theme by theme. For example, one chapter examines the role of the states in the federal system. Another treats all of Congress’ enumerated (listed) powers, no matter where in the Constitution they appear. Still another discusses the executive branch. Because this book speaks of the Constitution as it stood in late 1791, it generally uses the past tense. This keeps the work internally consistent, and reminds you that the content does not necessarily reflect constitutional law as the courts apply it today.

Footnotes and Bibliography

Most of the conclusions in this book are based on the densely-referenced studies listed in the chapter-by-chapter bibliography. Others are based on new research. In general, I have limited footnotes to four functions: providing cross-references to other parts of the book; providing references to the part of the Constitution then under discussion; citing material not found in the studies listed in the bibliography; and, in a few cases, commenting on modern constitutional issues related to the text.

Framers, Ratifiers, Federalists, Anti-Federalists, and Founders—the Words Defined

This book refers frequently to the views, goals, methods, and comments of the people who wrote, debated, and adopted the Constitution and the Bill of Rights. The Framers were the fifty-five men who drafted the Constitution at the federal convention in Philadelphia, between May 29 and September 17, 1787. The Ratifiers were the 1,648 delegates at the thirteen state ratifying conventions meeting from late 1787 through May 29, 1790.

The Federalists were participants in the public ratification debates who argued for adopting the Constitution. History has labeled (unfairly) their opponents as Anti-Federalists. The Founders comprised all who played significant roles in the constitutional process, whether they were Framers, Ratifiers, Federalists, or Anti-Federalists. Although the Framers and Ratifiers were all male, the Founders were not. Women such as Mercy Otis Warren, an important Anti-Federalist writer (and later a leading historian), helped to shape public opinion about the Constitution.

Also among the Founders were the members of the Confederation Congress (1781-89) and its leading officers, as well as the members of the initial session of the First Federal Congress (1789). That session drafted the Bill of Rights and debated and resolved several constitutional issues while North Carolina and Rhode Island were still weighing whether to join the union, and while Virginia and New York were petitioning for a convention to propose amendments.

Many Founders fit into more than one category. For example, James Madison and Alexander Hamilton were Framers, Ratifiers, leading Federalists. John Jay, who served the Confederation as Secretary for Foreign Affairs, did not attend the constitutional convention, so he was not a Framer. But he did serve as a delegate to the New York State ratifying convention, and he wrote some of the essays in The Federalist (or, as they are commonly called, The Federalist Papers) urging that the Constitution be approved. He was therefore a Ratifier and a Federalist as well as a Founder. Elbridge Gerry of Massachusetts actively participated in the federal convention, but publicly opposed the final result, so he was a Framer and an Anti-Federalist. He was not a Ratifier, but did go on to play a prominent role in the First Federal Congress. Like Gerry, George Mason was a Framer and an Anti-Federalist. He also was a delegate at the Virginia ratifying convention, and therefore a Ratifier.

In this book, the phrase Founding Generation means the entire involved populace—Framers, Ratifiers, Federalists, Anti-Federalists, Founders, and anyone else participating formally or informally in the great national debate over ratification.

Evidence for the Original Constitution

Lawyers, judges, and scholars seeking the Constitution’s original legal effect use certain “standard sources.” These sources include the text of the Constitution itself, the federal convention notes prepared by James Madison and other delegates, debates in the state ratifying conventions, The Federalist, and a few other documents, such as the Articles of Confederation and the early state constitutions.

The standard sources are of great value, but they are not sufficient. For example, the royal commissions and instructions to colonial governors helped shape the Founding-Era understanding of the executive power, but those sources are rarely referenced today. The Federalist exercised an important influence in the ratification debates, but lesser-known writings exercised more.

Another valuable source often overlooked is the law of the Founding-Era. Most of the leading Founders were lawyers and the general public was far more knowledgeable about law than it is today. The Constitution was, of course, a legal document written in a particular legal environment. So you need to know something of the 1787 law to fully understand the meaning of a legal document written in 1787. Sometimes a few pages from Bacon’s Abridgment or Jacob’s New Law-Dictionary can resolve decades of academic dispute.

For these reasons, lawyers, judges, and scholars have been paying more and more attention to evidence outside the standard sources. Herbert Storing’s The Complete Anti-Federalist was published in 1981. It is a collection of the long-neglected arguments against the Constitution. The Wisconsin Historical Society has been issuing its multi-volume Documentary History of the Ratification of the Constitution. The National Historical Publications and Records Commission and George Washington University have sponsored the Documentary History of the First Federal Congress. Dedicated people, such as Texas attorney Jon Roland (www.constitution.org) have posted on the Internet hundreds of documents previously accessible only in top academic libraries. The Gale Company’s Eighteenth Century Online database now makes available much of the Founders’ literary world, enabling you to find dozens, sometimes thousands, of word usages in a few seconds.

In writing this book, I have had the advantage of all those sources.

Rob Natelson is a recently-retired Professor of Law at the University of Montana and a leading constitutional scholar. He is co-author of a forthcoming book on the Necessary and Proper Clause to be published by Cambridge University Press. He is also the author of The Original Constitution: What it Actually Said and Meant, published by the Tenth Amendment Center. Professor Natelson is a Senior Fellow in Constitutional Jurisprudence at the Independence Institute.